{"id":5140,"date":"2023-06-20T07:51:46","date_gmt":"2023-06-20T07:51:46","guid":{"rendered":"https:\/\/zeus.firm.in\/zeus-newsletter-june-2023\/"},"modified":"2023-06-20T07:51:46","modified_gmt":"2023-06-20T07:51:46","slug":"zeus-newsletter-june-2023","status":"publish","type":"post","link":"https:\/\/zeus.firm.in\/zeus-newsletter-june-2023\/","title":{"rendered":"ZEUS Newsletter June 2023"},"content":{"rendered":"
Highlights:<\/strong><\/span><\/p>\n Notification dated 03.05.2023 issued by the Ministry of Finance on transactions done by Chartered Accountants (CA), Company Secretaries (CS), Certified Management Accountants (CMA) on behalf of their clients to be covered under the Prevention of Money Laundering Act, 2002 (PMLA).<\/strong>\u00a0<\/strong><\/span><\/p>\n shall be included under the ambit of the definition of \u201cperson carrying on designated business or profession\u201d By virtue of this inclusion the persons mentioned above have also been included in the definition of \u2018Reporting Entity\u2019 under the Act.<\/p>\n Circular dated 03.05.2023 issued by SEBI on introduction of Legal Entity Identifier (LEI) for issuers who have listed and\/or propose to list non-convertible securities, securities debt instruments and security receipts.<\/em><\/strong>\u00a0<\/strong><\/span><\/p>\n Notification dated 10.05.2023 issued by the Ministry of Corporate Affairs (MCA) on the Companies (Removal of Names of Companies from the Registrar of Companies) Second Amendment Rules, 2023.<\/em><\/strong>\u00a0<\/strong><\/span><\/p>\n Circular dated 22.05.2023 issued by Securities and Exchange Board of India on Dematerialization of securities of Hold Cos and SPVs held by Infrastructure Investment Trusts (InvITs).<\/em><\/strong>\u00a0<\/strong><\/span><\/p>\n Circular dated 09.05.2023 issued by Goa Real Estate Regulatory Authority regarding Landlord\/Investor having area revenue share in real estate project to be treated as promoter and opening of separate bank account by such landowner \/promoter or investor \/promoter to open a separate bank account for deposit of 70% of the sale proceeds realized from the allotees of their share.<\/strong><\/span><\/p>\n Order dated 15.05.2023 issued by Maharashtra Real Estate Regulatory Authority regarding verification by MahaRERA to ascertain authenticity of commencement certificates and occupation certificates which are submitted by promoters.<\/strong><\/span><\/p>\n Circular dated 23.05.2023 issued by Goa Real Estate Regulatory Authority regarding Anti money \u2013 laundering, counterfeiting the financing of terrorism , and combating proliferation financing guidelines for Real Estate Agents, 2023.<\/strong><\/span><\/p>\n Order dated 24.05.2023 issued by Rajasthan Real Estate Regulatory Authority regarding documents required for acceptance of completion certificate. <\/strong><\/span><\/p>\n Order dated 29.05.2023 issued by Maharashtra Real Estate Regulatory Authority regarding display of QR code in promotions\/ advertisements material relating to Real Estate projects registered with MahaRERA.<\/strong><\/span><\/p>\n Whether a Section 9 petition under IBC is maintainable on an award which is under challenge under Section 34 of Arbitration & Conciliation Act, 1996?<\/strong><\/span><\/p>\n BRIEF FACTS <\/u><\/strong><\/p>\n An appeal was filed by the M\/s. KK Ropeways Ltd. (\u201cAppellant<\/strong>\u201d) before the National Company Law Appellate Tribunal, Chennai Bench (\u201cNCLAT\u201d)<\/strong> challenging the impugned order dated 27.04.2021 passed by the National Company Law Tribunal, Bengaluru Bench (\u201cAdjudicating Authority<\/strong>\u201d) whereby the Adjudicating Authority had dismissed the application filed by the Appellant under Section 9 of the Insolvency and Bankruptcy Code, 2016 (\u201cIBC <\/strong>\u201d)<\/p>\n On 29.11.2018 an arbitral award was passed by the Arbitrator under Arbitration and Conciliation Act, 1996, in the arbitration proceedings between the Appellant and M\/s. Billion Smiles Hospitality Pvt. Ltd. (\u201cCorporate Debtor<\/strong>\u201d) in favor of the Appellant for recovery of Rs. 26,33,022\/- along with interest @15% per annum from the Corporate Debtor.\u00a0 The date from which such debt fell due was 19.01.2018. The arbitral award was passed on account of non-payment of the rental dues as per the lease agreement by the Corporate Debtor to the Appellant.<\/p>\n Being aggrieved by the arbitral award, the Corporate Debtor had filed an appeal under Section 34 of Arbitration & Conciliation Act, 1996 before High Court of Delhi assailing the arbitral award, during the pendency of the Section 9 IBC proceedings before the Adjudicating Authority.<\/p>\n QUESTION OF LAW<\/u><\/strong><\/p>\n Whether the petition under Section 9 of IBC filed by the Appellant is maintainable on an arbitral award which is under challenge u\/s 34 of Arbitration and Conciliation Act, 1996?<\/p>\n OBSERVATIONS BY NCLAT <\/u><\/strong><\/p>\n The Hon\u2019ble NCLAT observed that as per the provisions of IBC \u2018dispute\u2019 means and includes raising a dispute before a court of law or an arbitral tribunal before the receipt of the demand notice under Section 8 of IBC. The dispute shall truly exist and should not be spurious, imaginary and hypothetical. Further, it was observed that the Appellant had secured an ex-parte award in its favour against which the Corporate Debtor has filed an appeal under Section 34 of the Arbitration and Conciliation Act, 1996.<\/p>\n In the present case, the arbitral award was based on the rental dispute and when the appeal was filed by the Corporate Debtor against the arbitral award, the operational debt is considered to be under dispute. The Hon\u2019ble Tribunal further opined that so long as the arbitration award was challenged, the operational debt in the instant appeal is considered to be under dispute and hence, the arbitration and insolvency proceedings cannot go on together.<\/p>\n CONCLUSION<\/u><\/strong><\/p>\n The Hon\u2019ble NCLAT came to the conclusion that the view arrived by the Adjudicating Authority while dismissing the Section 9 petition under IBC for recovery of the sum awarded in the arbitration proceeding is free from any errors. Hence, the Hon\u2019ble NCLAT dismissed the instant appeal.<\/p>\n Case referred \u2013 M\/s. KK Ropeways Ltd. v. M\/s. Billion Smiles Hospitality Pvt. Ltd. [Comp. App (AT) (CH) (INS.) No. 246 of 2021]. <\/strong><\/p>\n NO CONVICTION CAN BE MADE IN A TRIAL IN THE APPELLATE COURT WITHOUT CALLING ON RECORDS OF THE CASE FROM THE TRIAL COURT<\/strong><\/span><\/p>\n CASE ANALYSIS: JITENDRA KUMAR RODE V. UNION OF INDIA [PRONOUNCED BY THE HON\u2019BLE SUPREME COURT OF INDIA IN 2023 SCC OnLine SC 485]<\/strong><\/p>\n In the captioned appeal in the Hon\u2019ble Supreme Court against a judgement of the Hon\u2019ble High Court of Allahabad High Court, the Division Bench consisting of Justice Krishna Murari and Justice Sanjay Kaul, while upholding the conviction of an accused under Prevention of Corruption Act, 1988 laid down that the court of appeal should mandatorily call on record for the case of respective trial court which should be an obligation as well as duty laid under interpretation of Section 385 of Code of Criminal Procedure, 1973.<\/p>\n Brief Background: <\/em><\/strong><\/p>\n In the current case, the trial court had convicted the accused way back in 1999 and sentenced him to a rigorous imprisonment of one year with fine of \u20b9500 under Section 7 of Prevention of Corruption Act and that of 2 years conviction and fine of \u20b9500 under Section 13(2) of the abovementioned act.<\/p>\n This was challenged by the appellant in Allahabad court of appeal criticizing the trial court\u2019s order of conviction against him. The Hon\u2019ble High Court of Allahabad summoned the trial court to furnish on record the case of the Appellant and the explanation as to how they took the decision against the Appellant, to which no reply was received from their end.<\/p>\n The Hon\u2019ble High Court of Allahabad concluded that the trial court lost all records against the appellant being non-traceable and the information sent is non-relevant to the case of the appellant. The trial court was found non-compliant with the rules as well as the records they served were not endorsed by the Central Bureau of Investigation. However, the Hon\u2019ble High Court of Allahabad High Court convicted the appellant with the same charges, despite the gross misconduct of the trial court.<\/p>\n Observation and Decision of the Supreme Court: <\/em><\/strong><\/p>\n The Apex court noted that despite instructions by the Hon\u2019ble High Court, documents such as the witness statements, statements under Section 313 CrPC were neither available nor were reconstructed. Therefore, upholding conviction in the absence of such documents cannot be said to be in consonance with due process of law and fairness. The onus to produce the missing record was put on the Appellant which is an erroneous decision taken by the Hon\u2019ble High Court. It is the right of the appellant to have the documents perused on record by the trial court.<\/p>\n The Apex court laid down in this judgment that it is not the duty of the court of appeal to hinge on the decision of the lower court, but there should be a proper scrutiny of the process of law by calling on record the documents and the arguments advanced should be observed and analyzed before making a conclusion.<\/p>\n The Hon\u2019ble Supreme Court further held that protection of the rights under Article 21 entails the right to life and liberty and there should be protection of liberty from any restriction. Therefore, in the absence of fair trial and legal procedure which includes the opportunity for the person filing an appeal to question the order of the lower court and the same can only be done when the record is available with the Court of Appeal.<\/p>\n Concluding the judgment, the Apex court held that there is no straitjacket formula to the procedure of court, but the non-compliance of the mandate leads to the violation of Article 21 of the Constitution of India which is erroneous in the eyes of law and should not be done.<\/p>\n \u201cVivad Se Vishwas II\u201d: Government Issues Scheme to Settle Contractual Disputes <\/strong><\/span><\/p>\n Objective of the Scheme<\/strong><\/p>\n Details:<\/strong><\/p>\n Procedure:<\/strong><\/p>\nCorporate Brief<\/span><\/span><\/strong><\/span><\/h4>\n
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RERA Brief<\/strong><\/span><\/h4>\n
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NCLT Brief<\/strong><\/span><\/h4>\n
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Litigation Brief<\/strong>\u00a0<\/strong><\/span><\/h4>\n
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\u00a0<\/strong>Corporate Brief<\/em><\/strong><\/span><\/h3>\n
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Real Estate Brief<\/em><\/strong><\/span><\/h3>\n
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NCLT Brief<\/em><\/strong><\/span><\/h3>\n
Litigation Brief <\/em><\/strong><\/span><\/h3>\n
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