Tuesday, 16 May 2017

Ex-LLS, Shabnam joins Alpha as IP partner


We are delighted to announce that Shabnam Khan has joined Alpha Partners as an Associate Partner. She is a partner and head of intellectual property practice of the firm.

Shabnam Khan has obtained her law degree from Delhi University and is enrolled as a member of the Bar Council of Punjab and Haryana. With over 13 years of work experience as an Intellectual Property lawyer, she is the Partner and Head of the intellectual property practice of the firm. Prior to joining Alpha, Shabnam was a partner with Lall, Lahiri and Salhotra, a leading Intellectual Property firm in India.

Shabnam’s practice focuses on legal and commercial aspects of trademarks, copyrights, patents and other Intellectual Property rights services including advise on pre litigation Intellectual Property matters. Shabnam advises clients in sectors such as pharmaceutical, healthcare, hospitality, real estate, ecommerce and technology, FMCG, oil and gas, education, and is also advising government departments/organizations in developing, protecting and strengthening their brands in India. She also advises clients regarding the protection of their IP in other jurisdictions through associate attorneys’. Shabnam has also advised clients on data privacy and data protection issues and she has handled trademark portfolios of a number of fortune 500 companies assisting and advising them regularly with their brand watches, clearance and protection in India.

Shabnam has attended several international conferences and has authored a number of articles in various leading legal and IP publications. She has been featured in the Superlawyer portal and also advises start-ups and various NGOs, on a pro bono basis.

She can be contacted at shabnam@alpha-partners.org


Sunday, 7 May 2017

Reported Comments

RERA Updates May 2017

RERA Updates May, 2017

On May 1, 2017, the state of Haryana has notified the draft Haryana Real Estate (Regulation and Development) Rules, 2017.

On May 1, 2017, the state of Bihar has notified Bihar Real Estate (Regulation and Development) Rules, 2017

On May 2, 2017, the state of Kerela has notified Kerela Real Estate (Regulation and Development) Act, 2015.


On May 2, 2017, the state of Rajasthan has notified Rajasthan Real Estate (Regulation and Development) Rules, 2017.

RERA Updates April 2017

On April 17, 2017, following regulations have been notified:

State/UT
Relevant Rules/notifications
Gujarat 

Odisha


On April 20, 2017, rest of all of the provisions of the Act, whichever not notified in April, 2016, have now been notified to come into effect from May 1, 2017.

On April 20, 2017, state of Maharashtra has notified the Maharashtra Real Estate (Regulation and Development) (Recovery of Interest, Penalty, Compensation, Fine payable, Forms of Complaints and Appeal, etc.) Rules, 2017 and Maharashtra Real Estate (Regulation and Development)(Registration of real estate projects, Registration of real estate agents, rates of interest and disclosures on website) Rules, 2017, Maharashtra Real Estate Appellate Tribunal Officers and Employees (Appointment and Service Conditions) Rules 2017, Maharashtra Real Estate Regulatory Authority (Form of Annual Statement of Accounts and Annual Report) Rules, 2017.


On April 28, 2017, the state of Uttarakhand has notified Uttarakhand Real Estate (Regulation and Development) (General) Rules, 2017.

RERA Updates


Real Estate (Regulation and Development) Act, 2016 (the ‘Act’ or ‘RERA’) is an important and much talked about piece of legislation for the real estate sector of India. RERA proposes to establish a Real Estate Regulatory Authority for regulation and promotion of the real estate sector and to ensure sale of plot, apartment or building or sale of real estate project, in an efficient and transparent manner. Further, the Act proposes to protect the interest of consumers in the real estate sector and to establish an adjudicating mechanism for speedy dispute redressal.

The Act partially came into force on April 4, 2016 and since then various states have formulated their respective rules under the Act for implementation of the Act in the respective states.


Under RERA Updates, we will provide a snapshot of what latest is happening. This note will provide a date wise implementation of the Rules by various states, following by updates commencing from April, 2017. 

Date
State/UT
Relevant Rules/notifications
4 April, 2016
_
October 22/26, 2016
Madhya Pradesh
October 27, 2016
Uttar Pradesh
October 29, 2016
Gujarat
October 29, 2016
Gujarat
October 31, 2016
Lakshadweep
October 31, 2016
Daman & Diu
October 31, 2016
Dadra and Nagar Haveli
October 31, 2016
Chandigarh
October 31, 2016
Andaman and Nicobar Islands
November 4, 2016
Karnataka
21st November, 2016
National Capital Territory of Delhi
Until the establishment of Regulatory Authority in National Capital Territory of Delhi, the Ministry of Urban Development hereby designates Vice Chairman, Delhi Development Authority as the Regulatory Authority
November 24, 2016
National Capital Territory of Delhi
National Capital Territory of Delhi Real Estate (Regulation and Development) (Agreement for Sale) Rules, 2016
National Capital Territory of Delhi Real Estate (Regulation and Development) (Agreement to Sell) Rules, 2016

Thursday, 4 May 2017

Firm News: April 2017

Ex CAM Kunal joins Alpha as Associate Partner

We are delighted to announce that Kunal Arora has joined Alpha Partners as an Associate Partner. He will be part of the corporate team and shall head the real estate practice of Alpha. 

Kunal has obtained his law degree from Symbiosis Law School, Pune and is enrolled as a member of the Bar Council of Delhi. Prior to joining Alpha Partners, Kunal was working with the Corporate M&A and Real Estate team at Cyril Amarchand Mangaldas.

Kunal is a corporate and commercial lawyer who focuses on advising clients in relation to M&A, private equity investments, joint ventures and real estate transactions. He has advised clients on all aspects relating to these transactions including formulating legally viable structures, carrying out due diligence, drafting and negotiating transaction documents and assistance in closing related compliances.

Kunal has also advised leading investors and financial institutions on the real estate aspects in relation to their transactions with developers in India, including undertaking title and approval diligence of various residential and commercial projects and rendering advice on the real estate aspects of the transaction documents. Additionally, Kunal has advised clients engaged in various sectors in relation to their real estate transactions involving acquisition of rights (both leasehold and ownership) over properties across various parts of India.

Kunal also has significant experience in advising clients on company law, corporate compliance, entry strategies and setting up of business, employment laws and exchange control regulations in India. Kunal has advised clients engaged in various sectors including media, healthcare, financial services, real estate, manufacturing, ecommerce (startups) and technology.

Kunal has also co-authored articles titled “Conflicting views on the buyback of shares continue to baffle investors” and “Foreign companies need to put at least one share of their Indian subsidiaries in other hands” published in the India Business Law Journal.

He can be contacted at kunal@alpha-partners.org

Monday, 10 April 2017

Reported comments

The agreement states that the development authority..... reported in Hindustan Times on March 22, 2017

a promoter cannot terminate an agreement on..... reported in Hindustan Times on March 22, 2017

If the promoter fails to deliver or do something,.....  reported in Hindustan Times on March 22, 2017

In a situation where the promoter of the developer company is sent to jail, .... reported on April 4, 2017 on Moneycontrol.com

And it is back…..

For a person who loves adventure and challenges such as rash driving and walking into dark alleys, it is the best time to be in the corporate law, and especially in the Companies Act, practice, since our Companies Act, 2013 presents new challenges and things to ponder on, on almost a weekly basis.
Recently, I stumbled upon a clarification from MCA which states that Section 392(2) applies only to foreign companies which have issued prospectus and IDRs pursuant to the provisions of Chapter XXII, viz. the chapter under which Section 392 falls and which governs foreign companies having a place of business in India.
A little background. Companies and other body corporates which are foreign i.e. incorporated outside India, which need to have a place of business in India (uch as branch offices, liaison offices, project offices, but not a subsidiary) have to comply with and register under Chapter XXII. I covered the issues related to Chapter XXII in my earlier post.  
Once you are done with India, you may wish to close that place of business formally. For this closure, Section 392(2) provides that provisions of winding up of companies (Chapter XX) which are otherwise applicable to Indian companies will mutatis mutandis apply for closure of the place of business of a foreign company India, as if it were a company incorporated in India. The verbiage cannot be simpler.
There are other Sections (ex. 384) in the same Chapter where the Act makes sections applicable to Indian companies apply (with or without modification) to the foreign companies having a place of business in India. Further, it appears that in order to curb foreign companies who raise funds from Indian public (crowd funding, get-rich-quick schemes etc), an attempt (though not completely accurate) has been made to provide for elaborate provisions so that such companies come within the ambit of the Act and the capital markets regulators, whether or not they have an actual physical place of business and have to formally issue a prospectus and comply with provisions relevant to the type of funding or investment schemes that they run.
Although Section 392(2) presents a huge inconvenience as one will have to take recourse of tribunal etc. for winding up a simple branch office, it is a section of a statute and one has to live with it and is capable of being amended only by the Parliament. To further clarify the fun, Section 391 is repeated below:
Application of Sections 34 to 36 and Chapter XX
391.(1) The provisions of sections 34 to 36 (both inclusive) shall apply to—
(i) the issue of a prospectus by a company incorporated outside India under section 389 as they apply to prospectus issued by an Indian company;
(ii) the issue of Indian Depository Receipts by a foreign company.
(2) The provisions of Chapter XX shall apply mutatis mutandis for closure of the place of business of a foreign company in India as if it were a company incorporated in India.
Turns out, the inconvenience of approaching the tribunal took over the need to go to the Parliament and in a jiffy, MCA clarified that Subsection (2) applies only to those companies who have issued prospectus and/or IDR’s. Essentially, the clarification attempts to state that subsection (2) applies to only those companies which are covered under subsection (1), an intention which by no stretch of imagination or statutory interpretation rules can be possible, unless the section itself is amended for which one has to knock the doors of the Parliament.
Also, it basically means that one has to go to the tribunal for winding up only for those companies which are into vicarious fund raising, fly by night operations, crowd funding etc., which have actually registered under Chapter XXII as a place of business and which, because of applicability of all the provisions related to issue of prospectus etc., have actually complied with them, and now they wish to wind up.
Too ambitious I say.
Another issue is that if at all such an interpretation is possible, how does one close a place of business of a foreign company who has not issued a prospectus or issued IDR’s in India? Does this clarification mean that one doesn’t have to get such place of business closed or de-registered under the Companies Act, 2013 and only has to get things done at RBI and income tax? What happens to the requirement of RBI to have a report from Registrar of Companies submitted that compliances related to winding up are complete?

Criminal Prosecution: The New Modus of Money Recovery

Sumit Roy

“It takes a lifetime to build a good reputation, but you can lose it in a minute” said Will Rogers.
Filing of criminal cases for alleged non-payment of money under a commercial contract (ex. vendor agreements, supplier agreements or service contracts) seems to have become a trend today. The trend is also attributable to the fact that decision in a civil case, be it a case before the Court or a claim before the arbitral tribunal requires substantial time and cost for adjudication. Moreover, getting a decree or award does not end the story and the claimant, even if it eventually wins the claim, may as well get entangled in the whirlpool of appeals and review before the higher courts, thus making realization of money inconvenient.
Under such circumstances, lodging what is known as First Information Report or FIR with police for alleged cheating, criminal intention, fraud etc. seems more luring. The stigma of having a criminal case against you and the fear of getting arrested surpasses monetary inconvenience, thus making criminal cases one of the most preferred mode for recovery of monies.
In a cash crunched startup community, cases of companies defaulting on payments to third party vendors, employees and sometimes lessors have substantially increased. As a consequence thereto, the new modus of recovering money seems to be filing of criminal cases. Two cases which have recently come into light where the promoters of two prominent start-up companies were arrested on charges of fraud and non-payment of monies owed to the respective complainants were Ringing Bells (the 251 rupees mobile company) and Stayzilla. 
In both cases, it appears from the media articles that the criminal complaints were filed for money due for services and in other case, for non-supply of products. While it is true that both of the scenarios mentioned above fall within the ambit of a civil case, nonetheless, if allegations of cheating are averred, it will pull it within the purview of criminal justice system.  Mere allegations of cheating or fraud are not sufficient, the averments along with documents backing such allegations should be able to establish that the intent to cheat was present from the inception of the commercial transaction. If the necessary constituent of the offence is not shown in the FIR, it shall not stand before the court for very long.
If in the eventuality a FIR is lodged against the company and its promoters or employees, it is necessary that the FIR is approached with caution. The company may feel that the entire case is based upon false and frivolous facts or certain facts may have been averred to make out a criminal case, even though the same may not have transpired, however, a decision taken in haste will most likely than not be detrimental to the defense which the company is likely to put forward. Thus, it is necessary to strategize the legal options available and avail remedies which are best suited having regard to the facts and circumstances.
In many cases it has been seen that in zest to finish the criminal proceedings initiated by the FIR, propositions of settling the dispute amicably is explored. While amicable resolution of the dispute may be win-win for all, however, once the criminal justice is set in motion, the proposition of settlement should be handled with utmost caution. It should be ascertained as to when the talks for settlement should be invoked or responded to. Anticipating that paying the money in the beginning of the matter shall be a very good defense and thereafter, making payment of the money without any proper settlement arrangement may twist the case completely in the opposite direction, taking out of the picture certain defenses which otherwise may have been available.
Additionally, at all times one should cooperate with the investigative agency. It is necessary and one should not lose sight of the fact that the Court inevitably looks into the bona fides of the one seeking reliefs. Trying to evade the Police only leads to negative inference by the Court.
As mentioned, the legal options should be well assessed. The FIR may or may not have non-bailable offences. The offences under the Indian Penal Code, 1860 may be categorized as being bailable or non-bailable. A bailable offence is one where bail is granted as a matter of right, while in non-bailable offence grating of bail is at the discretion of the court. If the FIR only has bailable offences, then the first step is to surrender before the Court and to get bail. However, if the FIR discloses non-bailable offences, it incumbent that first an anticipatory bail is procured. An anticipatory bail is granted prior to surrendering before the court and ensures that the accused is released on bail when arrested subject such terms which the court deems fit and proper. There are instances when an accused may not be informed with the contents of the FIR and the Police instead of arresting the accused issues a notice to appear. Under such circumstances, before hurriedly appearing before the Police as directed, the anticipatory bail should be procured.    
Once bail or anticipatory bail as the case may be has been secured, one may approach the High Court seeking quashing of the FIR. It is however very important that the pros and cons of approaching the High Court is properly analyzed. If the FIR discloses no prima facie case, the High Court shall end the entire criminal proceedings and quash the FIR.
While initiating criminal prosecution may have become the new modus of money recovery, however, merely filing of an FIR does not establish the allegations leveled therein. Therefore, instead of considering the purported societal stigma associated with the criminal prosecution and giving into the demands, the legal options should be well explored and the criminal proceedings should be approached with substantive strategy. 

Sunday, 9 April 2017

Firm News

April last year, Alpha combined its practice with Seth Dua & Associates. As of this April, we have reverted to our original firm and brand ‘Alpha Partners’. The departure has been for certain strategic reasons, both as an organisation and the manner in which our practice is to be conducted. 

Alpha Partners was awarded the best start up law firm of the year in 2015, in the third year of its inception by IDEX Legal and was ranked as a recommended law firm by Legal 500 in 2016 for its corporate and dispute resolution practices. Alpha, with its vibrant and young, yet experienced team, promises to conduct legal practice as a ‘service’ to clients. Alpha follows the principals of project management in legal practice, having distinct practice verticals with focus on a specific area of practice and/or sector. This enables Alpha to provide focused and specialized services at reasonable, predictable and in most cases, fixed costs.

PRACTICE AREAS

·         Corporate transactional practice
·         Dispute Resolution practice
·         Compliance and Regulatory

SECTORS

·         Real estate and infrastructure
·         Entertainment
·         Health care and pharmaceuticals
·         E-commerce, new age companies and technology
·         Franchise and trading

Please feel free to write to us for further details. Following are our contact details:

Office: C-48, Sector 20, NOIDA

Phone: 91-120-4562203 , 91-120-4374911

Emailsinfo@alpha-partners.org