Newsletter ARBITRATION AND CONCILIATION ACT, 1996 JANUARY, 2021 High Courts power under Article 226/227 to interfere with the arbitration process needs to be exercised in exceptional rarity. Recently, A Three Judges Bench of the Hon’ble Supreme Court of India in case titled “Bhaven Construction Through Authorised Signatory Premji Bhai k. Shah vs. Executive Engineer Sardar Sarovar Narmada Nigam Ltd. & Anr.”, has held that the power of the High Court under Article 226/227 of the Constitution of India to interfere with an arbitration process needs to be exercised in exceptional rarity, wherein one party is left remediless under the statute or a clear ‘bad faith’ shown by one of the parties. The court further observed that if the courts are allowed to interfere with the arbitral process beyond the ambit of the enactment, then the efficiency of the process will be diminished. Read More... Section 12(5) of Arbitration & Conciliation Act which deals with ineligibility of appointment as arbitrator is a mandatory & non-derogable provision. Recently, A Three Judges Bench of the Hon’ble Supreme Court of India in case titled “Haryana space application centre (Harsac) & Anr vs. M/s Pan India Consultants Pvt. Ltd.”, has held that Section 12(5) of Arbitration & Conciliation Act which deals with ineligibility of appointment as arbitrator is a mandatory & non-derogable provision. The court was considering an appeal filed by Haryana Space Application Centre (HARSAC) against an order of the Punjab and Haryana High Court which had in light of the Covid Pandemic, granted an extension of 4 months to enable the parties to conclude their arguments within 3 months, and a period of 1 month for the Arbitration tribunal to pass the Award. Read More... Order terminating arbitration proceedings under Section 32(2)(c) Arbitration Act not an award: Delhi High Court. Recently, the Hon’ble Delhi High Court in OMP(T)(COMM) 80/2020, titled as PCL Suncon v. NHAI has ruled that an order terminating arbitration proceedings under Section 32(2)(c) of the Arbitration & Conciliation Act, 1996 is not an award, and can be challenged under Section 14(2) of the Act. Read More... INSOLVENCY AND BANKRUPTCY CODE, 2016 The Adjudicating Authority would not be justified in coming to conclusion that notice has not been served on the Corporate Debtor, where the Corporate Debtor has refused to accept delivery of notice. Recently, the Hon’ble National Company Law Appellate Tribunal in case titled “Sri. D. Srinivasa Rao  vs. Vaishnovi Infratech Ltd.”, while setting aside the order passed by the adjudicating authority held that the Demand Notice having been returned unserved would amount to non-delivery of notice but where the Corporate Debtor who has refused to accept delivery of notice, the Adjudicating Authority would not be justified in coming to conclusion that notice has not been served on the Corporate Debtor. Read More... Whether the Adjudicating Authority can direct the CoC to consider the Resolution Plan of a person who was not part of CIRP? Recently, the Hon’ble NCLAT while refferring to the judgments passed by the  Hon’ble Supreme Court in the matter of Maharashtra Seamless Limited vs Padmanabhan Venkatesh & Ors. and Shrawan Kumar Agrawal Consortium Vs. Rituraj Steel Private Limited [2020] held that we are of the considered view that the Adjudicating Authority has a very limited power of judicial scrutiny under Section 31 of the Code and the statutory provision does not permit the Adjudicating Authority to interfere with the commercial wisdom of the COC. Even for maximization of value of assets of the Corporate Debtor. In the impugned order Ld. Adjudicating Authority erroneously assumed that it is the duty of the Adjudicating Authority to satisfy itself that the price offer is reasonable and adequate. For this purpose, considered the liquidation value and fair value of the Corporate Debtor and price offered by successful Resolution Applicant and reached a conclusion that the Respondent No. 1’s offer is around 12% more than the offer of successful Resolution Applicant. We are of the considered view that Ld. Adjudicating Authority has exceeded his jurisdiction and indulge in quantitative analysis which is not permissible under Section 31 of the I&B Code. Read More... No MSME benefit under Section 240A of IBC, if date of registration after admission of  CIRP Recently, the Hon’ble NCLAT in its judgment has held that any company which turn into an MSME company after initiation of Corporate Insolvency Resolution Process shall not have any rights to take the benefit as envisaged under section 240A of the Insolvency and Bankruptcy Code, 2016. Read More... Supreme Court Upholds Sections 3, 4 & 10 of Insolvency and Bankruptcy Code, Amendment Act 2020. Recently, A Three Judges Bench of the Hon’ble Supreme Court of India in case titled “Manish Kumar vs. Union of India & Ors.”, upheld the constitutional validity of Sections 3, 4 & 10 of Insolvency and Bankruptcy Code, Amendment Act 2020. While upholding the amendments, the Hon’ble Court provided relief under Article 142 of the Constitution of India. Read More... Corporate Debtor shall not be saddled with the cost of CIRP, after the order passed by the Adjudicating Authority initiating CIRP is reversed. Recently, the Hon’ble Apex court in its judgment passed in the matter of  Rajkumar Brothers And Production Private Limited versus Harish Amilineni Shareholder and erstwhile Director of Amilionn Technologies Private Limited & Anr ,  has upheld the order passed by the Hon’ble NCLAT wherein, it has been held that The IRP/RP will place particulars regarding CIRP costs and fees before the Adjudicating Authority and the Adjudicating Authority after examining the correctness of the same will direct the Operational Creditor to pay the same in time to be specified by the Adjudicating Authority. Read More... OTHER RELEVANT JUDGMENTS PASSED BY VARIOUS COURTS UNDER VARIOUS LAWS What kind of reporting amounts to 'media trial'? the Hon’ble High Court of Bombay gives guidelines. Recently, the Hon’ble High Court of Bombay in case titled “Nilesh Navalakha and Others vs. Union of India and Others”, has observed that the media ought to avoid reports touching upon an ongoing investigation and present facts which are in public interest rather than "what, according to the media, the public is interested in." The Court further directed the print and electronic media to exercise restraint and refrain from publishing any news item, debate, discussion on interview while reporting on certain cases or at a particular stage of investigation. Read More... Bank liable for fraudulent online transaction if account holder's fault not proved. Recently, the National Consumer Disputes Redressal Commission (NCDRC) in case titled “HDFC Bank Limited & Ors. vs. Jesna Jose”, has held that in case of fraudulent transactions leading to withdraw of money from a person's bank account, the concerned bank shall be responsible for the loss, not the customer, if it is not proven that the fraudulent transaction had taken place due to account holder's fault. Read More... Only wilful and deliberate disobedience to courts orders amounts to contempt. Recently, the Hon’ble Supreme Court of India in case titled “Raman Narag vs. Ramesh Narag”, has observed that before punishing a person for non-compliance of the decision of the Court, the Court must not only be satisfied about the disobedience of any judgment, decree, direction, writ or other process but should also be satisfied that such disobedience was wilful and intentional. Read More... Writ jurisdiction cannot be utilised by a litigant only to take chances. The Hon’ble Supreme Court of India in case title “M/s. Vellanki Frame Works vs. The Commercial Tax Officer, Vishakhapatnam”, while dismissing an appeal against the judgment passed by the High Court of Hyderabad, observed that a litigation cannot be allowed to be unendingly kept alive at the choice of a litigant. Read More... Husband not entitled to seek information regarding bank details & income tax returns of his wife. In a significant order, the Central Information Commission in case titled “Pawan Kumar Saluja vs. CPIO, the Income Tax Officer”, has said that a Husband is not entitled to seek information regarding bank details & income tax returns of his wife under the Right to Information Act, 2005. CIC observed that the filing of the Income Tax Returns by an individual with the Income Tax Department is not a public activity and in the absence of any larger public interest in the matter, the husband is not entitled to seek information regarding bank details & income tax returns of his wife which is exempted u/Section 8(1)(j) of the RTI Act, 2005, Section 11 is not required to be invoked. Read More... Incorporation of one sided and unreasonable clauses in apartment buyers agreement constitutes an ‘unfair trade practice’. The Hon’ble Supreme Court of India in case title “Reo Grace Realtech Pvt. Ltd. vs. Abhishek Khanna & Others”, has held that incorporation of one sided and unreasonable clauses in apartment buyers agreement constitutes an ‘unfair trade practice’ under Section 2(1)(r) of the Consumer Protection Act. The Bench further observed that the developer cannot compel the apartment buyers to be bound by the one-sided contractual terms contained in the apartment buyer's agreement. Read More... IMPORTANT NOTIFICATIONS/ORDERS PASSED BY THE COURTS IN VIEW OF THE OUTBREAK OF COVID-19 AND NATIONWIDE LOCKDOWN DECLARED BY THE CENTRAL GOVERNMENT The Hon’ble High Court of Delhi modifies office order and has allowed hybrid appearance i.e. lawyers may appear through virtual mode while the other may appear through physical mode. The Hon’ble High Court of Delhi through an office order issued under the authority of Chief Justice DN Patel intimated that the matters shall be taken up through physical mode as per the roster of sitting of the Hon'ble Judges of the High Court. However, request for taking up any such matter through virtual mode shall be entertained by the court wherever advance intimation is provided. The Registrar General also intimated that the High Court is already taking steps for hybrid hearing so that in a given case, one party may join the proceedings through virtual mode while the other is present physically in the Court. Read More... Chennai Bench of NCLAT will start its functioning from 25.01.2021 through Virtual Mode. Chennai Bench of National Company Law Appellate Tribunal (NCLAT) has started its functioning from 25.01.2021 through Virtual Mode. Therefore, the filing of Fresh Appeals against the orders of the Benches of the National Company Law Tribunal having jurisdiction in respect of States of Karnataka, Tamil Nadu, Kerala, Andhra Pradesh and Telangana and Union Territories of Lakshadweep and Puducherry shall have to be made before the Chennai Bench of NCLAT w.e.f. 25.01.2021. Further, the filing of Interlocutory Applications / Reply / Rejoinder etc. in respect of aforementioned appeals will also be made before the Chennai Bench of NCLAT as per NCLAT Rules, 2016 and SOP. Read More...   NEW DELHI X -3, Green Park Main, New Delhi, 110016, Telephones: +91 11 2652 0041-42 MUMBAI Regus Business Centre, G 1 & F 1 Trade Centre, Bandra Kurla Complex, 400051, Mumbai For further / specific information, please contact us at: info@tandonandco.com Disclaimer: The contents of this newsletter are intended for information purposes only, and parts of this newsletter are based on news reports and have not been independently verified. The newsletter is not in the nature of a legal opinion or advice. They may not encompass all possible regulations and circumstances applicable to the subject matter and readers are encouraged to seek legal counsel prior to acting upon any of the information provided therein. 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