Monday, 1 January 2018
Alpha Partners, alongwith CBRE as the lead member, closes the sale of ITDC Ashoka Hotel, Jaipur to the State Government of Rajasthan. The transaction is pursuant to the disinvestment drive of the Government of India. Alpha’s role was to structure the transaction to achieve the objectives of the transaction, review of the property related documents, submission of report on possible structures, drafting of transaction documents between Ministry of Tourism and State Government.
Alpha assisted Mayer Brown LLP in representing ARM Inc. in the acquisition of ChaoLogix Inc and Chaologix Technologies India Private Limited which is an Indian subsidiary of ChaoLogix Inc. ChaoLogix is a US based company involved in developing computing architecture and chip sets and was acquired by ARM Inc. by way of a reverse merger and consequently Chaologix India became a downstream subsidiary of ARM Inc. Alpha’s role was to conduct due diligence of the Indian entity, review of merger agreement, assistance in closing and assistance in transition of the Indian business and staff to ARM’s Indian entity.
Alpha has recently been empaneled as a law firm with Industrial Finance Corporation of India (IFCI), Fedbank Financial Services Limited and IFCI Infrastructure Development Limited (IIDL).
Companies Act, 2013
The Parliament passes yet another amendment to the Companies Act, 2013 titled ‘Companies (Amendment) Bill, 2017’. The bill although passed by Parliament on December 19, 2017, is still pending official notification in the official gazette.
Insolvency and Bankruptcy Code
The lower house of the Parliament, Lok Sabha, has passed an important amendment to the new law on Insolvency and Bankruptcy. The bill is titled ‘The Insolvency and Bankruptcy Code (Amendment) Bill, 2017’ which is still required to be passed by the upper house and officially notified in the official gazette. The Bill prohibits certain persons from submitting a resolution plan in case of defaults. These include: (i) wilful defaulters, (ii) promoters or management of the company if it has an outstanding non-performing debt for over a year, and (iii) disqualified directors, among others. Further, it bars the sale of property of a defaulter to such persons during liquidation.
In response to deactivation of the director identification numbers (“DIN”) of the directors associated with companies which have failed to file their financial statements and annual returns for a continuous period of 3 years, the disqualified directors and defaulting companies have been making representations seeking an opportunity to rectify their defaults under Section 164 read with Section 167(1) of the Companies Act, 2013.
Condonationof Delay Scheme, 2018 (“COD Scheme”) was placed before the Delhi High Court with an intent to provide an opportunity to the defaulting companies and disqualified directors to file the overdue e-forms (along with the additional fee) with the Registrar of Companies (“ROC”) within prescribed time period. After filing the pending e-forms with the ROC, the defaulting companies are required to file an e-form for condonation of delay along with a fee of INR 30,000.
Key highlights of the Scheme:
1. The COD Scheme will remain valid from 01.01.2018 till 31.03.2018;
2. The Scheme is applicable to all defaulting companies (other than companies which have been stuck off from the register of companies);
3. Only the documents which were due for filing till 30.06.2017 can be filed under the COD Scheme;
4. The DINs of disqualified directors will be temporarily activated during the validity of the Scheme;
5. The benefits of this Scheme can be availed only for filing e-forms 20B/MGT-7, 21A/MGT-7, 23AC, 23ACA, 23AC-XBRL, 23ACA-XBRL, AOC-4, AOC-4 (CFS), AOC-4 (XBRL), AOC-4 (Non-XBRL);
The DIN of directors of companies whose name has been struck off from the register of companies and in respect of which an application for revival has been made with the NCLT, will be reactivated only upon NCLTs order subject to filing of pending documents/e-forms by the defaulting companies.
Monday, 2 October 2017
The Metropolitan Magistrate, Saket Court recently allowed the complaint of an individual under Section 156(3) of the Code of Criminal Procedure, 1973 and directed the Ambedkar Nagar Police Station, Delhi to register FIR and start investigation in allegations of forgery against Religare Finvest Limited (“Religare”) and Citifinance Consumer Finance Limited (“Citifinance”).
By way of facts, the father of the Complainant had procured a loan from Citifinance sometime in the year 2007, however subsequently the said loan was assigned by Citifinance in favour of Religare. Interestingly, the loan was procured only by the father of the Complainant; was signed by the father of the Complainant and the loan amount was disbursed in favour of the father of the complainant. While procuring the loan collateral was offered and which as such belonged to the father. Thereafter, Certain disputes arose between the father of the Complainant and Religare.
After lapse of couple of years, the Complainant received summons from the District Courts in Delhi wherein allegations were made that the Complainant procured loan from Citifinance as a co-borrower and failed to repay the same. It was only then that the Complainant became aware that the signatures of the Complainant were forged on the loan documents, which as such was only signed by the father of the Complainant.
The Complainant approached the local police, however, could not get the FIR registered. Eventually having failed after following all possible procedures, the Complainant approached the Court of Metropolitan Magistrate under Section 156(3) of the Code of Criminal Procedure, 1973 inter alia seeking directions to the effect that an FIR be lodged against the concerned employees of Religare and Citifinance for committing the offence of forgery. The Court while hearing called for Action Taken Report from the concerned police station.
After hearing extensive arguments and rejecting the reasons cited by the investigating agency for not registering an FIR, the Court accepted the application filed by the Complainant and directed registration of FIR.
Friday, 29 September 2017
Section 31D of the Copyright Act, 1957 of India was introduced vide an amendment to the Act in 2012 which provides for Statutory licence for broadcasting of literary and musical works and sound recording. Section provides that any broadcasting organisation desirous of communicating to the public by way of a broadcast or by way of performance of a literary or musical work and sound recording which has already been published may do so subject to the provisions of the Section.
Various stakeholders raised queries as to whether ‘any broadcasting organisation’ includes internet broadcasting organisations as well or only includes conventional media such as radio or TV.
The Department of Industrial Policy and Promotion, Ministry of Commerce and Industry (Copyright Section) has, vide office memo dated 5.9.17 clarified that ‘any broadcasting organisation’ shall include internet broadcasting organisations as well. In clarifying the above, the authority made reference to the definition and meaning of the term ‘communication to the public’ and observed that the same means and includes any media.
Reserve Bank of India, vide notification No. DNBR. 045/CGM (CDS)-2017 has specified that an institution that carries on ‘the business of a peer to peer lending platform’ shall be a Non-Banking Financial Company.
The term “the business of a peer to peer lending platform” shall mean the business of providing under a contract, the service of loan facilitation, via online medium or otherwise, to the participants who have entered into an arrangement with that platform to lend on it or to avail of loan facilitation services provided by it.
RBI had earlier released a consultation paper on P2P lending platforms where the central bank had proposed certain minimum eligibility criteria for registration of such platforms which were necessary in public interest and for regulation of such platforms.
Recognition of the P2P platforms as an NBFC has been a long standing demand of the industry and it provides a lot of clarity on how to run the business.
Section 2(87) of the Companies Act, 2013 defines the term ‘subsidiaries’ and recently, the proviso to the sub-section which provides for prescribing a limit to number of layers of subsidiaries which a holding company may have, has been notified. Companies (Restriction on number of layers) Rules, 2017 (the ‘Rules’) provides that a company cannot have more than two layers of subsidiaries except in following cases:
a. A banking company;
b. A systematically important non-banking financial company;
c. An insurance company;
d. A government company;
e. A company acquiring another company incorporated outside India with subsidiaries beyond two layers;
f. In computing two layers, a holding company having one layer of more than one wholly owned subsidiaries will be taken as one.
g. Those allowed under Section 186(1) of Companies Act, 2013.
Every company have more layers than prescribed are required to file a return with the Registrar of Companies and are restricted to add to the layers beyond two or such number as is existing as on the date of the Rules, whichever is more.
Tuesday, 5 September 2017
Monday, 4 September 2017
Wage Ceiling enhanced
The Ministry of Labour and Employment increased the wage ceiling under the Payment of Wages Act, 1936 from INR 18,000 per month to INR 24,000 per month vide notification S.O. 2806 (E) with effect from August 28, 2017. The Payment of Wages Act, 1936 will apply to a larger number of employees as a result of such increase.
New FDI Policy
1. The Department of Industrial Policy and Promotion recently released the consolidated FDI Policy vide circular no. D/o IPP F. No. 5(1)/2017-FC-1 dated August 28, 2017 (“New FDI Policy”). Under the New FDI Policy:
i. Conversion of a LLP having foreign investment into a company and vice versa, is allowed under automatic route, where there are no FDI linked conditions;
ii. Start-ups have been recognized under the New FDI Policy and have been allowed to issue equity shares, equity linked instruments or debt instruments to FVCI. Conditions for issue of convertible notes by start-ups to a person resident outside India have also been prescribed;
iii. The proposals requiring government approval will be dealt by the competent authority which has been defined under the New FDI Policy to mean the concerned administrative ministry/department empowered to grant government approval for foreign investment under the extant FDI Policy and FEMA Regulations;
iv. The approval of Reserve Bank of India shall not be required for establishment of branch office, liaison office or project office or any other place of business in India if the applicant is engaged in the business of telecom, defence, private security or information and broadcasting and the applicant has been granted a license/permission by the concerned ministry/regulator.
 Convertible notes have been defined to mean an instrument, issued by a start-up against receipt of money repayable at the option of the holder, convertible into equity shares within a period not exceeding 5 years.
Provisions related to investigation of companies by by Serious Fraud Investigation Office notified.
1. The Ministry of Corporate Affairs notified the provisions of sub-sections (8), (9) and sub-section (10) of Section 212 of the Companies Act, 2013 relating to investigation into the affairs of a company by Serious Fraud Investigation Office vide commencement notification dated August 24, 2017. In this regard, the Companies (Arrests in connection with Investigation by Serious Fraud Investigation Office) Rules, 2017 were also notified on August 24, 2017.
Revised secretarial standards released
2. The Institute of Company Secretaries of India notified the withdrawal of Notification ICSI No.1 (SS) of 2015 with respect to secretarial standards 1 & 2 (“Secretarial Standards”) with effect from September 30, 2017, vide notification dated August 16, 2017. The Institute announced that the revised Secretarial Standards will be applicable for compliance by all the companies (except the exempted class of companies) with effect from October 01, 2017 and will supersede the text of earlier Secretarial Standards. The Institute of Company Secretaries of India has subsequently announced that the Secretarial Standards on Meetings of the Board of Directors (SS-1) and General Meetings (SS-2) have been revised and the revised Secretarial Standards have received approval from the Central Government which shall be applicable for compliance by Companies from October 1, 2017
Companies Act to be amended again
3. The Companies (Amendment) Bill, 2017 (“Amendment Bill, 2017”) introduced in the Lower House of the Parliament received its assent on July 27, 2017. The Amendment Bill, 2017 seeks to make the following amendments in the Companies Act, 2013 (“Existing Act”):
Ø Officers in whole time employment of a company at one level below the board of directors are proposed to be included in the definition of key managerial personnel;
Ø The process and timelines involved in the private placement of securities are proposed to be amended by substitution of Section 42 of the Existing Act with a new section;
Ø Section 90 of the Existing Act is proposed to be substituted by a new section to introduce the concept of significant beneficial owner, to mean an individual, holding beneficial interest not less than 25% in shares of a company, whether directly or indirectly;
Ø The annual general meeting are proposed to be allowed to be held at any place in India if the consent of members has been obtained;
Ø Extraordinary general meetings of a wholly owned subsidiaries are proposed to be allowed to be held at a place outside India as well;
Ø The requirement of ratification of auditors at every annual general meeting of a company is proposed to be done away with;
Ø Section 185 of the Existing Act relating to loan to directors is proposed to be substituted by a new section to provide the conditions of provision of loan to persons in which the directors are interested;
Ø Provisions relating to forward dealing and insider trading of securities are proposed to be omitted; and
Ø The requirement of obtaining the Central Government approval for payment of managerial remuneration by a company in terms of Section 197 of the Existing Act is proposed to be dispensed with.
Registered office - changes introduced in case of relocation from one state to another
4. The Ministry of Corporate Affairs, on July 27, 2017 notified the Companies (Incorporation) Second Amendment Rules, 2017 to prescribe certain changes in the process of shifting of registered office:
i. within the same state; and
ii. from one state to another.
Sunday, 9 July 2017
It is not unheard of that a case when instituted in India seeking recovery of money may take several years before the party suing for recovery is actually able to receive the money claimed. Such scenario inevitably deters several companies from approaching the court, thus leading to settlements at far lesser amounts for which the company would have otherwise pursued.
Owing to growing concern for cost effective and faster resolution of commercial disputes, the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (“Act”) was introduced.
Post promulgation of the Act, the trade and commerce sector of the country has become very hopeful. This is because the Act has now put into place much needed processes to ensure that cases are decided in a time bound manner. The procedure for conducting a suit filed before a civil court is governed by the Code of Civil Procedure, 1908 (‘CPC’). To ensure that in commercial disputes where time is of essence, be it either for recovery of money basis a contract or for that matter intellectual property right cases for infringement of trademarks/copyright/patents, the CPC has been suitably amended to incorporate provisions which are likely to make delay and latches a thing of the past.
One of the crucial amendments which have been brought into the CPC by the Act is the insertion of Order 13A for summary judgment. Order 13A of the amended CPC provides that disputes which are of commercial nature and as such recognized as commercial dispute under the Act, shall be disposed off by the commercial court established under the Act without a full-fledged trial. The provision entitles the plaintiff or the defendant in a suit, to show as to why the claim of the defense as the case may be, is not likely to succeed. Upon filing an application under this Order, the plaintiff shall have to establish that there are no triable issues and that the Defendant has no real prospect in successfully defending the claim. To such an application, the defendant then shall be afforded an opportunity to show to the court that there are triable issues which are required to be inquired into and for which evidence is necessary. Upon hearing the arguments of both the parties, if the court is of the opinion that the defendant is not likely to succeed in defending the claim of the plaintiff, the court shall pass a judgment in favour of the Plaintiff.
While Order 13 A introduces a new perspective for deciding commercial disputes, however, provisions such as Order 13 A existed much prior, in the CPC in the form of Order 37. A suit filed under Order 37 of CPC provides that if a suit for recovery is filed on the basis of admitted debt, the same shall be tried summarily. Similarly, in a suit under Order 37 of CPC, the defendant is given an opportunity to plead existence of triable issues and plead the leave to defend the suit. The only difference between Order 13A and Order 37 is such that an Order 37 suit is applicable only to debts which are admitted, while on the other hand Order 13A can be invoked and is available to all kinds of suit, subject to the fact that the dispute should be a commercial dispute recognized by the Act.
Provisions like Order 13 A is likely to be a game changer in suits filed for infringement of intellectual property rights. This is because, in a suit for enforcement of intellectual property rights, the plaintiff who usually claims to be the proprietor or owner of the intellectual property rights is more concerned with enforcement of its rights and restrain upon availability of spurious/counterfeit or infringing product/services. The newly inserted provision is likely to save the intellectual property rights owner from going through the entire ordeal of the trial and secure protection of its rights without delay.
Recently, the Delhi High Court in the case of ‘Ahuja Radios vs. A Karim bearing CS(COMM) 35/2017” passed a summary judgment upon an application filed in a suit alleging infringement of trademark. It is however interesting to note that in the said case, the plaintiff did not press for damages. A necessary understanding for releasing the claim for damages would be that in the event the plaintiff would have pleaded for damages, then it would have had to lead evidence to show the extent of loss which it suffered, thus negating the entire reasoning behind filing of such an application. While the judgment is worth appreciating and has been analyzed by many, the said cardinal aspect of release of damages was left out. Therefore, in a suit for infringement of intellectual property rights, claim for damages may have to be released when an application under Order 13A of CPC is filed, unless of-course the plaintiff has documentary evidence to prima facie establish the quantum of damages.
(As per MCA Notification dated 13-06-2017)
POSITION BEFORE NOTIFICATION
POSITION AFTER NOTIFICATION
Chapter I Section 2 (40)
Earlier, only one person companies, small companies and dormant companies were exempted from including cash flow statement in their financial statements.
In addition to other classes of companies exempted under the Act, the notification exempts the private companies (if such private company is a start-up) from including the cash flow statements in its financial statements.
For the purposes of this document, start-up companies shall refer to the companies incorporated under the Companies Act, 2013 (“Act”) and recognized as a start up as per the notification issued by DIPP.
Section 73 (2) (a) to (e)
Vide notification dated June 05, 2015, private companies accepting monies from its members not exceeding 100% of aggregate of paid up share capital and free reserves and filing the details of monies so received with the Registrar of Companies (“ROC”), were exempted from complying with the conditions listed in Section 73 (2) (a) to (e), listed below:
(a) Issue of circular in the prescribed format;
(b) Filing of circular in (a) above with the ROC;
(c) Deposit of not less than 15% of the amount of deposits in a scheduled bank account;
(d) Provision of deposit insurance;
(e) Certification that the company has not committed any default in repayment of deposits;
(f) Provision of security for due repayment of deposits and interest thereon.
The current notification substitutes the exemption provision in the notification dated June 05, 2015 with the current exemption provision which exempts the following classes of private companies from complying with the conditions listed in Section 73 (2) (a) to (e) of the Act, provided that such companies file the details of monies so accepted with the ROC-
(A) which accept monies from its members, not exceeding 100% percent of aggregate of the paid up share capital, free reserves and securities premium account; or
(B) which is a start-up, for 5 years from the date of its incorporation; or
(C) which fulfils all of the following conditions, namely:-
(a) which is not an associate or a subsidiary company of any other company;
(b) if the borrowings of such a company from banks or financial institutions or body corporate is less than twice of its paid up share capital or fifty crore rupees, whichever is lower; and
(c) the company has not defaulted in the repayment of such borrowings subsisting at the time of accepting deposits under this section.
Chapter VII section 92 (1) (g)
Every company is required to prepare an annual return in the prescribed format containing inter alia the details of remuneration of directors and key managerial personnel (“KMP”).
By means of this notification, private companies which are small companies are required to disclose only the aggregate amount of remuneration drawn by directors instead of the details of remuneration of directors and KMP, in its annual return.
Chapter VII section 92 (1)
The annual return of a one person company and a small company are required to be signed by the company secretary or where there is no company secretary, by the director of such companies.
Proviso (1) to section 92(1) of the Act has been substituted to the following effect:
In addition to one person company and small company, a private company which is a start-up would also be required to get its annual return signed by the company secretary or where there is no company secretary, by the director of such company.
Section 143 (3) (i)
Section 143(3)(i) requires the auditor to comment upon the presence, adequacy and effectiveness of the internal financial controls system in the company, in his report.
The provision contained in section 143(3)(i) will not apply to the following classes of private companies:
A. one person or a small company; or
B. which has turnover of less than rupees 50 crores as per latest audited financial statement or which has aggregate borrowings, from banks or financial institutions or any body corporate, at any point of time during the financial year less than rupees 25 crores.
Section 173 (5)
One person companies, small companies and dormant companies are deemed to have complied with the provisions of section 173 of the Act, if it has held at least one meeting of the board of directors in each half of the calendar year and the gap between the two meetings is not less than 90 days.
Section 173(5) of the Act has been substituted to include a private company (if such private company is a start-up) within its scope. Accordingly, a start up private company will be deemed to have complied with the provisions of section 173 of the Act, if it has held at least one meeting of the board of directors in each half of the calendar year and the gap between the two meetings is not less than 90 days.
Section 174 (3)
Earlier, as per section 174(3) of the Act, only the uninterested directors present at the meeting, were counted towards the quorum of the meeting.
Section 174(3) of the Act will apply to the private companies with the exception that the interested director would also be counted towards quorum in such meeting after disclosure of his interest pursuant to section 184 of the Act.
The exceptions, modifications and adaptations provided in the above table will be applicable to private companies which have not committed a default in filing its financial statements or the annual return with the ROC.