‘TO SUCCEED IN THE OTHER TRADES, CAPACITY MUST BE SHOWN; IN THE LAW, CONCEALMENT OF IT WILL DO’.
MARK TWAIN
ALTERNATIVE DISPUTE RESOLUTION
- Haryana Space Application Centre (HARSAC) & Anr v. M/S Pan India Consultants Pvt Ltd
Section 12(5) of Arbitration Act is a non-derogable and mandatory provision-20 January 2021
In a recent case, the Supreme Court (SC) has observed that Section 12(5) of Arbitration and Conciliation Act r/w the Seventh Schedule, concerning ineligibility of a person to be appointed as an Arbitrator, is a non-derogable and mandatory provision of the Act. While considering the case, the Bench observed that the Principal Secretary’s appointment, as the arbitrator of HARSA, was invalid u/s 12(5) of Arbitration and Conciliation Act, r/w the Seventh Schedule. Section 12(5) provides that any person or counsel who has an existing relationship with the parties shall be ineligible to be appointed as an arbitrator. Hon’ble Court exercised its power u/s 29A(6) of the Arbitration Act, and appointed former Supreme Court judge Kurian Joseph as substitute arbitrator, for the case, and directed him to pass an award within six months.
The Order can be accessed at:
https://www.livelaw.in/pdf_upload/haryana-space-application-centre-vs-pan-india-consultants-pvt-ltd-ll-2021-sc-33-387925.pdf - Knowledge Podium Systems Pvt Ltd v. S M Professional Services Pvt Ltd
Send dispute to Arbitration if there is a doubt regarding existence of valid Arbitration Agreement -25 January 2021
Parties entered into two lease Agreements. In the old lease Agreement, there was an arbitration clause and in the new lease agreement, there was no Arbitration clause. The Court opined that it can only not refer a dispute for Arbitration if there is no valid Arbitration Agreement between the two parties. The Court, further, stated that it is best if the arbitral tribunal decides on the question of the existence of a valid Arbitration Agreement and that when there is a doubt regarding the validity of an Arbitration Agreement, the Court must send the matter to the arbitral tribunal for further consideration.
The Judgement can be accessed at:
https://images.assettype.com/barandbench/2021-01/d8cbeab1-f244-4439-871b-9c261d503714/Knowledge_Podium_Systems_vs_SM_Professional_Services.pdf
COMPETITION & UNFAIR TRADE PRACTICE
- Gurgaon Institutional Welfare Association v. Haryana Urban Development Authority
Huda an enterprise, functions not sovereign-19 January 2021
Hearing a plea against Haryana Urban Development Authority (Huda) — now called Haryana Shehri Vikas Pradhikaran — on restricting right to transfer the title of plot and building constructed on it without its prior permission, the Competition Commission of India (CCI) has held that all functions of the authority are not of “sovereign” nature and the authority is undoubtedly “an enterprise.” The order has been passed by Ashok Kumar Gupta, chairman and its members Sangeeta Verma and Bhagwati Singh Bishnoi of the CCI while hearing a plea filed by Gurugram Institutional Welfare Association, a registered group of allottees of institutional plots. CCI has rejected the objection of Huda to its jurisdiction in entertaining a matter against it. Huda had argued that while exercising its sovereign functions and administering the directions and policies of the state Government, it cannot be held to be an ‘enterprise’ under the provisions of Section 2(h) of the Competition Act, 2002, and further that Huda being a statutory authority is not amenable to the jurisdiction of the commission. “Having examined the objections raised by Huda on the touchstone of various pronouncements as above, the commission unhesitatingly holds that all statutory or regulatory functions performed by Huda, within the mandate of the Huda Act, cannot be classified as sovereign functions. The exception claimed by Huda is not ipse dixit, and requires a closer examination on a case-by-case basis. Given the facts and circumstances of the function of allotment of institutional plots as regards which the information has been filed before the commission, Huda is undoubtedly an enterprise,” the CCI has held. The commission, however, has not found Huda guilty of abuse of dominance with regard to the allotment of industrial plots in urban estates in Haryana and has also upheld its powers to not permit transfer of the institutional plots in public interest and as a matter of policy to prevent unjust enrichment and profiteering by allottees.
The Order can be accessed at:
https://images.assettype.com/barandbench/2021-01/047a2079-d229-4ec5-b94c-494a58a38324/CCI_order_HUDA.pdf - Competition Commission of India (CCI) approves acquisition of a minority stake in Aditya Birla Fashion and Retail Limited (ABFRL) by Flipkart Investments Private Limited (FIPL)-21 January 2021
The Competition Commission of India (CCI) approves acquisition of a minority stake in Aditya Birla Fashion and Retail Limited (ABFRL) by Flipkart Investments Private Limited (FIPL). FIPL is a newly incorporated company and is a wholly owned subsidiary of Flipkart Private Limited (FPL). FPL belongs to the Walmart Group, which comprises Walmart Inc. (Walmart) and its affiliates. The Walmart Group undertakes various business activities in India, such as wholesale trading of products, providing e-commerce marketplace services and digital payments services.
The Release can be accessed at:
https://www.pib.gov.in/PressReleasePage.aspx?PRID=1690701 - Pramod Mahajan v. ICICI Bank
Competition Commission dismisses complaint against ICICI Bank-27 January 2021
The Competition Commission of India (CCI) has dismissed a complaint of abuse of dominant position made against ICICI Bank with respect to the home loan segment. It was alleged that there were one-sided clauses in loan Agreement and that housing finance banks were indulging in cartelisation by way of having same clauses. Regarding the alleged cartelisation against all banks providing home loans, the CCI said the complainant has not identified any bank or entity that might be involved in cartelisation with ICICI Bank or provided any material which shows that the inclusion of similar clause, if so, by a bank/ entity other than ICICI Bank. Finding no “prima facie case”, the watchdog decided to close the matter.
The Order can be accessed at:
https://www.cci.gov.in/sites/default/files/52-of-2020.pdf - Automotive Tyres Manufacturers Association v. General Insurance Corporation of India
Competition Commission rejects complaint against General Insurance Corporation of India-27 January 2021
The Competition Commission of India (CCI) has rejected multiple allegations of unfair business practices made against General Insurance Corporation of India (GIC Re), including those relating to premiums. The CCI considered ”market for provision of reinsurance services in India” as the relevant one for assessing the allegations. One of the primary grievances in the complaint filed by the Automotive Tyres Manufacturers Association was about alleged increase in reinsurance premium charged to general insurance companies. The CCI said that the informant has merely alleged increase in premium rates by GIC Re as “excessive pricing” without providing any basis. “Setting of premium rates for reinsurance polices would be based on many factors and without proper evidence being furnished before the Commission, the allegations of ”excessive pricing/ unfair pricing” cannot be analysed. Therefore, no case is made out against GIC Re on this count,” it said. The CCI also rejected allegations that the company was indulging in resale price maintenance practice, saying it appears that the insurance companies have commercial freedom to price their policy as they deem fit according to the market conditions and GIC Re has not placed any restriction. “Accordingly, the Commission is of the view that allegations of resale price maintenance on the part of the OP, in terms of Section 3(4)(e) of the Act, are not established,” the order noted. Another allegation was that GIC Re recently directed insurance companies to not cover any direct or indirect losses caused by reasons related to contagious disease like COVID-19. However, GIC Re submitted that exclusion of any direct or indirect loss by infectious or contagious disease existed even prior to the onset of the COVID-19 pandemic. According to the regulator, it appears that the position pre and post COVID-19 pandemic remains unchanged as far as the exclusion of contagious diseases is concerned and the insurance companies are entirely free to offer any kind of insurance to the policyholders. “Therefore, any decision by GIC Re in this regard cannot be termed as ”refusal to deal” in terms of Section 3(4)(d) of the Act,” it noted. As per the CCI, the informant has failed to adduce any material in support of its allegation that insurance companies are using the GIC Re as a platform to exchange sensitive information, including information on prices which may facilitate price fixing or GIC Re is otherwise facilitating any price fixing between the insurance companies. “GIC has categorically stated that the insurance companies have commercial freedom to price their policy as they deem fit and GIC has not placed any restriction on them in terms of price or coverage of risk. “Therefore, the allegation of cartel arrangement between GIC Re and insurance companies is also not made out,” CCI said.
The Order can be accessed at:
https://www.cci.gov.in/sites/default/files/21-of-2020.pdf - Baglekar Akash Kumar v. Google LLC
Competition Commission dismisses complaint against Google-29 January 2021
The Competition Commission of India (CCI) has rejected a complaint against internet major Google with respect to Google Meet, saying that consumers are at free will to use either Meet or any other app for video conferencing. The complaint was filed by an individual against Google LLC and Google India Digital Services. It was alleged that Google is a dominant player in the internet-related services and products, and that it has integrated the Meet app into the Gmail app which amounts to abuse of dominant position. To assess the complaint, the regulator considered the ‘market for providing email services in India’ and the ‘market for providing specialised video conferencing services in India’ as the relevant ones. The CCI said that in relation to the allegations of leveraging, the users of Gmail are not forced to necessarily use Google Meet. Also, there does not appear to be any adverse consequences on the users of Gmail for not using Google Meet, such as withdrawal of Gmail or any of its functionalities or other services that are so far being provided by Google. A Gmail user at his/ her ‘free will’ can use any of the competing VC apps, it noted. According to the order, anyone with a Google Account, not necessarily a Gmail user, can create an online meeting using Google Meet. “Further, for creating a Google account, the user need not be a user of Gmail. He/ she can use email ID created on any other platform for creating a Google account. Thus, Google Meet is available as an independent app outside the Gmail ecosystem also,” the regulator said. Rejecting the complaint, CCI said that even though Meet tab has been incorporated in the Gmail app, Gmail does not coerce users to use Meet exclusively as submitted by Google and the consumers are also at freewill to use either Meet or any other VC app for video conferencing. Google had submitted to the regulator that Gmail is not dominant in emailing and direct messaging in India, and it faces strong competition from a variety of messaging services, many of which have a comparable or superior position to Gmail.
The Order can be accessed at:
https://www.cci.gov.in/sites/default/files/39-of-2020.pdf
CORPORATE
- Kalinga Allied Industries India Pvt Ltd v. Hindustan Coils Ltd and Others
Delayed bid cannot be considered under Insolvency and Bankruptcy Code (IBC) even if better-11 January 2021
The National Company Law Appellate Tribunal (NCLAT) has held that any resolution plan proposed by a bidder who had not participated in the corporate insolvency resolution process (CIRP) cannot be considered by the NCLT, even if the plan offers a better deal. “We are of the view that when the application for approval of resolution plan is pending before the adjudicating authority, at that time the adjudicating authority cannot entertain an application of a person who has not participated in CIRP even when such person is ready to pay more amount in comparison to the successful resolution applicant,” said the NCLAT order.
The Judgement can be accessed at:
https://nclat.nic.in/Useradmin/upload/1631261485ffc3925d4832.pdf - Harkirat Singh Bedi v. The Oriental Bank of Commerce & Anr and Others
Resolution Professional cannot decide legality or illegality of resolution Applicant’s status as wilful defaulter-12 January 2021
The National Company Law Appellate Tribunal (NCLAT) has held that a Resolution Professional (RP) under the Insolvency & Bankruptcy Code cannot go into the issue of legality or illegality of a resolution applicant’s status as a willful defaulter when the same is already pending before the High Court.
The Judgement can be accessed at:
https://nclat.nic.in/Useradmin/upload/16636752505ffd75d81a7e7.pdf - Manish Kumar v. Union of India and Another
Supreme Court (SC) upholds protection for new owners, threshold for Homebuyers-19 January 2021
The Supreme Court (SC) has held that the successful bidders for a corporate debtor under the Insolvency and Bankruptcy Code (IBC) would be immune from any investigations being conducted either by any investigating agencies such as the Enforcement Directorate (ED) or other statutory bodies such as Securities and Exchange Board of India (SEBI). In its judgment, the apex court, while upholding the validity of Section 32 A of IBC, said it was important for the IBC to attract bidders who would offer reasonable and fair value for the corporate debtor to ensure the timely completion of corporate insolvency resolution process (CIRP). Such bidders, however, must also be granted protection from any misdeeds of the past since they had nothing to do with it. Such protection, the court said, must also extend to the assets of a corporate debtor, which form a crucial attraction for potential bidders and helps them in assessing and placing a fair bid for the company, which, in turn, will help banks clean up their books of bad loans. “The extinguishment of the criminal liability of the corporate debtor is apparently important to the new management to make a clean break with the past and start on a clean slate. As far as protection afforded to the property is concerned there is clearly a rationale behind it,” it said. The protection to successful bidders and the assets of a corporate debtor are provided by the rules under Section 32A of the IBC. The apex court has, however, also said that such immunity would be applicable only if there is an approved resolution plan, and a change in the management control of the corporate debtor. “The new management cannot be the disguised avatar of the old management. It cannot even be the related party of the corporate debtor. The new management cannot be the subject matter of an investigation which has resulted in material showing abetment or conspiracy for the commission of the offence and the report or complaint filed thereto,” the apex court held.
The Judgement can be accessed at:
https://www.livelaw.in/pdf_upload/ibc-amendment-manish-kumar-v-union-of-indiasc-387697.pdf - Silvassa Cement Products Pvt Ltd v. Noor India Buildcon Pvt Ltd
Dismissal of Section 9 Insolvency and Bankruptcy Code (IBC) application on technical defect such as incompleteness not warranted-22 January 2021
The National Company Law Appellate Tribunal (NCLAT) has held that the dismissal of an application under Section 9 Insolvency & Bankruptcy Code as being non-maintainable for a technical defect such as incomplete Form 5 is not warranted.
The Order can be accessed at:
https://nclat.nic.in/Useradmin/upload/1479307955600ab1a4081e6.pdf - Promila Taneja v. Surendri Design Pvt Ltd
Whether Non-payment of rent would qualify as an operational debt under Insolvency and Bankruptcy Code (IBC)? Supreme Court (SC) issues notice
Whether the non-payment of rent would qualify as an operational debt within the meaning of Section 5(21) of the Insolvency and Bankruptcy Code (IBC) 2016? The Supreme Court (SC) issued notice in an appeal filed against an order passed by National Company Law Appellate Tribunal. In this case, the landlord filed the Application under Section 9 of Insolvency and Bankruptcy Code, 2016 which was dismissed by the Adjudicating Authority on ground that dues in the nature of rent of immovable property do not fall under the head of Operational Debt as defined under Section 5 (21) of IBC. The NCLAT upheld this order of the Adjudicating Authority.
https://www.livelaw.in/pdf_upload/promila-taneja-versus-surendri-design-pvt-388341.pdf
MEDIA & INFORMATION TECHNOLOGY
- Himanshu Kishan Mehra, Ali Abbas Zafar and Gaurav Solanki v. The State of Maharashtra
Bombay High Court (HC) grants three weeks transit pre-arrest bail to Tandav makers-20 January 2021
The Bombay High Court (HC) has granted a three-week transit pre-arrest bail to Tandav director Ali Abbas Zafar and producer Himanshu Krishna Mehra and writer Gaurav Solanki. Similar relief was also granted to Aparna Purohit, head of content, Amazon Prime. The four have been booked in a first information report (FIR) filed by the Lucknow Police based on a complaint by senior sub-inspector Amar Nath Yadav who alleged that the web series portrays Hindu Gods in a bad light.
The Order can be accessed at:
https://images.assettype.com/barandbench/2021-01/ade4fd83-e3bc-4bf0-9d3c-4c344b3806e9/Himanshu_Mehra_v__State_of_Maharashtra.pdf - St Xavier’s Education Trust v. Leena Dhankar & Ors
Delhi High Court (HC) stays book publication of ‘The Ryan School Murder’-22 January 2021
On January 22, 2021, the Delhi High Court (HC) gave an order of restrain on the scheduled book release of ‘The Ryan School Murder,’ which was going to be published on January 23, 2021, by the publication houses of Juggernaut and Harper Collins.
The Order can be accessed at:
https://www.livelaw.in/pdf_upload/delhi-high-court-stays-publication-of-book-on-2017-murder-mystery-of-a-student-387987.pdf - ‘X’ v. Union of India and Ors
Delhi High Court (HC) seeks Google’s advice on removal of offensive posts-22 January 2021
The Delhi High Court (HC) has sought the assistance of Google to examine the possibility of making any offensive content on the Internet as “unsearchable”. Noting that doing so can prove to be of the best methodologies to implement court orders, the HC sought the search engine’s response on the feasibility of the suggestion. The court was hearing a plea by a law student from Bengaluru who alleged that her photographs were mischievously and illegally lifted from social media websites such as Facebook and Instagram and uploaded on pornographic websites, along with derogatory captions.
The Order can be accessed at:
https://images.assettype.com/barandbench/2021-01/cd7554d0-1f79-47ee-8003-04dc9e94162b/X_vs_UOI___Jan_22.pdf - Anivar A Aravind v. Ministry of Home Affairs and Others
Karnataka High Court (HC) bars Centre from sharing Aarogya Setu app data without user consent-25 January 2021
The Karnataka High Court (HC) has issued orders restraining the Government of India and other agencies from sharing data of Aarogya Setu application without obtaining informed consent of its users.
The Order can be accessed at:
https://www.livelaw.in/pdf_upload/wp-7483-2020-388135.pdf
