New Delhi, September 7, 2022: DSK Legal has advised Equirus Capital Private Limited and Motilal Oswal Investment Advisors Limited with respect to the initial public offering of 17,242,368 equity shares of Dreamfolks Services Limited.
The IPO was made through an offer for sale by Liberatha Peter Kallat, Mukesh Yadav and Dinesh Nagpal, who are Promoters of the Company, the Law Firm has said.
The Red Herring Prospectus was filed with the RoC on August 17, 2022; the prospectus was filed on August 30, 2022 and the Company was listed on September 06, 2022 on BSE and NSE.
DSK Legal assisted in inter alia (i) conducting due diligence; (ii) reviewing the Draft Red Herring Prospectus, Red Herring Prospectus and the final Prospectus for filing with SEBI, Stock exchanges and assistance in finalisation and filing of the same with Registrar of Companies; (iii) drafting responses to queries received from SEBI, Stock Exchanges, Depositories until the completion of all activities relating to the public offering; (iv) drafting of the consent letters and certificates taken from all intermediaries; (v) drafting and review of all agreements relating to the Offer (including Offer Agreement, Syndicate Agreement, Share Escrow Agreement, Cash Escrow and Sponsor Bank Agreement, Underwriting Agreement and agreement with Advertising agency, Registrar etc.); (vi) extending legal opinion for each stage of the public offering and (vii) preparation of deal bible.
The team representing DSK Legal comprised of Gaurav Mistry (Partner), Avinash Poojari (Associate Partner), Akanksha Dubey (Principal Associate), Rishika Raghuwanshi (Associate), Jigar Sampat (Associate) and Maniya Goyal (Associate). Ajay Shaw acted as the lead engagement partner for the Transaction, the Firm said in a press statement.
DSK Legal acted as Domestic legal counsel to the BRLMs, Bharucha and Partners acted as a legal counsel to the Company and Duane Morris & Selvam LLP acted as International Legal Counsel for the BRLMs, it said.
By LE Desk
New Delhi, March 21: The Future Group has moved the Division Bench of the Delhi High Court against the order passed by a single-member Bench, which directed to stay its Rs 24,713-crore deal with Reliance Industries to sell the firm’s retail and wholesale business.
The Kishore Biyani-led group firm, Future Retail (FRL), has now filed an appeal before the higher Bench of the same HC against the orders passed by a single-member Bench of Justice J R Midha, Future Retail said in a regulatory filing.
“The company has filed an appeal before the High Court of Delhi against the impugned order dated March 18, 2021 passed by single judge…,” said Future Retail.
Earlier, in a statement on Friday, Future Retail had said the order of the single-member Bench would have no impact on the ongoing proceedings before the National Company Law Tribunal (NCLT), which is presently going through the scheme of arrangement between the Future Group and Reliance Retail.
The NCLT has reserved its order over the scheme of arrangement that entails the consolidation of Future Group’s retail and wholesale business and transferring it to Reliance in a Rs 24,713-crore deal that was announced in August last year.
The Future-Reliance deal, which is contested by global e-commerce major Amazon, has already received clearance from the Competition Commission of India (CCI), Sebi and bourses, and the scheme of arrangement is now awaiting the nod from the NCLT and shareholders. Passing a 134-page long judgement, Justice Midha had on Thursday directed Kishore Biyani-led FRL not to take further action on the deal with Reliance and held that the group willfully violated the EA’s order.
The HC had rejected all the objections raised by Future Group and imposed a cost of Rs 20 lakh on it as well as its directors.
It had directed them to deposit the amount in Prime Minister’s Relief Fund within two weeks for being used for providing Covid-19 vaccination to senior citizens of Below Poverty Line (BPL) category of Delhi.
The HC’s judgement came on Amazon’s plea seeking direction to order enforcement of the Award by Singapore’s EA on October 25, 2020, restraining FRL from going ahead with its Rs 24,713-crore deal with Reliance Retail.
However, Future Retail had said: “We are advised that this order does not come in the way of the continuance of the ongoing NCLT proceedings, being inconsistent with the order dated February 22, 2021, of the Supreme Court”.
It is to be pointed out that the portions of the operative part of this detailed order, already covered by the ad-interim order dated February 2, 2021, have been stayed by the Division Bench of Delhi HC in an appeal filed by Future Retail.
“Amazon has filed an appeal in the Supreme Court against the order passed by the Division Bench. The Supreme Court, in its order in Amazon’s appeal, has not vacated the stay granted by the Division Bench (which stay is still in operation).”
“The Supreme Court has directed that, in the meantime, the NCLT proceedings will be allowed to go on but will not culminate in any final order of sanction of scheme,” Future Retail had said, as reported by the Business Standard.
On August 29, 2020, the Future Group had announced that its retail and wholesale business would be sold to Reliance Retail, owned by oil-to-chemical conglomerate RIL in a Rs 24,713-crore deal.
In October 2020, Amazon dragged Future Group to arbitration at the Singapore International Arbitration Centre (SIAC), arguing that Future violated the contract by entering into the deal with rival Reliance.
Amazon and Future have been locked in a bitter legal tussle after the US e-commerce giant dragged Future Group to arbitration at SIAC, arguing that the latter had violated their contract by entering into the deal with rival Reliance.
By LE Desk
New Delhi, March 19: The Supreme Court on Thursday accepted the standard operating procedure (SOP) statement prepared by SBI Funds Management for disposal of assets to unit holders in six Franklin Templeton debt schemes frozen on April 23, 2020.
The SOP was prepared by FT Mutual Fund and market regulator SEBI.
The six schemes have already distributed Rs 9,122 crore to investors and have accrued another Rs 1,370 crore in cash, as on March 15. The assets in the schemes were worth around Rs 26,000 crore on the day they were frozen, the Business Standard reported.
SBI Funds Management (SBI MF) told the court that disposal to unit holders would be done by a team headed by an official not below the rank of Vice President in the company. FT Asset Management would also provide two mid-level officials with a clean track record to assist it in its work.
As part of monetisation plan for the frozen schemes, the securities and money would be transferred to specially designated accounts for the disposal and FT would have to provide SBI MF with all the relevant documentation. It would also have to bear the expenses of the winding-up.
The SOP also says that SBI MF will not bid for assets to avoid conflict of interest. Different methods would be adopted for disposal of liquid and rest of the assets. If even after this process, some assets remain to be liquidated, they would be returned to FT for necessary action.
In case of any defaults in the paper held by the schemes, it would have to initiate proceedings against the defaulting issuer. Any surplus amount would have to be deployed in liquid schemes and whenever additional amount gets collected, it would be distributed to the unit holders.
Interestingly, the current NAV of closed FT schemes is higher than the NAV on the of the winding-up.
By LE Desk
New Delhi, March 18: In a significant win for Amazon.com Inc., the Delhi High Court has upheld the Emergency Arbitrator’s award the U.S. e-commerce giant had won against Future Retail Ltd.
A single judge bench of Justice JR Midha has imposed a Rs 20 lakh penalty on Future Group entities. The court has issued notice to Kishore Biyani and others and have asked them to be present in the court for the next date of hearing on April 20, BloombergQuint reported.
In October last year, the Emergency Arbitrator constituted under the Singapore International Arbitration Centre Rules, had passed an interim award in favour of Amazon. The Emergency Arbitrator had directed Future Retail to put on hold its transaction with Reliance Retail.
Subsequently, Amazon.com NV Investment Holdings LLC approached the Delhi High Court and sought the recognition and enforcement of the emergency arbitrator’s order under section 17(2) of the Arbitration and Conciliation Act, 1996.
The provision allows a party to seek enforcement of an interim order passed by an arbitral tribunal in the same manner as it would for a court order.
The high court bench of Justice Midha heard the arguments and reserved its judgment last month. In the interim, it passed a status-quo order which put on hold the transaction between Reliance Retail Ltd. and Future Group.
This interim order was appealed in front of a division bench of the Delhi High Court headed by Chief Justice DN Patel which vacated the interim order of status quo.
The appeal against that order is currently pending in the Supreme Court. Last month, the apex court directed the National Company Law Tribunal to continue hearing the case but not give a final nod till further orders. Future Group had sought NCLT’s nod to hold shareholders’ meeting and seek their approval for consolidation of its entities—the first step in its ultimate sale to Reliance Retail.
By LE Desk
Chennai, March 18: In a judgment that will benefit small and medium businesses, the Madras High Court has allowed transition of input credit arising from tax deducted at source under the value added tax into the GST regime.
Taxpayers can now set off such unutilised credit against their output tax liability.
More than 23 petitioners, including those engaged in the construction sector, had challenged the Tamil Nadu goods and services tax department’s move to deny transition of VAT TDS credit into the new indirect tax regime.
A bench comprising Justice Anita Sumanth observed that GST allows a taxpayer to transition credit obtained under the VAT regime. As any amount of tax collected or deducted at source is mentioned in the returns filed under the VAT law, all such amounts will also be included for transition purpose into the new regime, the court has observed, BloombergQuint reported.
The decision will be useful especially for taxpayers engaged in providing works contract services, Nand Kishore, partner at DSK Legal, said. The benefit, however, can be availed by only those taxpayers who filed the electronic form TRAN-1 within the prescribed time, he said.
With the introduction of GST, the government allowed taxpayers to carry forward unutilised tax credits under the erstwhile indirect tax regime. Businesses were allowed to carry forward accumulated input tax credits from the pre-GST era by filing form TRAN-1—an electronic form capturing details of the dealer and invoice, amount of unutilised tax credit, etc.
While the government intended an easy transition, disputes arose relating to credits arising from the amount deducted as TDS under the VAT regime, especially in Tamil Nadu.
For works contract services, the state’s VAT law required a person availing works contract service to deduct tax before making payments. Dealers would get a TDS certificate for this and could adjust their final tax liability against it at the end of the financial year. In case, TDS exceeded the total tax liability, a dealer was entitled to refund.
Using this base, the tax department contended that TDS is an “approximate amount”. It assumes the character of a “tax” only after the final adjustment. However, the central and state GST laws only allow transition of “tax” and not an approximate amount. As such, there was no entitlement for transition of such credit, the department argued.
The taxpayers contested this saying TDS is nothing but a tax and hence any credit arising from it can be transitioned, and that deduction of tax is only a method by the tax department to plug revenue leakage. The taxpayers also contended that a person availing services also deducts tax at source due to the requirement under the VAT law, failing which they are deemed to be an “assessee in default.”
Reading into the various statutory requirements, the court noted that it cannot go by the mere description used in the VAT law. A person availing works contract services deducts tax under the authority of law. As such, TDS assumes the character of tax and hence a dealer will be entitled to transition the credit.
June 16: When the novel coronavirus closed down courthouses and law firms, technology allowed attorneys, their clients and judges to move litigation forward without jeopardising public health.
Some of those emergency fixes could stick around even after life returns to normal. Legal experts say embracing remote technology has boosted efficiency, transparency and access to the courts.
Here are some of the top tech fixes that attorneys hope will stick around after the pandemic, according to law360.com:
(i) Video Hearings
When courthouses shuttered in March, some judges, like the Northern District of California’s Judge James Donato, didn’t want to stop oral arguments. He preferred to hash out questions with attorneys, rather than issuing rulings based solely on the papers.
So he and many of his colleagues took to Zoom, using the webinar format with attorneys presenting as “video panelists”, and audience members watching as they would from a courtroom gallery. At first, Zoom access information was only available via PACER, but in late May, the district made video hearing logins publicly available on its website.
Now, Donato would like to offer video hearings even once the San Francisco courthouse reopens.
“I think this is a real breakthrough moment in access to the courts — public access, client access. It’s a huge revolution for the better, in getting more people to see what we do,” he said.
Video hearings open up the courtroom to people who can’t make it to San Francisco, from young attorneys who want to watch oral arguments in the litigation they’re working on but can’t take the time to commute, to corporate clients who “are writing massive checks, and never watch their lawyers,” Donato said.
A former BigLaw partner himself, Donato thinks the webinars could improve lawyers’ work-life balance. He remembers flying from his home in San Francisco to attend hearings in Boston that rarely took longer than an hour. While the arguments were vital to the case, the cross-country trip took a toll.
“I would fly out there constantly, and it would be a two- or three-day trip for 45 minutes in court. That disrupts your whole week, disrupts your office, disrupts your home,” he said. “I hope the two-day trip for a one-hour hearing is a thing of the past, and we just do it on webinar. I think that’s going to have tremendous value, making being a lawyer less burdensome on families, much more cost efficient, maybe even greener.”
Other courts systems, like New York state court, always required attorneys to attend in person, even for status conferences or calendar check-ins, according to John Magliery, a partner at Davis Wright Tremaine LLP.
He wouldn’t necessarily want to argue motions remotely once courthouses reopen, he said, but New York adopting that technology for other in-court appearances could be a game-changer.
“We’re seeing scheduled Zoom conferences where quick check-ins on things like discovery compliance are being achieved much more expeditiously and at much less expense,” he said.
(ii) Client Dashboards
Another way to boost transparency is through online dashboards, according to Tess Blair, founder of Morgan Lewis & Bockius LLP’s eData practice.
Dashboards have long allowed clients to look at which attorneys are working on a case and how much they’re billing, but they’re also functioning as a communication tool. Clients can log in and see what evidence and data attorneys have compiled, and how they are analysing it, Blair said.
“They can see all the key factual pieces of their case, and can run reports and do searches and run [an] analysis of the data,” she said. “That’s another way to interact with us, but also with our work.”
Blair said while lawyers have been especially careful during the pandemic to reach out to clients, it’s good to offer an option that allows clients to see what’s happening in real time, without having to make a phone call.
“That’s become really important in this remote working environment, to push information out to clients, to give them insight into their cases, into their data — not just what we’re billing, but what we’re seeing and the analysis that we’re doing,” she said.
Telecommuting has also sparked internal interest in dashboards among the attorneys at Ballard Spahr LLP, according to Jim Boyer, the firm’s director of matter management and efficiency.
Lawyers are using the technology internally now as a case management tool. The technology has existed at Ballard for about a year, he said, but working from home has driven more widespread adoption.
“The tools are infinitely customisable, and we can make quick adaptations to any practice group or legal team,” he said. “We really built a foundation here. But since the pandemic, people have started to really understand the technology and what it can do for them and how easy it is to use.”
(iii) Video Depositions
To keep litigation moving, attorneys have turned to remote depositions via video.
Magliery, a commercial litigator with 18 years of experience, was skeptical the format could work. So much of a deposition is about reading a witness’ body language and facial expressions, and being able to confront them with evidence by sliding a piece of paper across the table, he said.
“Depositions are cross-examinations,” he told Law360. “Sometimes you want to ask buildup questions, and then you want to confront the witness with something contradictory to what they’re saying.”
But the technology worked “remarkably well,” Magliery said. It allowed him to enter exhibits into evidence remotely, and pull up documents on screen to confront the witness, so he wouldn’t lose the element of surprise. He used his home computer’s monitor and his laptop, so he could have two screens — one to look at the document he was referencing and one to keep an eye on the witness’ reactions.
“The technology allowed us to upload the document instantly to both the witness and opposing counsel, so they could then see the entire document. And using screen-share technology, we could also show an excerpt of the document to the witness.”
Magliery wouldn’t want to use video technology for every deposition once the pandemic ebbs. He would ideally be there in person to take the testimony of an adverse party, for example. But he could see remote depositions continuing to work for third-party witnesses; people he wants to subpoena for factual information, not admissions.
“It saved a lot of client money in travel expenses and it saved a lot of time to be able to conduct these remotely,” he said. “I would think there could be circumstances in the future where I would be comfortable using some remote depositions in a case.”
Law firms, mindful that their clients’ purse strings are tightening amid the pandemic-fuelled recession, are now turning to technology for the busywork that can eat up a lot of billable hours.
That means the pandemic has forced litigators to consider how automation and machine learning can help write pleadings.
That technology has been around for a while, according to Blair. But in the past, it’s been relegated to contract work.
The firm has long used systems that, through machine learning, can recognise contract terms and conditions. Attorneys can ask the program to spit out an ideal contract.
But now, what was “a very hot trend on the transactional side of the practice” is being applied to court pleadings, Blair said. It’s especially helpful when defending a client that’s facing serial litigation with multiple complaints.
“The machine can read those complaints and can identify the differences between them, the anomalies, so that we can quickly generate responses,” she said.
That can save attorneys time and their clients money.
“We’re looking at ways to innovate, to semiautomate the process where we can, so lawyers can spend their time doing the high-value work, and the machines can do the rest, hopefully,” Blair said. “We’ve doubled down on that during COVID, because we know our clients are under tremendous economic pressure.”
New Delhi, June 17: The Delhi High Court Tuesday sought the Centre’s response on a plea against appointment of former Jammu and Kashmir High Court judge Justice B L Bhat as officiating chairperson of National Company Law Appellate Tribunal (NCLAT).
A bench of Chief Justice D N Patel and Justice Prateek Jalan issued notice to the ministries of Corporate Affairs, Finance, Law and Justice and the NCLAT seeking their stand on the petition by a lawyer who has claimed the appointment was in violation of the Companies Act, The Business Standard reported.
Advocate Fozia Rahman, in her plea, has sought setting aside of the March 12 notification of the Ministry of Corporate Affairs (MCA) appointing Justice Bhat as the officiating chairperson of NCLAT.
Rahman, represented by senior advocate Rajeev K Virmani and advocate M Qayam-ud-din, has claimed that the appointment was in violation of the company law and the provisions of the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Condition of Service of Members) Rules, 2020.
She has also sought setting aside of one of the rules which permits the Centre to appoint any member of the tribunal, irrespective of their seniority, as the acting or officiating chairperson of the tribunal when there is a vacancy.
The petition has contended that under the Companies Act, when the post of chairperson of a tribunal is vacant, the senior most member shall act as officiating chairperson till a suitable person is appointed.
The court listed the matter for further hearing on June 30.
New Delhi, June 15: E-commerce giants against whom a petition has been filed in the National Green Tribunal to stop them from allegedly using excessive plastic for packaging have either not submitted complete documents regarding the quantity of plastic consumption or have not responded to the communication of the Central Pollution Control Board (CPCB).
While Amazon has not submitted complete documents regarding their responsibility under the Plastic Waste Management Rules and confirmation of quantity of plastic consumption, Flipkart has not responded to CPCB’s email dated March 4, 2020 and no other correspondence has been received from the firm so far, the apex pollution monitoring body told the National Green Tribunal, as reported by The Financial Express.
The CPCB informed the tribunal that Amazon Retail India submitted the application for registration under Plastic Waste Management Rules, 2018 to it on December 5, 2019 having Extended Producer Responsibility of collection and channelisation of 0.5 TPA plastic waste.
“The application is under process, however, complete documents regarding pan-India coverage of Plastic Waste Management and confirmation of quantity of plastic consumption have not been submitted by firm so far,” CPCB said adding that Amazon is required to submit requisite documents regarding pan- India coverage of Plastic Waste Management and confirmation of the quantity of plastic consumption. It further told the tribunal that another firm Flipkart Pvt Ltd has not responded to CPCB’s email dated March 4, 2020 and no other correspondence has been received from the firm so far.
“However, vide letter dated December 6, 2019 Ms Instakart Services Pvt Ltd informed that Flipkart Pvt Ltd is their holding company registered in Singapore and Ms Instakart is engaged in the business of providing logistics and fulfilment services to group companies.
“Flipkart Pvt Ltd is required to submit application for registration directly to CPCB or provide requisite documents supporting its linkage with Instakart Services Pvt Ltd,” it said. The petition has contended excessive use of plastics in packaging have given rise to serious environmental challenges.
The CPCB had earlier told the NGT that the e-commerce giants need to fulfil their extended producer responsibility under the Plastic Waste Management Rules, 2016 and need to establish a system for collecting back the plastic waste generated due to the packaging of their products. It had informed the green panel that as per provisions 9(2) of the Plastic Waste Management Rules, 2016, “Primary responsibility for collection of used multi-layered plastic sachet or pouches or packaging is of Producers, Importers and Brand Owners who introduce the products in the market.
“Amazon Retail India Private Limited and Flipkart Private limited are involved in packaging and selling of other companies’ products and thus introducing plastic packaging in the market. They need to fulfil their extended producer responsibility under PWM Rules and should obtain registration as brand owner after submitting proper documents,” CPCB had said.
The submission came in response to a plea filed by a 16-year-old boy who has approached the tribunal to stop e-commerce giants Amazon and Flipkart from excessive plastic use in their packaging. Aditya Dubey, through his legal guardian, has pleaded the NGT to direct Amazon and Flipkart to stop excessive use of plastic in packaging the goods delivered by the firms.
“The e-commerce companies are covered under the Plastic Waste Management Rules, 2016. But due to a lack of monitoring and implementation, the respondents continue to use excessive amounts of plastic in wrapping and packaging their sold items,” said the plea, filed through advocate Divya Prakash Pande.
Dubey’s plea had contended that the companies deliver items in cardboard boxes, which are too large when compared to the size of the items being delivered. The plea has also said that though the home-delivery service of e-commerce companies have been very useful for consumers, they have given rise to serious environmental challenges due to excessive use of plastics in packaging.
Once goods are delivered, the plastic waste is thrown away in garbage and it ends up at landfill sites, leading to a burden on the earth and damaging the environment, it said. Dubey said the two companies have not made any arrangements for either taking back the plastic material or ensuring that it is recycled.
New Delhi, March 11, 2022: DSK Legal has advised Infifresh Foods Private Limited and its Founder Utham Swamygowda in relation to their Series C Round from the Existing Investors of Infifresh, i.e. Tiger Global,Prosus Ventures (Naspers), Accel Partners, Matrix Partners, Ankur Capital Fund, and Incubate Japan, the Law Firm has said.
The scope of work of DSK Legal included: (i) advising on overall structure for the transaction; (ii) assisting Infifresh in the due diligence process being conducted by the Series C Investors; (iii) drafting, revising, negotiating and finalizing of Transaction Documents executed between Infifresh, the Founder and Series C Investors; and (iv) assisting in completing conditions precedent and closing process of the transaction (including corporate secretarial actions), it said in a press statement.
This is the sixth successful fund-raising exercise completed by DSK Legal for Infifresh since its incorporation in June 2020, it said.
DSK Legal team for the above transaction was led by Associate Partner Jayesh Kothari, and AssociatesHemanshi Gala and Kunal Chopra. Hemang Parekh acted as the Engagement Partner for this assignment and provided crucial inputs on the transaction, the statement said.
The total deal value is Rs 372 crore (USD 50 million).
Infifresh is engaged in the business of procuring, supplying and processing fresh seafood and various categories of meat on a B2B basis (operating under the brand named Captain Fresh) catering to online retail players, modern trade, general trade retailers, hotels and restaurants catering. Infifresh proposes to use the proceeds from the issue to foray into markets of Africa, Middle East and other parts of Asia.
Tiger Global & Naspers Ventures were represented by AZB Partners & Gunderson Legal (New York).
Accel India VI (Mauritius) Limited was represented by in-housel legal team.
Matrix Partners India Investments III, LLC and Matrix Partners India III AIF Trust was represented by Rajaram Legal.
Ankur Capital Fund-II was represented by J Sagar & Associates.
Incubate Japan was represented by Pier Counsel.
New Delhi, March 19, 2022: DSK Legal has advised HDFC Capital Advisors Limited on their investment in Loyalie IT Solutions Private Limited, which operatesunder the brand name ‘Reloy’, the Law Firm has said.
The scope of work of DSK Legal included assisting HDFC Capital in the due diligence process; drafting, revising, negotiating and finalising of the transaction documents; and reviewing, assisting in completing conditions precedent and Closing of the transaction, it said in a press statement.
DSK Legal team for the transaction was led by Partner Hemang Parekh, Counsel Swati Rout and Associate Sharmishtha Bharde. Associate Partner Jayesh Kothari and Associate Kunal Chopra assisted in the closing process of the transaction.
The legal due diligence process was led by Associate Partner Jayesh Kothari, Senior Associate Harini Sutaria and Associate Kunal Chopra.
Reloy is a real estate digital amenities and referral solutions provider. It is engaged in the business of offering marketing schemes and loyalty/reward bonuses to its customers and existing customers of the developers by providing real estate brokering services using iOS and Android based mobile applications.
The Company was represented by Economic Laws Practice.
New Delhi, March 21, 2022: DSK Legal has acted as a sole counsel to Corrtech International Limited (Company) and Equirus Capital Private Limited, Book Running Lead Manager (BRLM) with respect to the initial public offering comprising of a fresh issue of equity shares aggregating up to ₹3,500 million and an offer for sale of 4,000,000 equity shares of the Company held by its promoter individually as well as jointly with the members of the promoter group.
The DRHP has been filed with SEBI on March 17, 2022, the Law firm said in a press statement.
DSK Legal assisted in drafting of the DRHP for filing with SEBI, stock exchanges and assistance in finalisation and filing of the same; drafting of the consent letters taken from all intermediaries; carrying out customary due-diligence; drafting standard certificates and undertakings required from the Company, directors, promoter, promoter group, subsidiaries, group companies, auditors and selling shareholders and additional certificates relating to consents required from various parties for the offer; drafting of comfort letter; drafting of the offer agreement; drafting of other agreements in relation to the offer, including ad agency agreement and the registrar agreement; legal sign-off on announcements regarding events during the offer period; drafting and finalizing the SEBI Cover Letter and ICDR Checklist for submission to SEBI; drafting and reviewing of all board resolutions and shareholder resolutions required to be passed by the Company; and providing advice on the changes required in the Memorandum and Articles of Association.
The team representing DSK Legal comprised of Associate Partner Gaurav Mistry; Principal Associate Avinash Poojari; Senior Associates Akanksha Dubey and Vardhman Mehta; and Associates Rishika Raghuwanshi, Avishek Banerjee and Jigar Sampat as well as Trainee Anupam Verma.
Partner Ajay Shaw acted as the engagement partner for this assignment, the Law firm said.
Justice Madan B Lokur, was a Supreme Court judge from June 2012 to December 2018. He is now a judge of the non-resident panel of the Supreme Court of Fiji. He spoke to LegitQuest on January 25, 2020.
Q: You were a Supreme Court judge for more than 6 years. Do SC judges have their own ups and downs, in the sense that do you have any frustrations about cases, things not working out, the kind of issues that come to you?
A: There are no ups and downs in that sense but sometimes you do get a little upset at the pace of justice delivery. I felt that there were occasions when justice could have been delivered much faster, a case could have been decided much faster than it actually was. (When there is) resistance in that regard normally from the state, from the establishment, then you kind of feel what’s happening, what can I do about it.
Q: So you have had the feeling that the establishment is trying to interfere in the matters?
A: No, not interfering in matters but not giving the necessary importance to some cases. So if something has to be done in four weeks, for example if reply has to be filed within four weeks and they don’t file it in four weeks just because they feel that it doesn’t matter, and it’s ok if we file it within six weeks how does it make a difference. But it does make a difference.
Q: Do you think this attitude is merely a lax attitude or is it an infrastructure related problem?
A: I don’t know. Sometimes on some issues the government or the establishment takes it easy. They don’t realise the urgency. So that’s one. Sometimes there are systemic issues, for example, you may have a case that takes much longer than anticipated and therefore you can’t take up some other case. Then that necessarily has to be adjourned. So these things have to be planned very carefully.
Q: Are there any cases that you have special memories of in terms of your personal experiences while dealing with the case? It might have moved you or it may have made you feel that this case is really important though it may not be considered important by the government or may have escaped the media glare?
A: All the cases that I did with regard to social justice, cases which concern social justice and which concern the environment, I think all of them were important. They gave me some satisfaction, some frustration also, in the sense of time, but I would certainly remember all these cases.
Q: Even though you were at the Supreme Court as a jurist, were there any learning experiences for you that may have surprised you?
A: There were learning experiences, yes. And plenty of them. Every case is a learning experience because you tend to look at the same case with two different perspectives. So every case is a great learning experience. You know how society functions, how the state functions, what is going on in the minds of the people, what is it that has prompted them to come the court. There is a great learning, not only in terms of people and institutions but also in terms of law.
Q: You are a Judge of the Supreme Court of Fiji, though a Non-Resident Judge. How different is it in comparison to being a Judge in India?
A: There are some procedural distinctions. For example, there is a great reliance in Fiji on written submissions and for the oral submissions they give 45 minutes to a side. So the case is over within 1 1/2 hours maximum. That’s not the situation here in India. The number of cases in Fiji are very few. Yes, it’s a small country, with a small number of cases. Cases are very few so it’s only when they have an adequate number of cases that they will have a session and as far as I am aware they do not have more than two or three sessions in a year and the session lasts for maybe about three weeks. So it’s not that the court sits every day or that I have to shift to Fiji. When it is necessary and there are a good number of cases then they will have a session, unlike here. It is then that I am required to go to Fiji for three weeks. The other difference is that in every case that comes to the (Fiji) Supreme Court, even if special leave is not granted, you have to give a detailed judgement which is not the practice here.
Q: There is a lot of backlog in the lower courts in India which creates a problem for the justice delivery system. One reason is definitely shortage of judges. What are the other reasons as to why there is so much backlog of cases in the trial courts?
A: I think case management is absolutely necessary and unless we introduce case management and alternative methods of dispute resolution, we will not be able to solve the problem. I will give you a very recent example about the Muzaffarpur children’s home case (in Bihar) where about 34 girls were systematically raped. There were about 17 or 18 accused persons but the entire trial finished within six months. Now that was only because of the management and the efforts of the trial judge and I think that needs to be studied how he could do it. If he could do such a complex case with so many eyewitnesses and so many accused persons in a short frame of time, I don’t see why other cases cannot be decided within a specified time frame. That’s case management. The second thing is so far as other methods of disposal of cases are concerned, we have had a very good experience in trial courts in Delhi where more than one lakh cases have been disposed of through mediation. So, mediation must be encouraged at the trial level because if you can dispose so many cases you can reduce the workload. For criminal cases, you have Plea Bargaining that has been introduced in 2009 but not put into practice. We did make an attempt in the Tis Hazari Courts. It worked to some extent but after that it fell into disuse. So, plea bargaining can take care of a lot of cases. And there will be certain categories of cases which we need to look at carefully. For example, you have cases of compoundable offences, you have cases where fine is the punishment and not necessarily imprisonment, or maybe it’s imprisonment say one month or two month’s imprisonment. Do we need to actually go through a regular trial for these kind of cases? Can they not be resolved or adjudicated through Plea Bargaining? This will help the system, it will help in Prison Reforms, (prevent) overcrowding in prisons. So there are a lot of avenues available for reducing the backlog. But I think an effort has to be made to resolve all that.
Q: Do you think there are any systemic flaws in the country’s justice system, or the way trial courts work?
A: I don’t think there are any major systemic flaws. It’s just that case management has not been given importance. If case management is given importance, then whatever systematic flaws are existing, they will certainly come down.
Q; And what about technology. Do you think technology can play a role in improving the functioning of the justice delivery system?
I think technology is very important. You are aware of the e-courts project. Now I have been told by many judges and many judicial academies that the e-courts project has brought about sort of a revolution in the trial courts. There is a lot of information that is available for the litigants, judges, lawyers and researchers and if it is put to optimum use or even semi optimum use, it can make a huge difference. Today there are many judges who are using technology and particularly the benefits of the e-courts project is an adjunct to their work. Some studies on how technology can be used or the e-courts project can be used to improve the system will make a huge difference.
Q: What kind of technology would you recommend that courts should have?
A: The work that was assigned to the e-committee I think has been taken care of, if not fully, then largely to the maximum possible extent. Now having done the work you have to try and take advantage of the work that’s been done, find out all the flaws and see how you can rectify it or remove those flaws. For example, we came across a case where 94 adjournments were given in a criminal case. Now why were 94 adjournments given? Somebody needs to study that, so that information is available. And unless you process that information, things will just continue, you will just be collecting information. So as far as I am concerned, the task of collecting information is over. We now need to improve information collection and process available information and that is something I think should be done.
Q: There is a debate going on about the rights of death row convicts. CJI Justice Bobde recently objected to death row convicts filing lot of petitions, making use of every legal remedy available to them. He said the rights of the victim should be given more importance over the rights of the accused. But a lot of legal experts have said that these remedies are available to correct the anomalies, if any, in the justice delivery. Even the Centre has urged the court to adopt a more victim-centric approach. What is your opinion on that?
You see so far as procedures are concerned, when a person knows that s/he is going to die in a few days or a few months, s/he will do everything possible to live. Now you can’t tell a person who has got terminal cancer that there is no point in undergoing chemotherapy because you are going to die anyway. A person is going to fight for her/his life to the maximum extent. So if a person is on death row s/he will do everything possible to survive. You have very exceptional people like Bhagat Singh who are ready to face (the gallows) but that’s why they are exceptional. So an ordinary person will do everything possible (to survive). So if the law permits them to do all this, they will do it.
Q: Do you think law should permit this to death row convicts?
A: That is for the Parliament to decide. The law is there, the Constitution is there. Now if the Parliament chooses not to enact a law which takes into consideration the rights of the victims and the people who are on death row, what can anyone do? You can’t tell a person on death row that listen, if you don’t file a review petition within one week, I will hang you. If you do not file a curative petition within three days, then I will hang you. You also have to look at the frame of mind of a person facing death. Victims certainly, but also the convict.
Q: From the point of jurisprudence, do you think death row convicts’ rights are essential? Or can their rights be done away with?
A: I don’t know you can take away the right of a person fighting for his life but you have to strike a balance somewhere. To say that you must file a review or curative or mercy petition in one week, it’s very difficult. You tell somebody else who is not on a death row that you can file a review petition within 30 days but a person who is on death row you tell him that I will give you only one week, it doesn’t make any sense to me. In fact it should probably be the other way round.
Q: What about capital punishment as a means of punishment itself?
A: There has been a lot of debate and discussion about capital punishment but I think that world over it has now been accepted, more or less, that death penalty has not served the purpose for which it was intended. So, there are very few countries that are executing people. The United States, Saudi Arabia, China, Pakistan also, but it hasn’t brought down the crime rate. And India has been very conservative in imposing the death penalty. I think the last 3-4 executions have happened for the persons who were terrorists. And apart from that there was one from Calcutta who was hanged for rape and murder. But the fact that he was hanged for rape and murder has not deterred people (from committing rape and murder). So the accepted view is that death penalty has not served the purpose. We certainly need to rethink the continuance of capital punishment. On the other hand, if capital punishment is abolished, there might be fake encounter killings or extra judicial killings.
Q: These days there is the psyche among people of ‘instant justice’, like we saw in the case of the Hyderabad vet who was raped and murdered. The four accused in the case were killed in an encounter and the public at large and even politicians hailed it as justice being delivery. Do you think this ‘lynch mob mentality’ reflects people’s lack of faith in the justice system?
A: I think in this particular case about what happened in Telangana, investigation was still going on. About what actually happened there, an enquiry is going on. So no definite conclusions have come out. According to the police these people tried to snatch weapons so they had to be shot. Now it is very difficult to believe, as far as I am concerned, that 10 armed policeman could not overpower four unarmed accused persons. This is very difficult to believe. And assuming one of them happened to have snatched a (cop’s) weapon, maybe he could have been incapacitated but why the other three? So there are a lot of questions that are unanswered. So far as the celebrations are concerned, the people who are celebrating, do they know for certain that they (those killed in the encounter) were the ones who did the crime? How can they be so sure about it? They were not eye witnesses. Even witnesses sometimes make mistakes. This is really not a cause for celebration. Certainly not.
Q: It seems some people are losing their faith in the country’s justice delivery system. How to repose people’s faith in the legal process?
A: You see we again come back to case management and speedy justice. Suppose the Nirbhaya case would have been decided within two or three years, would this (Telangana) incident have happened? One can’t say. The attack on Parliament case was decided in two or three years but that has not wiped out terrorism. There are a lot of factors that go into all this, so there is a need to find ways of improving justice delivery so that you don’t have any extremes – where a case takes 10 years or another extreme where there is instant justice. There has to be something in between, some balance has to be drawn. Now you have that case where Phoolan Devi was gangraped followed by the Behmai massacre. Now this is a case of 1981, it has been 40 years and the trial court has still not delivered a judgement. It’s due any day now, (but) whose fault is that. You have another case in Maharashtra that has been transferred to National Investigating Agency two years after the incident, the Bhima-Koregaon case. Investigation is supposedly not complete after two years also. Whose fault is that? So you have to look at the entire system in a holistic manner. There are many players – the investigation agency is one player, the prosecution is one player, the defence is one player, the justice delivery system is one player. So unless all of them are in a position to coordinate… you cannot blame only the justice delivery system. If the Telangana police was so sure that the persons they have caught are guilty, why did they not file the charge sheet immediately? If they were so sure the charge sheet should have been filed within one day. Why didn’t they do it?
Q: At the trial level, there are many instances of flaws in evidence collection. Do you think the police or whoever the investigators are, do they lack training?
A: Yes they do! The police lacks training. I think there is a recent report that has come out last week which says very few people (in the police) have been trained (to collect evidence).
Q: You think giving proper training to police to prepare a case will make a difference?
A: Yes, it will make a difference.
Q: You have a keen interest in juvenile justice. Unfortunately, a lot of heinous crimes are committed by juveniles. How can we correct that?
A: You see it depends upon what perspective we are looking at. Now these heinous crimes are committed by juveniles. Heinous crimes are committed by adults also, so why pick upon juveniles alone and say something should be done because juveniles are committing heinous crimes. Why is it that people are not saying that something should be done when adults are committing heinous crimes? That’s one perspective. There are a lot of heinous crimes that are committed against juveniles. The number of crimes committed against juveniles or children are much more than the crimes committed by juveniles. How come nobody is talking about that? And the people committing heinous crimes against children are adults. So is it okay to say that the State has imposed death penalty for an offence against the child? So that’s good enough, nothing more needs to be done? I don’t think that’s a valid answer. The establishment must keep in mind the fact that the number of heinous crimes against children are much more than those committed by juveniles. We must shift focus.
Q: Coming to NRC and CAA. Protests have been happening since December last year, the SC is waiting for the Centre’s reply, the Delhi HC has refused to directly intervene. Neither the protesters nor the government is budging. How do we achieve a breakthrough?
A: It is for the government to decide what they want to do. If the government says it is not going to budge, and the people say they are not going to budge, the stalemate could continue forever.
Q: Do you think the CAA and the NRC will have an impact on civil liberties, personal liberties and people’s rights?
A: Yes, and that is one of the reasons why there is protest all over the country. And people have realised that it is going to happen, it is going to have an impact on their lives, on their rights and that’s why they are protesting. So the answer to your question is yes.
Q: Across the world and in India, we are seeing an erosion of the value system upholding rights and liberties. How important is it for the healthy functioning of a country that social justice, people’s liberties, people’s rights are maintained?
A: I think social justice issues, fundamental rights are of prime importance in our country, in any democracy, and the preamble to our Constitution makes it absolutely clear and the judgement of the Supreme Court in Kesavananda Bharati and many other subsequent judgments also make it clear that you cannot change the basic structure of the Constitution. If you cannot do that then obviously you cannot take away some basic democratic rights like freedom of assembly, freedom of movement, you cannot take them away. So if you have to live in a democracy, we have to accept the fact that these rights cannot be taken away. Otherwise there are many countries where there is no democracy. I don’t know whether those people are happy or not happy.
Q: What will happen if in a democracy these rights are controlled by hook or by crook?
A: It depends upon how much they are controlled. If the control is excessive then that is wrong. The Constitution says there must be a reasonable restriction. So reasonable restriction by law is very important.
Q: The way in which the sexual harassment case against Justice Gogoi was handled was pretty controversial. The woman has now been reinstated in the Supreme Court as a staffer. Does this action of the Supreme Court sort of vindicate her?
A: I find this very confusing you know. There is an old joke among lawyers: Lawyer for the petitioner argued before the judge and the judge said you are right; then the lawyer for the respondent argued before the judge and the judge said you’re right; then a third person sitting over there says how can both of them be right and the judge says you’re also right. So this is what has happened in this case. It was found (by the SC committee) that what she said had no substance. And therefore, she was wrong and the accused was right. Now she has been reinstated with back wages and all. I don’t know, I find it very confusing.
Q: Do you think the retirement age of Supreme Court Judges should be raised to 70 years and there should be a fixed tenure?
A: I haven’t thought about it as yet. There are some advantages, there are some disadvantages. (When) You have extended age or life tenure as in the United States, and the Supreme Court has a particular point of view, it will continue for a long time. So in the United States you have liberal judges and conservative judges, so if the number of conservative judges is high then the court will always be conservative. If the number of liberal judges is high, the court will always be liberal. There is this disadvantage but there is also an advantage that if it’s a liberal court and if it is a liberal democracy then it will work for the benefit of the people. But I have not given any serious thought onthis.
Q: Is there any other thing you would like to say?
A: I think the time has come for the judiciary to sit down, introspect and see what can be done, because people have faith in the judiciary. A lot of that faith has been eroded in the last couple of years. So one has to restore that faith and then increase that faith. I think the judiciary definitely needs to introspect.
‘A major issue for startups, especially during fund raising, is their compliance with extant RBI foreign exchange regulations, pricing guidelines, and the Companies Act 2013.’- Aakash Parihar
Aakash Parihar is Partner at Triumvir Law, a firm specializing in M&A, PE/VC, startup advisory, international commercial arbitration, and corporate disputes. He is an alumnus of the National Law School of India University, Bangalore.
How did you come across law as a career? Tell us about what made you decide law as an option.
Growing up in a small town in Madhya Pradesh, wedid not have many options.There you either study to become a doctor or an engineer. As the sheep follows the herd, I too jumped into 11th grade with PCM (Physics, Chemistry and Mathematics).However, shortly after, I came across the Common Law Admission Test (CLAT) and the prospect of law as a career. Being a law aspirant without any background of legal field, I hardly knew anything about the legal profession leave alone the niche areas of corporate lawor dispute resolution. Thereafter, I interacted with students from various law schools in India to understand law as a career and I opted to sit for CLAT. Fortunately, my hard work paid off and I made it to the hallowed National Law School of India University, Bangalore (NSLIU). Joining NLSIU and moving to Bangalorewas an overwhelming experience. However, after a few months, I settled in and became accustomed to the rigorous academic curriculum. Needless to mention that it was an absolute pleasure to study with and from someof the brightest minds in legal academia. NLSIU, Bangalore broadened my perspective about law and provided me with a new set of lenses to comprehend the world around me. Through this newly acquired perspective and a great amount of hard work (which is of course irreplaceable), I was able to procure a job in my fourth year at law school and thus began my journey.
As a lawyer carving a niche for himself, tell us about your professional journey so far. What are the challenges that new lawyers face while starting out in the legal field?
I started my professional journey as an Associate at Samvad Partners, Bangalore, where I primarily worked in the corporate team. Prior to Samvad Partners, through my internship, I had developed an interest towards corporate law,especially the PE/VC and M&A practice area. In the initial years as an associate at Samvad Partners and later at AZB & Partners, Mumbai, I had the opportunity to work on various aspects of corporate law, i.e., from PE/VC and M&A with respect to listed as well as unlisted companies. My work experience at these firms equipped and provided me the know-how to deal with cutting edge transactional lawyering. At this point, it is important to mention that I always had aspirations to join and develop a boutique firm. While I was working at AZB, sometime around March 2019, I got a call from Anubhab, Founder of Triumvir Law, who told me about the great work Triumvir Law was doing in the start-up and emerging companies’ ecosystem in Bangalore. The ambition of the firm aligned with mine,so I took a leap of faith to move to Bangalore to join Triumvir Law.
Anyone who is a first-generation lawyer in the legal industry will agree with my statement that it is never easy to build a firm, that too so early in your career. However, that is precisely the notion that Triumvir Law wanted to disrupt. To provide quality corporate and dispute resolution advisory to clients across India and abroad at an affordable price point.
Once you start your professional journey, you need to apply everything that you learnt in law schoolwith a practical perspective. Therefore, in my opinion, in addition to learning the practical aspects of law, a young lawyer needs to be accustomed with various practices of law before choosing one specific field to practice.
India has been doing reallywell in the field of M&A and PE/VC. Since you specialize in M&A and PE/VC dealmaking, what according to you has been working well for the country in this sphere? What does the future look like?
India is a developing economy, andM&A and PE/VC transactions form the backbone of the same. Since liberalization, there has been an influx of foreign investment in India, and we have seen an exponential rise in PC/VA and M&A deals. Indian investment market growth especially M&A and PE/VC aspects can be attributed to the advent of startup culture in India. The increase in M&A and PE/VC deals require corporate lawyersto handle the legal aspects of these deals.
As a corporate lawyer working in M&A and PE/VC space, my work ranges from drafting term-sheets to the transaction documents (SPA, SSA, SHA, BTA, etc.). TheM&A and PE/VC deal space experienced a slump during the first few months of the pandemic, but since June 2021, there has been a significant growth in M&A and PE/VC deal space in India. The growth and consistence of the M&A and PE/VC deal space in India can be attributed to several factors such as foreign investment, uncapped demands in the Indian market and exceptional performance of Indian startups.
During the pandemic many businesses were shut down but surprisingly many new businesses started, which adapted to the challenges imposed by the pandemic. Since we are in the recovery mode, I think the M&A and PE/VC deal space will reach bigger heights in the comingyears. We as a firm look forward to being part of this recovery mode by being part of the more M&A and PE/VC deals in future.
You also advice start-ups. What are the legal issues or challenges that the start-ups usually face specifically in India? Do these issues/challenges have long-term consequences?
We do a considerable amount of work with startupswhich range from day-to-day legal advisory to transaction documentation during a funding round. In India, we have noticed that a sizeable amount of clientele approach counsels only when there is a default or breach, more often than not in a state of panic. The same principle applies to startups in India, they normally approach us at a stage when they are about to receive investment or are undergoing due diligence. At that point of time, we need to understand their legal issues as well as manage the demands of the investor’s legal team. The majornon-compliances by startups usually involve not maintaining proper agreements, delaying regulatory filings and secretarial compliances, and not focusing on proper corporate governance.
Another major issue for startups, especially during fund raising, is their compliance with extant RBI foreign exchange regulations, pricing guidelines, and the Companies Act 2013. Keeping up with these requirements can be time-consuming for even seasoned lawyers, and we can only imagine how difficult it would be for startups. Startups spend their initial years focusing on fund-raising, marketing, minimum viable products, and scaling their businesses. Legal advice does not usually factor in as a necessity. Our firm aims to help startups even before they get off the ground, and through their initial years of growth. We wanted to be the ones bringing in that change in the legal sector, and we hope to help many more such startups in the future.
In your opinion, are there any specific India-related problems that corporate/ commercial firms face as far as the company laws are concerned? Is there scope for improvement on this front?
The Indian legal system which corporate/commercial firms deal with is a living breathing organism, evolving each year. Due to this evolving nature, we lawyers are always on our toes.From a minor amendment to the Companies Act to the overhaul of the foreign exchange regime by the Reserve Bank of India, each of these changes affect the compliance and regulatory regime of corporates. For instance, when India changed the investment route for countries sharing land border with India,whereby any country sharing land border with India including Hong Kong cannot invest in India without approval of the RBI in consultation with the central government,it impacted a lot of ongoing transactions and we as lawyers had to be the first ones to inform our clients about such a change in the country’s foreign investment policy. In my opinion, there is huge scope of improvement in legal regime in India, I think a stable regulatory and tax regime is the need for the hour so far as the Indian system is concerned. The biggest example of such a market with stable regulatory and tax regime is Singapore, and we must work towards emulating the same.
Your boutique law firm has offices in three different cities — Delhi NCR, Mumbai and Bangalore. Have the Covid-induced restrictions such as WFH affected your firm’s operations? How has your firm adapted to the professional challenges imposed by the pandemic-related lifestyle changes?
We have offices in New Delhi NCR and Mumbai, and our main office is in Bangalore. Before the pandemic, our work schedule involved a fair bit of travelling across these cities. But post the lockdowns we shifted to a hybrid model, and unless absolutely necessary, we usually work from home.
In relation to the professional challenges during the pandemic, I think it was a difficult time for most young professionals. We do acknowledge the fact that our firm survived the pandemic. Our work as lawyers/ law firms also involves client outreach and getting new clients, which was difficult during the lockdowns. We expanded our client outreach through digital means and by conducting webinars, including one with King’s College London on International Treaty Arbitration. Further, we also focused on client outreach and knowledge management during the pandemic to educate and create legal awareness among our clients.
‘It’s a myth that good legal advice comes at prohibitive costs. A lot of heartburn can be avoided if documents are entered into with proper legal advice and with due negotiations.’ – Archana Balasubramanian
Archana Balasubramanian is the founding partner of Agama Law Associates, a Mumbai-based corporate law firm which she started in 2014. She specialises in general corporate commercial transaction and advisory as well as deep sectoral expertise across manufacturing, logistics, media, pharmaceuticals, financial services, shipping, real estate, technology, engineering, infrastructure and health.
August 13, 2021:
Lawyers see companies ill-prepared for conflict, often, in India. When large corporates take a remedial instead of mitigative approach to legal issues – an approach utterly incoherent to both their size and the compliance ecosystem in their sector – it is there where the concept of costs on legal becomes problematic. Pre-dispute management strategy is much more rationalized on the business’ pocket than the costs of going in the red on conflict and compliances.
Corporates often focus on business and let go of backend maintenance of paperwork, raising issues as and when they arise and resolving conflicts / client queries in a manner that will promote dispute avoidance.
Corporate risk and compliance management is yet another elephant in India, which in addition to commercial disputes can be a drain on a company’s resources. It can be clubbed under four major heads – labour, industrial, financial and corporate laws. There are around 20 Central Acts and then specific state-laws by which corporates are governed under these four categories.
Risk and compliance management is also significantly dependent on the sector, size, scale and nature of the business and the activities being carried out.
The woes of a large number of promoters from the ecommerce ecosystem are to do with streamlining systems to navigate legal. India has certain heavily regulated sectors and, like I mentioned earlier, an intricate web of corporate risk and compliance legislation that can result in prohibitive costs in the remedial phase. To tackle the web in the preventive or mitigative phase, start-ups end up lacking the arsenal due to sheer intimidation from legal. Promoters face sectoral risks in sectors which are heavily regulated, risks of heavy penalties and fines under company law or foreign exchange laws, if fund raise is not done in a compliant manner.
It is a myth that good legal advice comes at prohibitive costs. Promoters are quick to sign on the dotted line and approach lawyers with a tick the box approach. A lot of heartburn can be avoided if documents are entered into with proper legal advice and with due negotiations.
Investment contracts, large celebrity endorsement contracts and CXO contracts are some key areas where legal advice should be obtained. Online contracts is also emerging as an important area of concern.
When we talk of scope, arbitration is pretty much a default mechanism at this stage for adjudicating commercial disputes in India, especially given the fixation of timelines for closure of arbitration proceedings in India. The autonomy it allows the parties in dispute to pick a neutral and flexible forum for resolution is substantial. Lower courts being what they are in India, arbitration emerges as the only viable mode of dispute resolution in the Indian commercial context.
The arbitrability of disputes has evolved significantly in the last 10 years. The courts are essentially pro-arbitration when it comes to judging the arbitrability of subject matter and sending matters to arbitration quickly.
The Supreme Court’s ruling in the Vidya Drolia case has significantly clarified the position in respect of tenancy disputes, frauds and consumer disputes. It reflects upon the progressive approach of the court and aims to enable an efficient, autonomous and effective arbitration environment in India.
Law firms stand for ensuring that the law works for business and not against it. Whatever the scope of our mandate, the bottom line is to ensure a risk-free, conflict-free, compliant and prepared enterprise for our client, in a manner that does not intimidate the client or bog them down, regardless of the intricacy of the legal and regulatory web it takes to navigate to get to that end result. Lawyers need to dissect the business of law from the work.
This really involves meticulous, detail-oriented, sheer hard work on the facts, figures, dates and all other countless coordinates of each mandate, repetitively and even to a, so-called, “dull” routine rhythm – with consistent single-mindedness and unflinching resolve.
As a firm, multiply that effort into volumes, most of it against-the-clock given the compliance heavy ecosystem often riddled with uncertainties in a number of jurisdictions. So the same meticulous streamlining of mandate deliverables has to be extrapolated by the management of the firm to the junior most staff.
Further, the process of streamlining itself has to be more dynamic than ever now given the pace at which the new economy, tech-ecosystem, business climate as well as business development processes turn a new leaf.
Finally, but above all, we need to find a way to feel happy, positive and energized together as a team while chasing all of the aforesaid dreams. The competitive timelines and volumes at which a law firm works, this too is a real challenge. But we are happy to face it and evolve as we grow.
We always as a firm operated on the work from anywhere principle. We believed in it and inculcated this through document management processes to the last trainee. This helped us shut shop one day and continue from wherever we are operating.
The team has been regularly meeting online (at least once a day). We have been able to channel the time spent in travelling to and attending meetings in developing our internal knowledge banks further, streamline our processes, and work on integrating various tech to make the practice more cost-effective for our clients.
By Kumar Shashwat
June 22, 2022
Character merchandising can be defined as the revision or secondary utilization, by the creator of an imaginary character or by a real human being or by one or several sanctioned third parties, of the indispensable personality characteristics (such as the name, image or appearance) of a character in relation to a range of goods and/or services with an outlook to creating in potential consumers a yearning to get hold of those goods and to use those services because of the customers’ attraction with that character. It should already be highlighted that the person or legal entity which will systematize the merchandising activity (the merchandiser) will infrequently be the creator of the fictional character or the real person concerned. The various property or personality rights vesting in the character will be the subject matter of contracts (such as transfer or license agreements or product or service endorsement agreements), enabling one or more than a few involved third parties to be regarded as authorized users of the character.
Registration of Character Trade Marks
The primary function of marks that are symbols in its real sense is to indicate the origin of the goods so that the consumers can distinguish who is responsible for the goods that are placed in public. On the one hand, the creator of the fictional characters is not themselves engaged in such merchandising activities. Still, they may want to procure the trademark rights for their characters in order to regulate and license their use for commercial or merchandising purposes. On the other hand, sportspersons, actors, and pop stars use their characters most rewardingly.
However, in English Law, the Trade Marks Act 1938 prohibits the use of the trademark for trafficking, dealing mainly in a commodity in the right and not primarily to indicate or identify merchandise in which the owner of the trademark is interested; do not contain such restrictions with respect to the registration of trademarks.
In Tarzan, the candidates who were solely qualified to produce movies, records, and commercialization concerning the renowned anecdotal character Tarzan were denied enlisting the word Tarzan in relation to movies, attractive tape recordings, amusement toys and merchandise. The Court of Appeal held that since the word Tarzan was outstanding and was a piece of the dialect, it neglected to meet all requirements for enrolment as a developed or invented word. It was additionally held that the word had an immediate reference to the character and nature of the items since a film managing the endeavours of Tarzan would be portrayed as a “Tarzan” film, and the candidates’ different items were merchandise connected with Tarzan. Hence, the trademark was not considered to be fit for recognizing the candidates’ merchandise. Tarzan couldn’t be enlisted as a trademark because of the way that it spoke of the character and subsequently did not appear to show the origin of the items.
The idea that fame acts as the central impediment to getting the registration of a trademark was further explained in the Elvis Presley case. The candidates, who were the legitimately perceived successors of any promoting exercises carried for the famous personality Elvis Presley, were denied enlisting of the words ” Elvis” and “Elvis Presley”, and the mark “Elvis A. Presley” regarding toiletries. The Court said that every one of the products for which enrollment was looked for was legitimately viewed as memorabilia since they were promoted principally because of their connection with the name and picture of Elvis Presley. It was in this manner held that the imprints were not unmistakable; buyers obtained stock identifying with Elvis Presley, not because they considered that Elvis Presley Enterprises showcased it, but since it conveyed the name or picture of Elvis Presley. The Court’s view was that the general population is occupied with acquiring the merchandise identified with a most loved name as a famous person and is not concerned whether licensees of such a big name create such items. Finally, the Court held that when a character is well known, it is exceptionally far-fetched that the check will mean the inception of the item.
Also, in the Diana case, the executrices of the Estate of Diana, Princess of Wales connected to enlist as a trademark the words “Diana, Princess of Wales” for a wide variety of products and ventures. However, the application was rejected since it was held that the words Diana, Princess of Wales needed peculiarity. It was held that while most individual names might be considered to symbolize the inception of the merchandise, this is not the situation where an acclaimed name is worried; in such cases, it is conceivable that the name will serve to mean the topic of the items, rather than its beginning. It was further held that a normal customer would not expect that all memorabilia bearing the Princess’ name were marketed under the control of one undertaking in charge of their quality.
Exactly when an anecdotal character is introduced in academic work, as a creative work, or an abstract work, it is spoken to by the gauges of copyright law. Usually, the makers of the works hold copyright over these characters. When these characters are a part of a film or the producer has copyrights over the character. Note that the copyright may not come to exist in any fictional character appearing in a copyrighted work without any other person’s information. For such a character to be freely secured under the degree of copyright certification, the character must be managed independently of the story, cartoon or movie that it belongs to. In this instance, Star India v. Leo Burnett, the above was noted:
“The fictional characters are generally drawings in which copyright subsists, e.g., cartoon, and celebrities are living beings who are otherwise very famous in any particular field, e.g., film stars, sportsmen. It is necessary for character merchandising that the characters to be merchandised must have gained some public recognition, that is, achieved a form of independent life and public recognition for itself independently of the original product or independently of the milieu/area in which it appears. Only then can such character be moved into the area of character merchandising. This presumes that the character has independently acquired such reputation as to be a commodity in its own right independently of the goods or services to which it is attached or the field/area in which it originally appears. It is only when this is established on evidence as a fact, that the claimant may be able to claim a right to prevent anyone else from using such a character for other purposes.”
The producer of a film won’t have full rights to exploit the characters that can’t be disengaged from the performer portraying the same. In such a case, the character benefits of the performing craftsman apply despite the producer’s copyrights. This, from time to time, offers a climb to a battle between the two sorts of rights. For example, there has been a conflict between a performing artist assuming the part of a well-known character Gutthi in an Indian TV show and a TV station, which is additionally the maker of the arrangement. Because of this conflict, the performing artist moved out of the show and went ahead to begin his new show on an alternate TV slot. The principal TV slot issued an open proclamation that the character Gutthi had been made for the first show. Thus, it has copyright over the same. The on-screen character issued another announcement declaring his identity rights and saying that it is he who has accomplished acknowledgement as and is constantly related to Gutthi. Inferable from this conflict of rights, none of the parties could utilize the character Gutthi in their separate shows amid the season of the conflict. Identity rights unmistakably apply in instances of superstar marketing. Copyright is relevant just to the degree there are photos of superstars, and they are to be popularized; the picture takers have rights over the photographic works.
Since the vital character components of fanciful and authentic people are utilized as a part of the connection to business articles, trademark law standards likewise come into light in instances of character promotion. For example, in India, a trademark is known as any gadget, heading, plan, mark, word, name, signature, and so on which is fit for a graphical representation and which ought to be equipped for recognizing merchandise and/or administrations of one gathering from those of the other. This broad clarification makes it conceivable to have any anecdotal or real individual’s crucial identity elements as trademarks. For example, the name of a character and his picture, signature, character outlines, voice, catchphrases he utilized, and so forth could be ensured under trademark law.
When it comes to craftsmanship, one needs to consider the most unmistakable identity properties that are celebrated and deserving of trademark security. Character promoting is the initial step for treating acclaimed anecdotal characters or genuine identities as exchange signs. Famous people additionally authorize their identity and name rights under the laws of passing off. For example, in a noteworthy case concerning the identity and trademark privileges of the well-known pop singer “Daler Mehndi”, the pop star and his partner, the offended party, could effectively uphold trademark rights over the name “Daler Mehndi” against the respondents who earned tremendous financial gains by the offering of toys in light of his identity. Even though the name of Daler Mehndi or his fundamental identity components were not enrolled as trademarks, custom-based law gives exclusive privileges to the pop star in his name and identity. The productive instance of passing off could be brought for the execution of customary law marketing rights by the proprietors of such characters in case crucial parts of their characters’ personalities are used without their endorsement. Getting statutory trademark security is also profitable in bringing actual blue instances of trademark infringement against manhandling. The proprietors of universally acclaimed characters like Batman, Harry Potter and so forth have likewise procured statutory rights by enlisting the characters’ names as trademarks in India. On the Indian side, the proprietors of the fictional character Munnabhai (that showed up in the motion picture titled “Munnabhai MBBS” and its continuation “Lage Raho Munnabhai”) have additionally enlisted such character name as a trademark.
 Tarzan Trade Mark  FSR 245, CA.
 Elvis Presley Trade Mark  RPC 543.
 Diana Princess of Wales Trade Mark  ETMR 25. See also the similar view of Isaac,B., ‘Merchandising or Fundraising? Trade Marks and the Diana, Princess of Wales Memorial Fund’ (1998) 20 European Intellectual Property Review 441.
1. Ahuja V K, Law Relating to Intellectual Property Rights (English), Lexis Nexis, 2nd Edition, 2013.
2. Wadehra B L, Law Relating to Intellectual Property (English), Universal Law Publication, 5th Edition, 2012.
3. Ananth Padmanabhan, Intellectual Property Rights HB (English), Lexis Nexis- New Delhi, 1st Edition (Hardcover), 2012.
1. John Perry Barlow, The Economy of Ideas, Wired, Mar. 1994
2. Emem Uduak Udobong, Copyright infringement in the search engine, December 2005.
Kumar Shashwat is Founding Partner at Kumar & Singh Associates.
By Deo Prakash Singh
June 2, 2022
Disciplinary proceedings are the documented rules that define the relationship and control between a master and a servant. The power of the master to exercise control over the servant is to maintain and sustain the working environment at the workplace to achieve the dedicated goal and objectives. It signifies the obligation of the servant to obey and act in accordance with the code of conduct formulated by the master.
Disciplinary action is imposed by the employer on an employee against an act of misconduct by ordering punishment. The proceedings are perhaps the most vast and litigated branches in India and are full of dilemmas and dogmas. Service matters have the maximum number of commentaries, statutes, rules and regulations. The author here tries to discuss disciplinary proceedings — how they are conducted in public service tribunals, the procedure through which cases filed, and how they are conducted.
The general conception that a government job, in contrast to a private job, is a safe and secure job that ensures uninterrupted pay, perks and other service benefits is a misnomer. The statement may be true to a considerable extent because of the play and importance of natural justice in conducting disciplinary proceedings in public service. But the master in this case is that the mighty state has the capacity to diminish the future prospects of a government delinquent employee. Not only this, in public service the government delinquent employee has no way except to knock the doors of the court which is a time-taking and expensive exercise that sometimes even remains undecided. During the pendency of the litigation the employee may be deprived of service benefits and promotions. It is very difficult to decide between the two — whether justice delayed is justice denied or justice hurried is justice buried. The principle of natural justice sometimes derails from its impregnated objective.
Natural Justice and Disciplinary Proceedings
The principles of natural justice, generally, are taken care of while conducting disciplinary proceedings.
Article 311 of the Constitution of India guarantees the protection of rights of civil servants against arbitrary dismissal, removal and reduction in rank. This protection is not available where the employee has been convicted of a criminal charge or the competent authority is satisfied that compliance with the rules of natural justice is not reasonably practicable or the President or the Governor is satisfied that holding of an enquiry is not expedient in the interest of the security of the state. This is one of the express exceptions referred to in Article 310 and not subject to any control by any other provision of the Constitution. This provision in the Constitution aims at providing security of tenure to a government servant. This shield is a security to the extent of providing certain safeguards which have been made conditions precedent for dismissal or removal or reduction in rank of a government servant.
It is established that the principle of natural justice mainly comprises of following two rules:
(I) no person is to be condemned without hearing
(II) no person shall be a judge of his own cause
These two are the basic features. It means that fairness in conducting the proceedings shall be the essence of practice and the delinquent employee should be treated fairly which may culminate into punishment. The fairness principle requires a tribunal to proceed and hear the aggrieved employee on the points of law and procedure of fairness to protect the rights ensconced in the law book.
Elements of Disciplinary Proceedings
The proceedings are conducted under the domestic jurisdiction of the employer. To hold an enquiry into the misconduct of the employee is the most important feature and a precondition to the imposition of any punishment on a public servant. It is a universal principle and procedure because of the fact that almost all government servants and employees of statutory corporations or government companies are governed by rules which generally provide for a detailed procedure to be followed before imposing any punishment.
A departmental proceeding is a quasi-judicial proceeding and hence the enquiry officer’s performance a quasi-judicial function. The articles of charges levelled against the delinquent employee must be found to have been proved. The enquiry officer is duty-bound to arrive at a finding upon taking into consideration the materials brought on record by the parties. The proceeding has to be conducted against any person in a strict adherence to the statutory provisions and the principles of natural justice. The charges would be specific, definite and distinct setting out the details of the incident which forms the basis of the charges. No enquiry can be sustained on vague charges. The enquiry has to be conducted fairly, objectively but not subjectively. The findings should not be unreasonable and perverse nor the same should be based on conjectures and surmises. The court is very a specific on proof and suspicion. Every act or omission on the part of the delinquent employee cannot be a misconduct. The authority must record reasons for arriving at the findings of fact in the context of the statute defining the misconduct. Evidence adduced should not be perfunctory. Even if the delinquent employee does not take the defence or raise any protest, that does not absolve the inquiring authority from being vitiated for the reason particularly in respect of an order involving adverse or penal consequences.
Central Civil Services (Classification, Control and Appeal) Rules, 1965 under Rule 11 enumerated major and minor penalties and the procedure to conduct the disciplinary proceedings. It has also provided, under many decisions of the Government of India, the difference and definition of major and minor penalties in which major penalty shall be in case of grave and serious charges.
The Law provides for the establishment of Administrative Tribunal for the Union and the states specifying the jurisdiction and powers of such tribunals, procedure to be followed by the tribunals and excludes the jurisdiction of all courts except the Supreme Court.
The law also provides that the president in case of Union and the Governor in case of a state may make rules and regulations of services and posts in connection with the affairs of the state to such services.
Here it is important to include that only government servants throughout a state can file their respective cases in the tribunal to get their grievances redressed. It means that the tribunals are vested with the authority to hear the grievances of the employees of the state/Union only whereas further the employees working with private companies or organisations which are not owned by the state can only file their cases under industrial disputes in labour courts and industrial tribunals.
Normally the disciplinary authority appoints a preliminary enquiry officer to look into the alleged charges against the government servant and if the preliminary enquiry officer is prima facie guilty of the alleged misconduct, he may prepare a charge-sheet of the same and produce it before the disciplinary authority. The proceeding may not be known to the delinquent employee. The disciplinary authority on the basis of the charge-sheet submitted by the preliminary enquiry officer proceed to initiate departmental enquiry and it may start afresh and may not be from the point where the preliminary enquiry officer left. It is an established rule that the preliminary enquiry officer cannot be appointed as enquiry officer in the full-fledged enquiry as he may be prejudiced to the delinquent employee because he had already framed a charge-sheet against him in the preliminary enquiry.
Procedure To Conduct Enquiry In Case Of Major Penalty
The appointing authority/ disciplinary authority has to issue in order to initiate the disciplinary proceedings against the government servant. Sometimes the Governor of the state has to do the same as he is being the appointing authority of the specified government servants. The disciplinary authority may himself enquire into the charges or appoint an officer subordinate to the enquiry officer to enquire into the charges. The charge-sheet shall be approved by the disciplinary authority. The charges should be precise and clear to facilitate the government servant of the facts and circumstances against him. The documentary evidences and the names of witnesses proposed should prove the same along with oral evidence.
The delinquent government servant shall be required to submit a written statement of his defence in person within a specified time period mentioned in the book of rules preferably within 15 days from the date of issue/receipt of the order. The government servant shall have to state that whether he desires to cross examine any witness mentioned in the charge-sheet or whether he desires to produce some new or extra evidence. He shall also be informed that in case a written submission is not filed within the specified date it will be presumed that he has none to furnish and the enquiry officer shall proceed to complete the enquiry ex parte.
It has also been decided by a court judgement that after the charge-sheet is given to the employee, an oral enquiry is must and notice should be given to the employee intimating him about the date, time and place of enquiry. It has also been laid down in this case that if an opportunity to the employee to produce witnesses or to rebut the evidence against him is not given then the whole enquiry is liable to be quashed ab initio and the punishment on the basis of such enquiry report shall not be sustainable.
It is settled law that the documents relied in support of the charges have to be proved in departmental enquiry by the enquiry officer in the presence of the delinquent employee. The government servant is also at liberty to ask for documents in case they are mentioned in the charge-sheet. But is the same have not been annexed with the charge-sheet, then opportunity of inspection has to provided.
Per contra if the charged government employee admits the charges, the enquiry officer shall submit his report to the disciplinary authority without further proceedings in enquiry but where the charged government servant denies the charges, the enquiry officer shall proceed with the enquiry to call on the witnesses as per the rules framed under the law in the presence of the government employee who shall be given the opportunity to cross examine such witnesses. After recording the aforesaid evidence, the enquiry officer records oral evidence if the charged government servant desired so in his written defence submission. The enquiry officer may ask what he pleases at any time from any witness or from the person charged with a view to discover the truth or to obtain proof. The disciplinary authority may appoint a presenting officer to present the facts of charges from the government side whereas the charged government servant too can take help of a retired government employee or legal practitioner if the enquiry officer gives his consent for it.
When the enquiry is complete, the enquiry officer shall submit its enquiry report to the disciplinary authority along with all records. The report shall consist of sufficient record of brief facts, the evidence and statement of findings on each charge with reasons thereof but the enquiry officer shall not make any recommendation about the penalty. The enquiry officer shall have to submit his final report within six months from the date of issuance of the order by the disciplinary authority and he is bound to adhere to the time-limit. In any case the total time-limit to complete a disciplinary proceeding should not exceed 18 months from the date of initiation of the proceedings, i.e., from the date of issuance of the framing of charges letter.
If there is vigilance angle, the advice of CVC shall be sought and the time limit for the advice shall be maximum 30 days. For the second advice from the CVC, the same time-limit of 30 days shall be available. Similarly the time limit for concurrence from the UPSC shall be 30 days.
Stage of Tribunal
The cause of action arises due to the impugned punishment order by the disciplinary authority against the delinquent employee and here the role of lawyers come into play to represent the petitioner/the applicant under section 19 of the Administrative Tribunal Act, 1985. Before bringing a case of disciplinary proceeding to the tribunal, the aggrieved employee against whom an adverse order has been passed has to make representation to the appellate authority against the order. It is only after the representations remain unanswered by the authorities or if the delinquent employee has not been satisfied then he can bring his case to the tribunal. The government servant challenges an adverse order as bad order in the tribunal.
The aggrieved employee says in his submissions in the court that the proceeding conducted against him were unjust, unwarranted, malicious and/or arbitrary and the charges levelled against him are unjustified and against the principles of natural justice. The petitioner prays to quash the impugned order as if it had never been passed so that he may be entitled to all consequential service benefits to which he is entitled.
The petitioner may pray for interim relief but the interim relief sought should be different from the final relief. It is prayed in the court that if the impugned order is left to stand it will do irreparable loss to the petitioner.
Disciplinary action cannot be based on breach of statutory rules or administrative actions which do not supplement rules or are inconsistent with them. Before initiating any disciplinary proceeding the master must be prima facie satisfied that the employee has committed some misconduct. The misconduct must be committed during the tenure of the service. An allegation of misconduct against an officer in relation to his quasi-judicial functions cannot be made merely on the basis that he made a mistake of judgement while passing the order. This is because the administrative adjudication also requires to perform their functions without fear or favour which may be defeated by the constant threat of disciplinary proceedings.
Disciplinary proceedings cannot be initiated only on the basis of suspicion. There must be a reasonable basis. Those disciplinary proceedings shall be quashed if the exercise of power was not bona fide, e.g. anonymous complaints, biased preliminary enquiry and disregard to the directions of the Chief Justice by the full court. Similarly, if an employee is allowed to retire on attaining the age of superannuation even after initiation of disciplinary proceedings, major management cannot be imposed on him thereafter except under rare circumstances since retirement results in severance of relationship of master and servant.
Deo Prakash Singh an Advocate practicing at the Patna High Court.
By Pallavi Ghaisas
May 31, 2022
Prior to commencement of Real Estate (Regulation and Development) Act, 2016, (“RERA”), in landmark judgment in Vaidehi Akash Housing Pvt.Ltd. Vs. New D.N. Nagar Co-op.Housing Society Union Ltd. & Ors. [2015(3)ABR270] (“Vaidehi’s Judgement”), decided on 1st December 2014 by Hon’ble Justice S C Gupte of Hon’ble Bombay High Court, inter alia, decided the rights of third party purchasers (“Allottees”) under Maharashtra Ownership Flats Act, 1963 (“MOFA”) vis-à-vis society after termination of development agreement with Developer (“Ex-Developer”). It was observed that the development agreement executed by the Ex-Developer with the society was on principal to principal basis and as per agreement executed by the Allottees with Ex-Developer, the rights of Allottees thereunder were subject to Ex-Developer’s rights and not higher than those. It was held that (i) society was not a co-promoter U/s. 2 (c) of MOFA and was merely in the position of owner vis-à-vis third party purchasers and (ii) the purchasers did not have any enforceable right, under MOFA, against the Society or the New Developer appointed by society, after termination of development agreement with Ex-Developer.
B. RERA- Regime
In the matter of Peter Almeida and Tangerine Almeida vs. M/s. Shubh Enterprises and others [Compliant No. CC006000000055575], filed by complainants therein being allottees, facts are similar to the said Vaidehi matter, the essence being the society terminates the development agreement with Developer (Ex-Developer) and appoints a New Developer for construction on land held by society. The allottees who paid monies to the Ex-Developer for securing flats under allotment letter executed with Ex-Developer sought direction from Regulatory Authority, against the society and the New Developer, for (i) executing agreement for sale and (ii) allotting flat in newly constructed building.
The Maharashtra Real Estate Regulatory Authority, Mumbai (“Regulatory Authority”) by its order dated 5thNovember 2019 directed that registered agreement for sale to be executed with complainants therein (being allottees of Ex-Developer) in accordance with the allotment letter issued by Ex-Developer. The ratio of the Vaidehi’s Judgement was not applied by the Regulatory Authority inter alia for the reason that it was before commencement of RERA and it held that after transfer of development rights in favour of the New Developer, the commitment of Ex-Developer will have to be honoured by the New Developer and society.
By common judgement dated 6th May 2022 in the appeals filed therein, the Maharashtra Real Estate Appellate Tribunal dealt with the question of- “Whether Allottees are entitled to reliefs as claimed in the complaint against the Society and New Developer” while answering the same in negative, it was inter alia reasoned as follows:
i. Since Society is not a party to contract / agreement for sale executed between Allottees and the Ex-Developer, the society cannot be held liable to any obligations that are required to be performed by Ex-Developer towards Allottees;
ii. Society has no privity of contract with the Allottees and the transaction is purely and only between the Allottees and the Ex-Developer as per settled position of law;
iii. Project registered by the New Developer does not involve the circumstances where there is a transfer in its favour as contemplated under Section 15 of RERA
iv. Neither the society nor New Developer appointed by it are under obligation to recognise claims of allottees as prayed for in the complaint therein;
v. In the absence of privity of contract, the Society and New Developer cannot be held liable to Allottees and consequently Allottees are not entitled to reliefs as claimed against the Society and New Developer;
vi. Under these circumstances, since New Developer has already taken over the project, no flat can be made available to Allottees in the project;
vii. The alternative claim of Allottees for refund, if at all, can be considered only against the Ex-Developer who has received the amount of earnest money from Allottees.
The complaint was remanded to the Regulatory Authority for considering and deciding the claim of allottees afresh to the extent of refund of the amount against Ex-Developer after hearing the concerned Parties.
Impact of RERA Judgement on Third-Party Purchasers
There are many projects halted or abandoned by Developers almost everywhere. The Society in such cases usually terminates the Development Agreement and appoints a New Developer. In such circumstances the allottees who have paid monies to Ex-Developer will now have an option to enforce their rights against Ex-Developer, before RERA authorities, for refund of amount paid by them.
Pallavi Ghaisas is a Lawyer specialising in the field of Real Estate. She works at Federal & Company, a Mumbai-based law firm.
In W.P.(C)13881/2019-DEL HC- Petitioner having participated in selection process cannot challenge same after he has been declared unsuccessful: Delhi HC dismisses petition of unsuccessful candidate competing for post of Junior Judicial Assistant/Restorer
Justices Vibhu Bakhru & Amit Mahajan [26-09-2022]
Justices Vibhu Bakhru & Amit Mahajan [26-09-2022]
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