Whether Section 14 of the Insolvency and Bankruptcy Code, 2016, which provides for a moratorium for the limited period mentioned in the Code, on admission of an insolvency petition, would apply to a personal guarantor of a corporate debtor?
The amended Section reads as follows:
“14. Moratorium.— xxx xxx xxx (3) The provisions of sub-section (1) shall not apply to—
(a) such transactions as may be notified by the Central Government in consultation with any financial sector regulator;
(b) a surety in a contract of guarantee to a corporate debtor.”
The Insolvency Law Committee, appointed by the Ministry of Corporate Affairs, by its Report dated 26.03.2018, made certain key recommendations like:
“…….since many guarantees for loans of corporates are given by its promoters in the form of personal guarantees, if there is a stay on actions against their assets during a CIRP, such promoters (who are also corporate applicants) may file frivolous applications to merely take advantage of the stay and guard their assets. In the judgments analysed in this relation, many have been filed by the corporate applicant under Section 10 of the Code and this may corroborate the above apprehension of abuse of the moratorium provision.
The Committee concluded that Section 14 does not intend to bar actions against assets of guarantors to the debts of the corporate debtor and recommended that an explanation to clarify this may be inserted in Section 14 of the Code. The scope of the moratorium may be restricted to the assets of the corporate debtor only.”
The Report of the said Committee makes it clear that the object of the amendment was to clarify and set at rest what the Committee thought was an overbroad interpretation of Section 14. That such clarificatory amendment is retrospective in nature.
“In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is ‘to explain’ an earlier Act, it would be without object unless construed retrospective. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended. The language ‘shall be deemed always to have meant’ is declaratory, and is in plain terms retrospective. In the absence of clear words indicating that the amending Act is declaratory, it would not be so construed when the pre-amended provision was clear and unambiguous. An amending Act may be purely clarificatory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect and, therefore, if the principal Act was existing law which the Constitution came into force, the amending Act also will be part of the existing law.”
Dispute between Parents of the child and mother removed the child to India. Mother approaching family court at New Delhi, India and Father at Illinois, USA.
Mother/appellant and minor child are presently in New Delhi and the appellant has no intention to return to her matrimonial home in the U.S.A. The appellant has apprehensions and serious reservations on account of her past experience in respect of which we do not think it necessary to dilate in this proceedings. That is a matter to be considered by the Court of Competent Jurisdiction called upon to decide the issue of dissolution of marriage and/or grant of custody of the minor child, as the case may be. For the time being, we may observe that the parties must eschew from pursuing parallel proceedings in two different countries. For, the first marriage between the parties was performed in New Delhi as per Anand Karaj Ceremony and Hindu Vedic rites on 31st October, 2010 and the petition for dissolution of marriage has been filed in New Delhi. Whereas, the civil marriage ceremony on 19th March, 2011 at Circuit Court of Cook County, Illinois, USA, was performed to complete the formalities for facilitating the entry of the appellant into the US and to obtain US Permanent Resident status. It is appropriate that the proceedings pending in the Family Court at New Delhi are decided in the first place including on the question of jurisdiction of that Court. Depending on the outcome of the said proceedings, the parties will be free to pursue such other remedies as may be permissible in law before the Court of Competent Jurisdiction. Continue reading “Custody of child who is citizen of USA”
Rule of Law:
Law, enacted for the benefit of the society by conferring rights on the citizens and to regulate social behaviour in many a sphere, is required to be implemented by the law enforcing agencies and the citizens are duty bound to follow the law treating it as sacred. Law has to be regarded as the foundation of a civilized society. The primary goal of law is to have an orderly society where the citizenry dreams for change and progress is realized and the individual aspiration finds space for expression of his/her potential. In such an atmosphere while every citizen is entitled to enjoy the rights and interest bestowed under the constitutional and statutory law, he is also obligated to remain obeisant to the command of law.
Duty of authorities:
There can be no shadow of doubt that the authorities which are conferred with the responsibility to maintain law and order in the States have the principal obligation to see that vigilantism, be it cow vigilantism or any other vigilantism of any perception, does not take place. When any core group with some kind of idea take the law into their own hands, it ushers in anarchy, chaos, disorder and, eventually, there is an emergence of a violent society. Vigilantism cannot, by any stretch of imagination, be given room to take shape, for it is absolutely a perverse notion. We may note here that certain applications for intervention and written notes have been filed in this regard supporting the same on the basis that there is cattle smuggling and cruel treatment to animals. In this context, suffice it to say that it is the law enforcing agencies which have to survey, prevent and prosecute. No one has the authority to enter into the said field and harbour the feeling that he is the law and the punisher himself. A country where the rule of law prevails does not allow any such thought. It, in fact, commands for ostracisation of such thoughts with immediacy. Continue reading “Directions to prevent cow vigilante and mob lynching”
Trade Mark MALABAR in public domain.
The appellant though claims exclusive right over the word ‘MALABAR’ since there is a disclaimer to the exclusive use of the word ‘MALABAR’, the appellant has no right over the exclusive use of the word ‘MALABAR’. The respondents have also inter alia brought on record the materials to show the registration of other goods under Class-30 with the word ‘MALABAR MONSOON’ granted in favour of Amalgamated Bean Coffee Trading Company Limited for Coffee Cream, Coffee included in Class-30. The registration of the mark ‘MALABAR MONSOON’ under Class-30 also contains similar disclaimer of the word ‘MALABAR’. Likewise, the label ‘MALABAR COAST’ has been registered in Class-30 for Coffee, Tea, Cocoa, Sugar etc. in favour of Tropical Retreats Private Limited which again contains a similar disclaimer for the exclusive use of the word ‘MALABAR COAST’. Having regard to the materials placed on record, we are of the view that the High Court rightly held that the appellant cannot claim exclusive right over the use of the word ‘MALABAR’. Continue reading “claim of exclusive right to trade mark in common use.”
Plea of fraud raised at the stage of execution of decree.
The assignment of agreement, which was basis of decree sought to be challenged claiming the signatures on the deed to bea forgery but no explanation offered for delay of 16 years in raising the question.
Kalyani executed an agreement for sale on 27.12.1968 in favour of second plaintiff-Vasudevan Pillai. Second plaintiff assigned the aforesaid agreement on 05.08.1978 in favour of one Rajayyan and the said Rajayyan assigned the agreement in favour of third plaintiff-Selvi on 10.03.1983. As pointed out earlier, all the three plaintiffs filed final decree application in I.A. No.120 of 1985. After the disposal of the matter by the first appellate court and when the second appeal was pending before the High Court, second plaintiff Vasudevan Pillai filed an affidavit on 07.01.2013 before the trial court – District Munsiff Court, Kuzhithurai alleging that a fraud has been played on him and denying the right of third plaintiff-Selvi to pursue the final decree application. Continue reading “Plea of fraud after 16 years delay”
Duty of appellate court:
It is the duty of an appellate Court to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the said evidence can be relied upon or not and even if it can be relied upon, then whether the prosecution can be said to have been proved beyond reasonable doubt on the said evidence. The credibility of a witness has to be adjudged by the appellate court in drawing inference from proved and admitted facts. It must be remembered that the appellate court, like the trial court, has to be satisfied affirmatively that the prosecution case is substantially true and the guilt of the accused has been proved beyond all reasonable doubt as the presumption of innocence with which the accused starts, continues right through until he is held guilty by the final Court of Appeal and that presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial court.
Appeal against acquittal:
The power of the appellate Court in an appeal against acquittal is the same as that of an appeal against conviction. But, in an appeal against acquittal, the Court has to bear in mind that the presumption of innocence is in favour of the accused and it is strengthened by the order of acquittal. At the same time, appellate Court will not interfere with the order of acquittal mainly because two views are possible, but only when the High Court feels that the appreciation of evidence is based on erroneous considerations and when there is manifest illegality in the conclusion arrived at by the trial Court.
In the present case, there was manifest irregularity in the appreciation of evidence by the trial Court. The High Court based on sound principles of criminal jurisprudence, has interfered with the judgment of acquittal passed by the trial Court and convicted the accused as the prosecution was successful in proving the guilt of the accused beyond reasonable doubt.
Distinction between Murder and Homicide not amounting to murder:
It is important to have a look at the evidence of PW 5-Dr. Arvind Kanwar who has conducted Post mortem and according to him there was an incised wound on the right parietal region of size 4” and 10” above right ear and another incised wound of 1” in size on the right index finger. He has deposed that “the brain was found congested, yet no fracture was seen on the scalp”. Though in the cross examination he has stated at one place that the injury No 2 on the scalp might be ‘grievous’ that caused brain hemorrhage. This particular fact is not noted in the postmortem report. Regarding the cause of such injury, PW5 stated that it can be caused by striking with sharp edged object and the depth of the scalp injury depends upon the force and speed. He maintains the stand that it was a ‘scalp injury’ and not ‘skull injury’. Moreover, he did not measure the depth of the head injury which was necessary for classification of injury. Continue reading “Death due to brain hemorrhage”
Framing of question of law:
High Court framed 6 questions of law at the time of admission of appeal but delivered no judgement on those questions. However it framed two other questions in the judgement and decided the appeal. Procedure if legal?
First, though it rightly framed six substantial questions of law at the time of admission of the appeal on 30.11.2002 as arising in the case but erred in not answering these questions.
The High Court had the jurisdiction to decide the second appeal only on the six substantial questions of law framed at the time of admitting the appeal. In other words, the jurisdiction of the High Court to decide the second appeal was confined only to six questions framed and not beyond it. Continue reading “Procedure for disposal of Second Appeal by High Court.”
Effect of Re-grant of Land.
Whatever so-called rights, title and interest which the original holders derived from the orders of re-grant in 1973 in the suit property in their favour, the same stood extinguished by efflux of time.
The reason was that in order to keep such new rights intact and enforceable, the original holders (three PATIL) were under a legal obligation to have filed a suit for claiming a declaration and possession of the suit land and this ought to have been done by them within 12 years from the date of re-grant, i.e., 1973.
They, however, failed to do so within 12 years and when they actually tried to exercise their rights by filing the suit in 2004 (after 31 years from 1973), by then it was too late to exercise such rights in law. By that time, their rights in the suit land stood extinguished. Continue reading “Extinguishment of right, title and interest in property”
Applicability of Arbitration Act, 1996.
What is material for the purposes of the applicability of 1996 Act is the agreement between the parties to refer the disputes to arbitration. If there be such an arbitration agreement which satisfies the requirements of Section 7 of 1996 Act, and if no arbitral proceeding had commenced before 1996 Act came into force, the matter would be completely governed by the provisions of 1996 Act. Any reference to 1940 Act in the arbitration agreement would be of no consequence and the matter would be referred to arbitration only in terms of 1996 Act consistent with the basic intent of the parties as discernible from the arbitration agreement to refer the disputes to arbitration. Continue reading “Arbitration Clause referring to 1940 Act”