GOOD JUDGMENT COMES FROM EXPERIENCE. AND WHERE DOES EXPERIENCE COME FROM? EXPERIENCE COMES FROM BAD JUDGMENT.
MARK TWAIN
ALTERNATIVE DISPUTE RESOLUTION
- Hindustan Petroleum Corporation Ltd v. Banu Constructions and A M Atri
Arbitration Court cannot indulge in fact-finding exercise while deciding application for setting aside Arbitral Award-9 February 2021
The High Court (HC) bench clarified that in a regular appeal it is open to the Court to embark on a fact-finding exercise, to re-read and re-appraise the evidence, to interpret the documents afresh, and to do all things de novo that the Court of original jurisdiction could have done. It added that such expansive authority is not available to Arbitration Court while dealing with a Petition for setting aside an award.
The Judgement can be accessed at:
https://www.livelaw.in/pdf_upload/madars-hc-slams-arbitration-court-389769.pdf
COMPETITION & UNFAIR TRADE PRACTICE
- Competition Commission of India (CCI) trashes alleged cartelisation case among domestic airlines-22 February 2021
The Competition Commission of India (CCI) has dismissed a complaint pertaining to alleged cartelization among various domestic airlines. The case had emanated upon receipt of a letter from the Lok Sabha secretariat in January 2014 with a request to examine whether there is any evidence of cartelization in the airlines sector. The data was analyzed for the sample reference period from April 2012 to March 2014 in respect of Jet Airways (including JetLite), Indigo, SpiceJet, GoAir and Air India for certain routes. In September 2016, the CCI had directed the Director General (DG), its investigation arm, to cause an investigation into the matter on “prima facie” finding that the airlines- Jet Airways (including Jet Lite), Indigo, Spice Jet, Go Air and Air India-were exhibiting characteristics of anti-competitive conduct. The analysis of the four major routes indicated that airlines were maintaining some degree of stability in their market shares in both lean and peak seasons during the examined period. Further, almost similar cost structure of the airlines also appeared to facilitate collusion on price to be charged in contrast to differentiated cost structure, where low-cost firms usually compete with high-cost firms on prices to capture greater market share. Also, it was observed that despite differences in base fares and airlines fuel surcharge, the end fares charged by all the airlines for tickets, were almost similar. The DG had analysed the market share of five airlines on four sectors during the reference period, as well as their air fare and its determination practices in order to detect any sign of stability or parallelism, or any possibility of communication between the airlines to fix prices. However, as brought out by the investigation, no such pattern of stability or parallelism was noticed between the airlines, rather, a significant variance was seen in the market shares of the airlines, CCI said. The DG had said that price parallelism has become the natural outcome, but it cannot be said to be the result of any agreement or action in concert. “The DG concluded that in view of the analysis done with respect to daily bucket wise movement of price, relationship between price and capacity, and in the absence of any evidence suggestive of meeting of minds, the investigation could not find any contravention of the provisions of the Section 3(1) of the Act read with Section 3(3) thereof against the airlines,” as per the order. Further, the Commission notes that a parallel conduct is actionable under the Competition Act only when the adaptation to the market conditions is not done independently and is attributable to information exchanged between the competitors or through some other collusive conduct, the object of which is to influence the market. In the present case, no exchange of communication between the airlines could be established, CCI noted. “There is no evidence on record to establish cartel amongst airlines during the period April 2012 – March 2014 and having examined the material on record, the Commission finds no reason to differ with the findings recorded by the DG,” CCI concluded.
The Order can be accessed at:
https://www.cci.gov.in/sites/default/files/03-of-2015.pdf - Competition Commission of India (CCI) approves acquisition of API Holdings Private Limited equity shareholding by CDPQ Private Equity Asia Pte. Ltd.-23 February 2021
The Competition Commission of India (CCI) has approved acquisition by CDPQ Private Equity Asia Pte. Ltd. (‘CDPQ/Acquirer’) of equity shareholding of API Holdings Private Limited (‘API Holdings/Target’) under Section 31(1) of the Competition Act, 2002. The combination envisages an acquisition of approximately 2% shareholding in the Target by the Acquirer along with certain additional rights.
The Release can be accessed at:
https://www.pib.gov.in/PressReleasePage.aspx?PRID=1700108 - Competition Commission of India (CCI) approves acquisition of Tata Communications Limited by Panatone Finvest Limited-23 February 2021
The Competition Commission of India (CCI) has approved acquisition by Panatone Finvest Limited (“Acquirer”) of Tata Communications Limited (“TCL”) under Section 31(1) of the Competition Act, 2002. The Proposed Combination envisages the proposed acquisition of such shareholding not exceeding 26.12% by the Acquirer in the Target (“Proposed Combination”). As a result of the Proposed Combination, the Acquirer Group / Tata Group would increase its shareholding from 48.87% to such shareholding not exceeding 74.99%.
The Release can be accessed at:
https://www.pib.gov.in/PressReleasePage.aspx?PRID=1700106 - Competition Commission of India (CCI) approves various acquisition proposals by PGP Glass Private Limited-23 February 2021
The Competition Commission of India (CCI) has approved acquisition by PGP Glass Private Limited (Acquirer) of (i) the business of manufacture and sale of glass packaging and glass decoration of Piramal Glass Private Limited (PGPL); (ii) shareholding of PGPL in its certain subsidiaries engaged in the business of manufacture and / or sale of glass packaging and glass decoration; (iii) certain shareholding of Vivid Glass Trading FZCO (Vivid Trading); and (iv) certain business divisions of Ansapack Private Limited (Ansapack) under Section 31(1) of the Competition Act, 2002. The Acquirer has been set up recently for the purpose of the Proposed Combination. It is an affiliate of BCP Topco V Pte. Ltd., which is an affiliate of funds advised and / or managed by the affiliates of Blackstone.
The Release can be accessed at:
https://www.pib.gov.in/PressReleasePage.aspx?PRID=1700104 - Competition Commission of India (CCI) approves proposed merger of NAM Estates and Embassy One Commercial Property Developments into Indiabulls Real Estate-25 February 2021
The Competition Commission of India (CCI) has approved proposed merger of NAM Estates and Embassy One Commercial Property Developments into Indiabulls Real Estate. The proposed combination envisages merger of NAM Estates Private Limited (NAM Estate) and Embassy One Commercial Property Developments Private Limited (EOCPDPL) into Indiabulls Real Estate Limited (IBREL). The proposed combination will be carried out through a series of inter-connected steps viz.:
(i) certain identified assets, securities and / or investments of certain entities of the Embassy group will be transferred to Embassy Group entity(ies);
(ii) certain third party investors will swap their shareholding in these identified assets, securities and / or investments of certain entities of the Embassy group, for shareholding in NAM Estates and EOCPDPL;
(iii) the restructured NAM Estates and EOCPDPL will merge with and into IBREL, and IBREL will issue shares to all existing shareholders of NAM Estates and EOCPDPL.
The Release can be accessed at:
https://www.pib.gov.in/PressReleasePage.aspx?PRID=1700818 - Competition Commission of India (CCI) approves proposed combination in acquisition of stake in Technip Energies B.V. by Bpifrance Participations S.A-25 February 2021
The Competition Commission of India (CCI) has approved the proposed combination involving acquisition of stake in Technip Energies B.V. by Bpifrance Participations S.A. Pursuant to the Share Purchase Agreement dated 7th January 2021 between the TechnipFMC plc (Seller) and the Bpifrance Participations S.A. (Acquirer), the Acquirer will acquire a minimum of 11.82% of Technip Energies B.V.’s (Target) outstanding shares and a maximum of 17.25% of the Target’s outstanding shares (Proposed Combination). As a result of the Proposed Combination, the Acquirer will increase its shareholding in the Target to a stake of 14.07-20%.
The Release can be accessed at:
https://www.pib.gov.in/PressReleasePage.aspx?PRID=1700815
CORPORATE
- National Aviators’ Guild (NAG) v. Ashish Chhawchharia & Committee of Creditors of Jet Airways (India) Ltd
Jet Airways’ resolution: National Company Law Tribunal (NCLT) rejects staff unions’ plea-22 February 2021
The Jet Airways employee unions’ plea to review the resolution plan submitted by Kalrock-Jalan consortium was rejected by the Mumbai Bench of National Company Law Tribunal (NCLT). As many as five employee unions had appealed to the insolvency courts to see the resolution plan. “The respondent (resolution professional managing Jet Airways) is duty-bound to maintain and ensure confidentiality of the resolution plan as provided under the Insolvency and Bankruptcy Board of India,” the court said in its written order The airline was temporarily grounded in April 2019. Later that year, it was taken to the NCLT by its lenders over unpaid dues. The CoC and the Resolution Professional held at least four rounds of inviting interest for the debt-strapped airline. As many as five employee unions namely, National Aviators Guild (NAG); Engineers Union of Jet Airways (JAMEWA), Bhartiya Kamgar Sena (BKS), Jet Airways Cabin Crew Association, and All India Jet Airways Officers and Staff Association submitted a plea to the NCLT stating that they were unaware if the resolution plan protects their interests. The two-judge Bench in their order said the Covid-19 pandemic has led to a lot of stress on the aviation industry. “The delay in the approval of the plan would result in mounting CIRP costs and may ultimately prove to be detrimental to the interest of all stakeholders, including the applicants. The applications, therefore, deserve to be dismissed without cost.”
The Order can be accessed at: ReadMore - Anil Tayal, Resolution Professional for M/s Horizon Buildcon Pvt Ltd v. Committee of Creditors of M/s Horizon Buildcon Pvt Ltd
Period of Judicial Intervention to be excluded while counting and computing the period of Corporate Insolvency Resolution Process (CIRP) -23 February 2021
The National Company Law Appellate Tribunal (NCLAT) New Delhi has ordered that period of judicial intervention is justifiably required to be excluded while counting and computing the period of Corporate Debtor undergoing Corporate Insolvency Resolution Process (CIRP) period.
The Order can be accessed at:
https://nclat.nic.in/Useradmin/upload/11579547236034f699219c3.pdf - Asha John Divianathan v. Vikram Malhotra & Ors
Can foreigners transfer/dispose of immovable property situated in India by sale or mortgage without Reserve Bank of India (RBI) prior permission? -26 February 2021
The 3-judge bench of AM Khanwilkar, Indu Malhotra and Ajay Rastogi has held that the condition predicated in Section 31 of the Foreign Exchange Regulation Act, 1973 of obtaining “previous” general or special permission of the Reserve Bank of India (RBI) for transfer or disposal of immovable property situated in India by sale or mortgage by a person, who is not a citizen of India, is mandatory. “Until such permission is accorded, in law, the transfer cannot be given effect to; and for contravening with that requirement, the concerned person may be visited with penalty under Section 50 and other consequences provided for in the 1973 Act.” The important question to be decided before the Court was whether transaction specified in Section 31 of the 1973 Act entered into in contravention of that provision is void or is only voidable and it can be voided at whose instance. “Merely because no provision in the Act makes the transaction void or says that no title in the property passes to the purchaser in case there is contravention of the provisions of Section 31, will be of no avail. That does not validate the transfer referred to in Section 31, which is not backed by “previous” permission of the RBI. In light of the general policy that foreigners should not be permitted/allowed to deal with real estate in India; the peremptory condition of seeking previous permission of the RBI before engaging in transactions specified in Section 31 of the 1973 Act and the consequences of penalty in case of contravention, the transfer of immovable property situated in India by a person, who is not a citizen of India, without previous permission of the RBI must be regarded as unenforceable and by implication a prohibited act. That can be avoided by the RBI and also by anyone who is affected directly or indirectly by such a transaction. There is no reason to deny remedy to a person, who is directly or indirectly affected by such a transaction. He can set up challenge thereto by direct action or even by way of collateral or indirect challenge,” the Court said.
The Judgement can be accessed at:
https://main.sci.gov.in/supremecourt/2009/33958/33958_2009_35_1501_26504_Judgement_26-Feb-2021.pdf
INFORMATION TECHNOLOGY
- Amarjit Samuel Datt v. U O I Through Secretary Department of Telecomm.,New Delhi & Ors
Allahabad High Court (HC) dismisses plea seeking removal of mobile towers for maintaining public health-8 February 2021
The Allahabad High Court (HC) recently dismissed a writ Petition seeking removal of a mobile tower from a residential area on the ground that it has deleterious effects on human health. Relying on the decision of a Division Bench in Asha Mishra v. State of UP & Ors.;2017 (1) UPLBEC 261, the Court held, “Such matters must be left to the mature wisdom of the Government or the implementing agency. It is their forte. In such cases, if the situation demands, the courts should take only a detached decision based on the pattern of the well settled principles of administrative law.”
The Order can be accessed at:
mytemplet (livelaw.in)
PROPERTY
- Khushi Ram & Ors v. Nawal Singh & Ors
Consent decree based on admission recognizing pre-existing rights under family settlement does not require registration: Supreme Court (SC)
The Supreme Court (SC) held that a consent decree based on admission recognising pre existing rights under Family settlement does not require registration under the Registration Act.
khushi-ram-vs-nawal-singh-ll-2021-sc-105-389581.pdf (livelaw.in)
ENVIRONMENT
- Sridevi Datla v. Union Of India
Supreme Court (SC) restores appeal before National Green Tribunal (NGT) against environmental clearance granted to Vishakapatnam Greenfield International Airport
The Supreme Court (SC), on Monday, set aside an order of National Green Tribunal (NGT) which dismissed an appeal filed against the grant of environmental clearance for construction of the Greenfield International Airport, Bhogapuram, Vishakapatnam. The NGT, to dismiss the appeal filed by SrideviDatla, had refused to condone the delay. The delay was sought to be condoned on the ground that the clearance and related documents were voluminous and the matter required some technical expertise, requiring the papers to be forwarded to experts and lawyers in Delhi, and the inter se communication delay.
sridevi-datla-vs-union-of-india-ll-2021-sc-127-389969.pdf (livelaw.in)
