Corporate Law Rulings of 2023 | A Review of Top 25 Case Laws from Taxmann

Exploring the dynamic landscape of corporate law, this compilation brings forth the top 25 landmark cases that have significantly shaped and redefined the legal framework governing businesses and corporate entities. From pivotal decisions on the legitimacy of governmental actions to nuanced interpretations of liability, fraud, and jurisdiction, these cases represent a mosaic of legal precedents in the corporate sphere.

The list delves into diverse facets of corporate law, spanning from the Supreme Court’s validation of the abrogation of Article 370 without the recommendations of the J&K Constituent Assembly to intricate rulings on auditors’ culpability in instances of fraud. It encompasses the legality of actions like demonetization carried out without specific legislative backing and the implications of non-disclosure in loan transactions on taxation.

Furthermore, the collection includes cases that decipher the intersection of intellectual property and gaming legality, the limitations of prosecutability in criminal conspiracy under specific laws, and the absence of vicarious liability of directors in certain circumstances.

In addition, it navigates through crucial decisions regarding the jurisdiction of courts in cases involving offenses, the precedence of laws such as the Patent Act over competition laws, and the limitations of remedies available to professionals involved in insolvency and bankruptcy proceedings against third parties.

Each case presents a unique facet, contributing significantly to the evolving landscape of corporate law, offering invaluable insights into legal interpretations and implications for businesses and stakeholders alike

1. SC upholds President’s power to abrogate Article 370 without recommendations of J&K Constituent Assembly

Article 370 Of The Constitution, In re [2023] 157 taxmann.com 199 (SC)

The Supreme Court upheld the validity of the Union Government’s 2019 decision to repeal the special status of Jammu and Kashmir (J&K) under Article 370 of the Constitution. The Court held that the State of J&K had no internal sovereignty and the concurrence of the State Government was not required to apply the Indian constitution to the state of J&K.

The Court held that the President’s power under Article 370(3) did not cease to exist upon the dissolution of the Constituent Assembly of Jammu and Kashmir. When the Constituent Assembly was dissolved, only the transitional power recognised in the proviso to Article 370(3) which empowered the Constituent Assembly to make its recommendations ceased to exist. It did not affect the power held by the President under Article 370(3).

The court ruled that the President possessed the authority to revoke Article 370, and a recommendation from the J&K constituent assembly before its abrogation was not obligatory. The Supreme Court clarified that it would refrain from addressing the reorganization of Jammu and Kashmir into two Union Territories, as the Centre indicated its intent to restore statehood. Nevertheless, the Court mandated the Election Commission to oversee assembly elections by September 2024.

The Key Takeaways from the Article 370 decision are as under:

(a) The (former) State of Jammu and Kashmir retained no sovereignty

The Supreme Court affirmed the Central government’s choice to abrogate Article 370, emphasizing that Jammu and Kashmir does not possess distinctive internal sovereignty distinct from other states in India.

(b) SC validates the constitutional soundness of 2019 decision

The Supreme Court unequivocally validated the constitutional soundness of the Central government’s August 2019 initiative, endorsing the creation of the union territory of Ladakh through the delineation from Jammu and Kashmir.

(c) Issuance of Direction to the Election Commission to conduct elections in J&K in 2024

The Supreme Court issued a directive to the Election Commission of India (EC), mandating the organization of elections in Jammu and Kashmir by September 30 2024.

(d) Supreme Court’s Stance on Jammu and Kashmir’s December 2018 Presidential Rule

The Supreme Court declined to pass judgment on the legitimacy of the Presidential rule imposed in Jammu and Kashmir in December 2018, citing that the petitioners did not explicitly challenge its validity.

(e) Article 370 “A Temporary Provision”

The Supreme Court declared that Article 370 is a provisional provision, explaining that it was instituted as a temporary measure during wartime conditions in the state.

(f) The challenge to the Proclamation under section 356 does not merit adjudication

The Court further emphasized that when a proclamation under Article 356 is enacted, numerous decisions made by the Centre cannot be subjected to challenge.

(g) The Constitution of the State of Jammu and Kashmir is inoperative and is declared to have become redundant

The Constitution of India is a complete code for constitutional governance. Following the application of the Constitution of India in its entirety to the State of Jammu and Kashmir by CO 273, the Constitution of the State of Jammu and Kashmir is inoperative and is declared to have become redundant.

2. SC upholds legality of demonetisation carried out by Notification u/s 26(2) of RBI Act without passing legislations

Vivek Narayan Sharma v. Union of India [2023] 146 taxmann.com 36 (SC)

In the instant case, the petitioners challenged various aspects of the demonetization policy, including legal interpretation, procedural aspects, proportionality, and the impact on the economy and citizens as under. The Key issues raised can be summarized as under:

• The petitioners contested the interpretation of sub-section (2) of section 26 of the RBI Act, stating that the power to demonetize is limited to specific series of notes rather than all series within a denomination.
• It was argued that if such a significant power of demonetization is given to the Executive Government, Parliament should have provided guidelines for exercising this power. The absence of clear guidelines is considered a violation of constitutional articles.
• The decision-making process, alleged to have been flawed, involved the Central Board’s recommendations being hastily approved by the Central Government without due consideration of relevant factors. It’s argued that this decision was taken arbitrarily and without proper procedures being followed.
• The demonetization, affecting 86.4% of currency in circulation, is deemed disproportionate and causing severe damage to the economy, especially impacting the poor. It’s argued that alternative methods should have been considered before resorting to such a drastic measure.
• The period provided for exchanging old notes with new ones in the notification is deemed unreasonable.
• There was a contention regarding the RBI’s independent authority under a specific section of the Specified Bank Notes (Cessation of Liabilities) Act, 2017, to accept demonetized notes beyond the specified period in notifications issued under another section of the same Act.

The Supreme Court upheld the legality of demonitisation, carried out by Notification u/s 26(2) of RBI Act without passing legislations.

The Court held that power available to Central Government under sub-section (2) of section 26 cannot be restricted to mean that it can be exercised only for ‘one’ or ‘some’ series of bank notes and not for ‘all’ series of bank notes; power can be exercised for all series of bank notes

It was held that sub-section (2) of section 26 does not provide for excessive delegation inasmuch as there is an inbuilt safeguard that such a power has to be exercised on recommendation of Central Board and as such, sub-section (2) of section 26 is not liable to be struck down on said ground.

The Court held that the Notification No. 3407(E), dated 8-11-2016, issued by Central Government in exercise of powers conferred by sub-section (2) of section 26, vide which Central Government declared that bank notes of denominations of existing series of value of five hundred rupees and one thousand rupees shall cease to be legal tender with effect from 9-11- 2016, to extent specified in impugned Notification does not suffer from any flaws in decision-making process and RBI and Central Government were in consultation with each other for at least a period of six months preceding said action

Since restrictions on the use of demonetized currency were in public interest of curbing evils of fake currency, black money, drug trafficking & terror financing and there was a direct nexus between restrictions and object of action, impugned Notification dated 8-11-2016 satisfies test of proportionality and, as such, cannot be struck down on said ground.

With regard to the RBI’s independent power, it was held that the RBI does not possesse independent power under sub-section (2) of section 4 of 2017 Act in isolation of provisions of sections 3 and 4(1) thereof to accept demonetized notes beyond period specified in notifications issued under sub-section (1) of section 4 of 2017 Act

3. Woman can be ‘Karta’ of HUF; Hindu Law affirms women’s right to assume the role of HUF Karta without restrictions: Delhi HC

Manu Gupta v. Sujata Sharma [2023] 157 taxmann.com 234 (Delhi)[04-12-2023]

In the instant case, question that arose before the High Court was whether a daughter can be karta of HUF since recognition of a daughter as coparcener by section 6 of the Hindu Succession Act encompasses all incidents of a Coparcener including the right to become karta of HUF?

The High Court observed that a woman can serve as the “karta” of a Hindu Undivided Family (HUF). This upholds a significant 2016 judgment expanding women’s inheritance rights under Section 6 of the Hindu Succession Act.

The Court emphasized that there are no legislative or traditional Hindu law restrictions on a woman’s right to be a Karta. Also, societal pressure cannot be a reason to deny the rights expressly conferred by the legislature.

In the present case, the respondent, the family patriarch’s granddaughter, was appointed as the Karta, given that all his sons had passed away. Disputes arose with opposing grandsons contesting the respondent’s Karta status. The Court acknowledged objections based on societal perspectives, arguing against a woman assuming the role of Karta.

Dismissing objections from a grandson, the Court was of the view that societal practices undergoing systemic changes may face resistance. Time transforms them into tools for social change. The Court held that the test of popular acceptance cannot override statutory rights protected by the Constitution.

Further, the court added that the claim that the husband of a female Karta would have indirect control over the activities of the HUF of her father’s family is “only a parochial mindset.”

The High Court reflected on historical gender equality, highlighting societal shifts that classified women into predetermined roles. The court expressed sadness about an equal society turning into a place where unfairness and discrimination thrive. Laws were needed to stop harmful practices like sati, child marriage, harassment, and violence, aiming to free women from societal restrictions.

The High Court held that a daughter can serve as the Karta of a HUF, as the acknowledgement of daughters as coparceners by Section 6 of the Hindu Succession Act includes all aspects of coparcener rights, including the right to become the Karta of the HUF. 

4. SC rejects review petition on its Rainbow Papers decision on interpretation of water fall mechanism u/s 53 of IBC

Sanjay Kumar Agarwal v. State Tax Officer [2023] 156 taxmann.com 69 (SC)

In the liquidation proceedings of a Corporate Debtor, the Sales Tax Officer sought payment for total dues under the Gujarat Value Added Tax, 2003, asserting a first charge over the liquidation property.

The NCLT rejected the application, stating that the sales tax department’s claim did not supersede IBC provisions. The NCLAT upheld this decision. However, the Supreme Court, in an impugned order, allowed the appeal against NCLT and NCLAT.

Consequently, the Liquidator to file a petition seeking a review of the order. The Supreme Court observed that the power to review its judgments has been conferred on Supreme Court by article 137 of Constitution of India. That power is subject to provisions of any law made by Parliament or Rules made under Article 145.

Since the Order XLVII of Part IV deals with provisions of Review, in a Civil Proceeding, an application for review is entertained only on grounds mentioned in Order XLVII Rule 1 of Code of Civil Procedure and in a Criminal Proceeding on ground of an error apparent on face of record.

The Supreme Court held that even a third party to proceedings, if he considers himself to be an aggrieved person, may take recourse to remedy of review petition. Therefore, the instant review petition could not be entertained and same was to be dismissed.

5. SC dismisses SLP against HC’s ruling by which it restrained Go Air and its IRP to take control of leased aircraft

Go Airlines India Ltd. v. SMBC Aviation Capital Ltd. [2023] 153 taxmann.com 261 (SC)

Go Air, a licensed commercial airline in India, faced defaults in lease rent payments, leading to an application under Section 10 of the IBC, 2016. Simultaneously, lessors issued termination notices for lease agreements and filed independent applications with DGCA seeking aircraft registration cancellation under Rule 30(7) of Aircraft Rules, 1937.

While NCLT admitted Go Air’s CIRP application, the DGCA decided to hold lessors’ de-registration applications in abeyance. Dissatisfied, lessors filed a petition in the writ court seeking directions to DGCA for aircraft registration cancellation as per Aircraft Rules.

The Single Judge by impugned interim order had held that since said aircrafts were lessor’s assets, Go Air and its representatives were restrained from removing, replacing, taking out any parts or spares etc. from any of aircraft till conclusive adjudication of writ.

Consequently, the Go Air filed an appeal on ground that CoC had approved Go Air’s revival scheme and resultantly Go Air had petitioned DGCA for reinstatement of airlines operations, of which they expected an immediate approval and in event such approval was granted, directions in impugned interim judgment would prevent Go Air’s renewed functioning.

Since proceedings under Article 226 of Constitution were pending before Single Judge and proceedings were argued on day-to-day basis, the Supreme Court observed that the jurisdictional issues which were sought to be raised in instant proceedings could be addressed before High Court.

Thus, the Supreme Court held that the instant petition against High Court ruling was to be dismissed.

6. Section 66(1) of IBC isn’t unconstitutional of being ultra vires of article 14 as there is no arbitrariness in it: HC

Smt. Sudipa Nath v. Union of India [2023] 148 taxmann.com 33 (TRIPURA)

The petitioner, a practicing advocate, filed a writ petition under Article 226, seeking a Mandamus and/or in the nature thereof. The petition aimed to declare Section 66(1) of the IBC, 2016 unconstitutional under Article 14 unless the Court expands the NCLT’s powers to declare fraudulent business transactions void and allows applications under Section 66(1) by any creditor or contributory of the Corporate Debtor.

The High Court observed that section 66(1) makes persons responsible for fraudulent conduct of business of company personally liable for fraudulent trading to recouping losses incurred thereby and provides that NCLT can pass order holding such persons liable to make such contributions to assets of corporate debtor as it may deem fit.

NCLT lacks the authority to issue orders against entities other than corporate debtors under Section 66(1). Applications filed by RP under this section do not preclude civil actions by RP, liquidator, or the reconstituted corporate debtor post a successful CIRP for recovering dues from such entities.

The Section 66(1) applications do not impact the legality of independent criminal actions against these entities and individuals responsible for their business conduct with the corporate debtor. The legislature empowers NCLT to deem transactions void and assigns jurisdiction to fix liabilities for fraudulent or wrongful business conduct.

The High Court held that there is no arbitrariness, matchless manifest arbitrariness in section 66(1) to entertain writ petition filed to declare said provisions as ultra vires of article 14 of Constitution of India and, therefore, section 66(1) is not unconstitutional and said writ petition was to be dismissed.

7. Supreme Court affirms that resignation won’t protect auditors guilty of fraud from NCLT proceedings u/s140(5)

Union of India v. Deloitte Haskins and Sells LLP  [2023] 150 taxmann.com 77 (SC)

In the instant case, the Ministry of Corporate Affairs, upon receipt of a report from the Registrar of Companies under section 208, directed the SFIO to investigate into the affairs of IL&FS and its subsidiaries (IFIN). SFIO submitted the investigation report of IFIN. Thereafter, the SFIO filed a criminal complaint on 30-5-2019 before the Sessions Court (Special Judge – Companies Act), against, amongst others, the auditors/ex-auditors of IFIN.

The MCA filed a petition under section 140(5), inter alia, against the auditors of the IFIN, namely, BSR & Deloitte and the engagement partners as well as their team. In the petition under section 140(5), it was inter alia prayed to remove BSR as auditors of IFIN and to declare that Deloitte would be deemed to be removed as Statutory Auditor for IFIN for Financial year 2012-13 to the financial year 2017-18. Further, it was requested to permit the Ministry of Corporate Affairs to appoint an auditor for IFIN under the first proviso of section 140(5) and declare/direct that BSR, its engagement partners, Deloitte and its engagement partners would not be eligible to be appointed as an auditor for any company for a period of five years under the second proviso of section 140(5).

Deloitte filed application challenging the maintainability of section 140(5) petition before the NCLT on the ground that Deloitte was no longer the auditor for IFIN. BSR and its engagement partners also filed an application challenging the maintainability of section 140(5) petition before the NCLT on the ground that BSR was no longer the auditor for IFIN. However, the NCLT passed an order upholding the maintainability of section 140(5) petition. Thereafter, the BSR filed a writ petition before the High Court, inter alia, challenging the vires of section 140(5); the directions issued and the order of the NCLT upholding the maintainability of section 140(5) petition.

High Court upheld the validity of section 140(5), the High Court held that once the auditor resigned as an auditor or was no more an auditor on his resignation, thereafter section 140(5) proceedings were no longer maintainable as the petition filed by the Union of India under section 140(5) had been satisfied by the subsequent resignation of the auditor. The High Court set aside the order passed by the NCLT.

The Court observed that on true interpretation and scheme of Section 140(5) of the Act, 2013, once the enquiry/proceedings is/are initiated under first part of section 140(5) of the Act, either suo motu by the Tribunal or on an application made to it by the Central Government or by any person concerned, it must come to its logical end and irrespective of the fact whether during such enquiry/proceedings the auditor has resigned or not, there must be a final order to be passed by the Tribunal on whether such an auditor has, in fact, directly or indirectly, acted in a fraudulent manner or not.

The Court further held that if the High Court’s interpretation holds true, stating that once an auditor resigns, the proceedings under section 140(5) are automatically terminated and need not proceed any further, it could potentially create a situation where auditors, in order to escape the final order and the associated consequences outlined in the second proviso to section 140(5), may strategically resign to evade any adverse rulings by the Tribunal. The court emphasized that an auditor, whether directly or indirectly involved in fraudulent activities, should not be allowed to resign solely to circumvent the repercussions specified in the second proviso to section 140(5).

8. Non-disclosure of a loan transaction in ITR doesn’t void enforcement of Sec. 138 of NI Act: Bombay HC

Prakash Madhukarrao Desai v. Dattatraya Sheshrao Desai [2023] 153 taxmann.com 568 (Bombay)

In this legal scenario, a complainant lent Rs. 1.50 lakhs to the accused, who issued a cheque in return. However, the cheque bounced due to insufficient funds. The complainant filed a complaint under section 138 of the Negotiable Instruments Act, 1881. The Trial Court dismissed the complaint mainly because the loan amount wasn’t reflected in the complainant’s income tax returns.

On appeal (under section 378(4) of the Code of Criminal Procedure, 1973), a Single Judge considered conflicting decisions in cases like Krishna P. Morajkar v. Joe Ferrao, Bipin Mathurdas Thakkar v. Samir, and Pushpa Sanchalal Kothari v. Aarti Uttam Chavan. Some judges held that absence from income tax returns didn’t affect the proceedings under section 138, while another judgment, Sanjay Mishra v. Ms. Kanishka Kapoor, stated that undisclosed amounts in tax returns couldn’t be considered legally enforceable liabilities.

The Single Judge faced a dilemma regarding whether the law, under sections 138 to 147 of the Negotiable Instruments Act, should allow a complainant to recover unaccounted cash, especially when such transactions are prohibited under section 269-SS of the Income-tax Act, 1961. This question’s significance led the Judge to refer it to a Division Bench for clarification.

The High Court in its ruling held that a transaction not reflected in books of account and/or Income-tax returns of the holder of the cheque in due course can be permitted to be enforced by instituting proceedings under section 138 of NI Act in view of presumption under section 139 of NI Act that such cheque is issued by a drawer for discharge of any debt or other liability, execution of cheque being admitted.

The Court concluded that the violation of sections 269SS and/or section 271AAD of the 1961 Act will not render the transaction unenforceable under section 138.

9. Placing ‘Ultimate Teen Patti’ & ‘Call it Right’ games on petitioner’s website sans element of reward wasn’t illegal: HC

Play Games 24×7 (P.) Ltd. v. Reserve Bank of India [2023] 155 taxmann.com 72 (Bombay)

In this landmark ruling, the petitioner was a designer and developer of software related to games of skill and it used its software products online on a website and mobile applications. The Petitioner received foreign remittances at diverse periods between 2006 and 2012 and it issued equity instruments i.e. shares, to certain non-resident investors.

The Petitioner committed certain contraventions specified to mean delays in filing of prescribed forms, reporting of inward remittances and also delay in allotment of shares. The Petitioner made an application before RBI for compounding and the same was returned directing Petitioner to approach Foreign Exchange Department.

The Petitioner approached the Foreign Exchange Department and was directed to approach DPIIT to seek clarification for eligibility to receive FDI in the first place. The Petitioner made representations to DPIIT three times, however it received no response.

The Petitioner filed another compounding application and the same was returned by RBI pointing out that clarification from DPIIT had not been submitted. The Petitioner filed an instant petition seeking direction to RBI to consider and decide compounding application of the Petitioner.

The DPIIT submitted that on the petitioner’s website, there was an offering called ‘Ultimate Teen Patti’ and another called ‘Call it Right’.

It was noted that DPIIT proceeded only based on that name was ‘teen Patti’ and, therefore, gambling.  Further, it was held that the ‘ultimate teen patti’ and ‘call it right’ were not introduced untill Feb 2015 and July 2013 respectively, whereas contravention was for the period 2006-2012.

Since DPIIT did not show that there was any element of reward in either of the aforesaid games, mere positioning of those games on the website, that too after 2012, could not render illicit or illegal activity. Therefore, the RBI was to be directed to consider the application of the petitioner for compounding non-compliance for the period 2006-2012

10. Criminal conspiracy to commit an offence which is not a Scheduled Offence is not prosecutable u/s 3 of PMLA: SC

Pavana Dibbur v. Directorate of Enforcement [2023] 157 taxmann.com 10 (SC)

In the instant case, a dispute arose from the complaint filed by the Enforcement Directorate (ED) against the former Vice-Chancellor of Alliance University.

An ECIR was registered by ED against the accused alleging that he collected a sum of Rs.107 crores from students claiming himself as chancellor of Alliance University.  The allegation against the appellant was that the appellant facilitated the accused to use of her bank accounts to siphon university funds, thereby, assisting the accused in activity connected with proceeds of crime.

Further, funds siphoned by accused which constitute proceeds of crime, were used by the appellant for acquiring subject properties. The Special court took cognisance of said complaint. By impugned order, the Single Judge of the High Court dismissed the petition filed by the appellant for quashing the complaint.

It was noted that first property could not be said to have any connection with proceeds of crime as acts constituting schedule offence were committed after the property was acquired and the issue of whether the appellant had used tainted money forming part of proceeds of crime for acquiring second property could be decided only at the time of trial.

Further, in the chargesheet file in alleged scheduled offences, there was no allegation of commission of criminal conspiracy to commit any of the offences included in the schedule.

On appeal, the Apex Court ruled that it is not necessary that a person against whom an offence under section 3 of PMLA is alleged, must have been shown as accused in a scheduled offence.

The Court held that even if an accused shown in a complaint under PMLA is not an accused in scheduled offence, he will benefit from acquittal of all accused in a schedule offence or discharge of all accused in a scheduled offence and similarly, he will get benefit of order of quashing proceedings of schedule offence.

An offence punishable under section 120-B of IPC will become a scheduled offence only if conspiracy alleged is of committing an offence which is specifically include in schedule.

hence, the appellant could not be prosecuted for offences punishable under section 3 of PMLA, and accordingly, the impugned order was to be set aside.

11. Territorial jurisdiction of PMLA Special Court to be decided with reference to place where offence u/s 3 took place: SC

KA Rauf Sherif v. Directorate of Enforcement [2023] 149 taxmann.com 143 (SC)

A complaint was filed against 22 individuals, leading to a National Investigation Agency (NIA) case. After trial, 21 were convicted, but the petitioner was not among the accused.

Post the conviction, the Enforcement Directorate registered an ECIR in connection with the same offence. Subsequently, a fresh complaint was filed in Mathura against 4 individuals (not including the petitioner).

Despite not being named in the Mathura FIR initially, the petitioner was arrested in connection with the ECIR. The Enforcement Directorate filed a prosecution complaint, and the petitioner was listed as accused No. 1.

Chargesheets were filed against multiple accused, including the petitioner, in different locations. Charges for money laundering under the Prevention of Money Laundering Act (PMLA) were framed by the Special Judge in Lucknow. The case continued, including a dismissal of a discharge application filed by one of the accused.

The petitioner, accused No. 1, filed a petition seeking the transfer of the case from the Special Judge, PMLA in Lucknow to the Special Judge, PMLA at Ernakulam, Kerala.

The Supreme Court held that irrespective of where FIR related to scheduled offence was filed and irrespective of which Court took cognizance of scheduled offence, the question of territorial jurisdiction of a Special Court to take cognizance of a complaint under PMLA should be decided with reference to place/places where anyone of activities/processes which constitute offence under section 3 took place

12. No vicarious liability of Directors for cheque bounce merely because they were managing the affairs of the Co.: SC

Ashok Shewakramani v. State of Andhra Pradesh [2023] 153 taxmann.com 277 (SC)

The accused company was alleged to have issued an account payee cheque in favour of the complainant towards the discharge of its liability, which had been dishonoured. Since, the appellant was the director of the accused company at a relevant time, a criminal complaint under section 138 was filed against the appellant. The appellants filed a petition n under section 482 of the Code of Criminal Procedure, 1973 for quashing the complaint The High Court by an impugned order dismissed the petition.

On appeal, the Supreme Court made key observations as under:

• Every person who is sought to be roped in by virtue of section 141(1) must be a person who at the time when the offence was committed was in charge of and was responsible to the company for the conduct of the business of the company
• Words ‘was in charge of’ and ‘was responsible to the company for the conduct of the business of the company’ cannot be read disjunctively and the same ought to be read conjunctively in view of the use of words ‘and’ in between
• Merely because somebody is managing the affairs of the company, per se, he does not become in charge of the conduct of business of the company or the person responsible for the company for conduct of the business of the company

The Apex Court noted that the cheques in question were not signed by the appellant. Further, the appellant was only in charge of the company at the relevant time and, thus, by no stretch of the imagination, it could not be concluded that the appellant was also responsible to the company for the conduct of business.  Therefore, the impugned Order passed by the High Court dismissing a petition filed by the appellant for quashing the complaint filed under section 138 was to be set aside.

13. SC affirms NCLAT’s order directing Google to pre-deposit 10% of penalty imposed by CCI and declining stay of CCI’s order

Google LLC v. Competition Commission of India [2023] 146 taxmann.com 380 (SC)

In the instant case, the Competition Commission of India (CCI) imposed a penalty of Rs. 1337.76 crore on Google for abusing its dominant position in multiple markets in the Android Mobile device ecosystem, apart from issuing a cease and desist order. The CCI also directed Google to modify its conduct within a defined timeline.

On appeal, Google insisted on the grant of an interim stay. The NCLAT admitted the appeal subject to the deposit of 10 per cent of the penalty quantified by order of the CCI, however, no interim stay had been granted in respect of the rest of the directions of the CCI.

On appeal before the Supreme Court, it was found that findings, which had been arrived at by CCI could not be held at the interlocutory stage to be either without jurisdiction or suffering from a manifest error which would have necessitated interference in appeal. Therefore, the order of the NCLAT declining to grant interim relief could not have been interfered with and the NCLAT was to be directed to dispose of the appeal by 31-3-2023.

14. Nomination by shareholder for transmission of shares after his death u/s 109A of CA, 1956 doesn’t override testamentary/intestate succession

Shakti Yezdani v. Jayanand Jayant Salgaonkar [2023] 157 taxmann.com 364 (SC)

In the instant case, the Supreme Court reinforced that nominations made under the Companies Act, 1956, and analogous provisions in the Companies Act, 2013, do not supersede succession laws. After the testator’s death, a dispute unfolded between the legal heirs and the nominees regarding ownership of the securities. The legal heirs contested the nominees’ sole entitlement, which was claimed under the nomination provisions of the Companies Act. They sought administration of the deceased’s properties under their supervision contesting the sole entitlement claimed by the nominees under the nomination provisions of the Companies Act.

Section 109A of the Companies Act, 1956, permitted shareholders to designate an individual to whom their shares would transfer upon their demise. The Appellants contended that nominations made under this section constituted a ‘statutory testament,’ conferring absolute ownership to the nominees after the testator’s death, thereby prevailing over testamentary or intestate succession laws.

However, the Supreme Court rejected this argument, emphasizing that the Companies Act does not address matters of succession and does not supersede inheritance laws. The court reiterated that the purpose of nomination, as understood in estate planning, aligns with the expectation of its impact on the transfer of securities, without altering broader succession principles. The judgment offers crucial clarity and direction for resolving conflicts between nominees and legal heirs regarding the ownership of shares or securities after the original holder’s death

15. Patent Act, 1970 shall prevail over the Competition Act, 2002 on the issue of exercise of rights by a Patentee: HC

Telefonaktiebolaget LM Ericsson (Publ) v. Competition Commission of India [2023] 152 taxmann.com 317 (Delhi)

In the instant case, the question that arose before the Court was as to whether the Competition Commission of India possesses the authority, as per the Competition Act of 2002, to investigate the activities of a patent holder who exercises their rights subsequent to obtaining a patent in India?

The Supreme Court ruled that the Patents Act must prevail over the Competition Act on the issue of the exercise of rights by a patentee under the Patents Act ; the Competition Act is a general legislation pertaining to anti-competitive agreements and abuse of dominant position generally whereas Patents Act is a special statute.

It was held that the Competition Act is a general legislation pertaining to anti-competitive agreements and abuse of dominant position generally. The inclusion of Section 84(6)(iv) in the Patents Act by way of an amendment after the Competition Act was passed with Section 3(5)(i)(b) is particularly instructive of the above legislative intent as regards anti-competitive agreements.

The High Court ruled that the Chapter XVI of the Patents Act is a complete code in itself on all issues pertaining to unreasonable conditions in agreements of licensing of patents, abuse of status as a patentee, inquiry in respect thereof and relief that is to be granted therefore.

The Court concluded that there is no scope of doubt beyond the pale of doubt that the Patents Act is the special statute, and not the Competition Act. It is also a fact that Chapter XVI of the Patents Act is a subsequent legislation as compared to the Competition Act.

Therefore, when assessed, by the maxim ‘generalia specialibus non derogant’ or by the maxim lex posterior derogat priori, the Patents Act must prevail over the Competition Act on the issue of exercise of rights by a patentee under the Patents Act.

16. Remedy u/s 66 of IBC is not available to Resolution Professional/Successful RA against third parties: SC

Gluckrich Capital (P.) Ltd. v. State of West Bengal [2023] 151 taxmann.com 136 (SC)

During insolvency proceedings at NCLT, an order prohibited the Resolution Professional from approving a resolution plan. Concurrently, a financial creditor filed an FIR against suspended directors of the corporate debtor. Subsequently, the directors filed a writ before the High Court challenging the FIR lodged against them.

The High Court extended transit anticipatory bail extension to respondents, prompting an unsecured financial creditor of the corporate debtor to file a petition in the Supreme Court. The petitioner claimed the right to challenge the interim order as an interested party.

Subsequently, the Supreme Court held that applicant was neither informant nor a party to proceedings pending before High Court and was totally unconnected with FIR lodged by financial creditors and, therefore, applicant had no locus in matter and special leave petition filed by applicant was dismissed.

The Applicant approached the Supreme Court, seeking clarification on a previous order to ensure it does not hinder their pursuit of recovery proceedings under Section 66 of the Insolvency and Bankruptcy Code, 2016. The Supreme Court observed that the RP or the successful resolution applicant (SRA) is responsible for pursuing civil remedies against third parties for the recovery of dues payable to the corporate debtor.

The remedy against third party is not available under section 66, and civil remedies which may be available in law, are independent of section 66. The Supreme Court held that application filed by applicant for clarification was wholly misconceived and same was to be dismissed.

17. Development rights in immovable property created in favour of CD constitute “asset” for the purposes of Sec. 25(2)(a) of IBC

Victory Iron Works Ltd. v. Jitendra Lohia [2023] 148 taxmann.com 290 (SC)

The Company was ostensible owner of subject property to an extent of about 10.19 acres. The Corporate debtor held 40 per cent of share capital in company apart from holding a joint Development Agreement with respect to property in question.

Subsequently, the Corporate Insolvency Resolution Process (CIRP) was initiated against corporate debtor. The Resolution Professional (RP) filed an application before NCLT under section 25, read with regulation 30 of IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, for issuance of direction to local district administration to give proper assistance to RP in taking possession of properties of corporate debtor.

It was noted that development rights held by corporate debtor formed part of intangible assets of corporate debtor and RP was duty bound under section 25(2)(a) to take custody of same. Aggrieved by the said order of the NCLT, appeal was filed before the NCLAT.

The appeals were dismissed by NCLAT. Pursuant to which, an appeal was preferred with the Supreme Court. The Supreme Court held that NCLT as well as NCLAT were right in upholding that assets of corporate debtor were to be protected and, therefore, a direction under regulation 30 was issued to local district administration to give proper assistance to RP in taking possession of properties of corporate debtor was justified.

Also, it was noted that the exclusion of assets owned by a third-party, but in possession of corporate debtor held under contractual arrangements from definition of expression ‘assets’, is limited to Section 18; in other words, Explanation under section 18 does not extend to Section 25 of the IBC, 2016.

18. Related party is not per se disqualified from bidding in e-auction of assets of corporate debtor in liquidation: SC

Eva Agro Feeds (P.) Ltd. v. Punjab National Bank [2023] 154 taxmann.com 161 (SC)

In e-auction process for sale of assets of corporate debtor, appellant was as a successful bidder. The Liquidator had cancelled said e-auction as asset was sold at reserved price and he wanted to sell assets at higher price. Consequently, the Appellant filed interlocutory application before NCLT against action of Liquidator.

The NCLT allowed said application by directing Liquidator to send a communication to appellant requiring him to deposit balance sale consideration within time specified in E-auction notice. Subsequently, the Respondent-financial creditor filed appeal against NCLT’s order.

The NCLAT by impugned order held that NCLT had committed an error in reading provisions contained in clause 12 of Schedule I which authorised liquidator to conduct multiple rounds of auction to maximise realisation from sale of assets and promote creditors best interest and, thus, auction bidder had no vested right to claim auction in its favour in a liquidation sale.

Aggrieved by the order of NCLAT, an appeal was preferred with the Supreme Court.  The Supreme Court observed that NCLT had rightly held that there were no objective materials before the Liquidator to cancel auction process and to opt for another round of auction.

Further, the High Court held that NCLAT was not justified in setting aside NCLT’s order. Therefore, impugned order passed by NCLAT was to be set aside and NCLT’s order was to be restored.

19. Tata Power-Operational Creditor can’t demand arrears via a waterfall mechanism; dues of CD to be paid as per RP: SC

Tata Power Western Odisha Distribution Ltd. (TPWODL) v. Jagannath Sponge (P.) Ltd. [2023] 154 taxmann.com 484 (SC)

The on an application filed under section 7 against the Corporate Debtor, the Corporate Insolvency Resolution Process (CIRP) was initiated vide order of the NCLT. Consequently, the resolution plan was submitted in the CIRP of the corporate debtor by successful resolution applicant which plan was approved by the NCLT.

The Applicant approached the Supreme Court, seeking clarification on a previous order to ensure it does not hinder their pursuit of recovery proceedings under Section 66 of the Insolvency and Bankruptcy Code, 2016. The Supreme Court noted that the RP or the successful resolution applicant (SRA) is responsible for pursuing civil remedies against third parties for the recovery of dues payable to the corporate debtor.

The NCLT deemed the appellant’s claim against the successful resolution applicant invalid, citing the approved resolution plan as binding. The NCLT observed that the appellant failed to file a claim in the Insolvency Resolution Process of the Corporate Debtor, rendering the claimed amount unenforceable against the successful resolution applicant.

The Appellant’s appeal, subsequently dismissed by the NCLAT, led to an appeal before the Supreme Court. The Supreme Court held that the electricity suppliers being operational creditor cannot insist on payment of arrears of corporate debtor for restoration/grant of an electricity connection, which have to be paid in manner prescribed in resolution plan, as approved by Adjudicating Authority.

20. SC upholds Section 327(7) of Cos. Act 2013, denying priority to workers’ dues after liquidation of company under IBC

Moser Baer Karamchari Union v. Union of India [2023] 150 taxmann.com 43 (SC)

The Petitioners filed writ petition praying for an order striking down section 327(7) of Companies Act, 2013, which puts statutory bar on application of sections 326 and 327 of the 2013 Act to liquidation proceedings under IBC, 2016, as arbitrary and violative of Article 21 of Constitution.

It was also prayed to issue an appropriate writ, direction or order in nature of Mandamus so as to leave statutory claims of ‘workmen’s dues’ out of purview of waterfall mechanism under section 53 by giving a purposive interpretation to section 53.

The Supreme Court observed that the Insolvency and Bankruptcy Code (IBC) is a comprehensive enactment specifically addressing insolvent companies, prioritizing rehabilitation and revival over dissolution. The Code’s waterfall mechanism for workmen’s dues is a well-considered decision, offering significant protection in line with the Code’s objectives.

This structured mathematical formula creates a hierarchy for debt payment, and altering any provision may disrupt the equilibrium, leading to instability and impacting the rights of secured creditors, operational creditors, and government entities.

The Supreme Court held that in view of above as section 327(7) of Companies Act, 2013 provides that sections 326 and 327 of Act, 2013 shall not be applicable in event of liquidation under IBC, which has been necessitated in view of enactment of IBC and it applies with respect to liquidation of a company under IBC, section 327(7) of Act, 2013 cannot be said to be arbitrary and/or violative of Article 21 of Constitution of India.

Also, in case of liquidation of a company under IBC, distribution of assets shall have to be made as per section 53 of IBC subject to section 36(4). Therefore, writ petition lacked merit and deserved to be dismissed.

21. The Referral Court is only required to check if there’s an arbitration agreement, not whether it’s properly stamped: SC

Interplay, In re [2023] 157 taxmann.com 328 (SC)[13-12-2023]

In the instant case, the issue arose surrounding the admissibility of unstamped or insufficiently stamped instrument in evidence. The issue arose in the context of three statues namely the Arbitration and Conciliation Act 1996 (“Arbitration Act”), the Indian Stamp Act 1899 (“Stamp Act”), and the Indian Contract Act 1872 (“Contract Act”). The Court held that an instrument which is unstamped or insufficiently stamped would be inadmissible in evidence, however the same is a curable defect and that in itself does not make the agreement void or unenforceable.

This ruling contrasts with a 2011 decision by a two-judge bench, which held that an arbitration agreement in an unstamped contract could not be enforced. A subsequent 2019 decision asserted that an arbitration agreement in an unstamped commercial contract did not legally exist until the underlying contract was properly stamped. However, in 2021, a three-judge bench questioned this view in N N Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd., leading to the matter being referred to a Constitution Bench comprising five judges.

In the current case, the court upholds the principle of minimal judicial interference, noting that Section 5 of the Arbitration Act limits judicial intervention in arbitral proceedings. It emphasizes party autonomy and the settlement of disputes through arbitration, with courts playing a minimal supervisory role. The court clarifies that the enforceability of an arbitration agreement in an unstamped contract will be determined by the arbitral tribunal, and Section 5 restricts judicial intervention in such matters.

The Court held that the referral Court at Section 11 stage should not examine or impound an unstamped or insufficiently stamped instrument, but rather leave it for the determination by the arbitral tribunal. When a party produces an arbitration agreement or its certified copy, the referral court only has to examine whether an arbitration agreement exists in terms of Section 7 of the Arbitration Act. The referral Court under Section 11 is not required to examine whether a certified copy of the agreement/instrument/contract discloses the fact of payment of stamp-duty on the original. An objection as to stamping does not fall for determination under Sections 8 or 11 of the Arbitration Act. The concerned referral court must examine whether the arbitration agreement prima facie exists. Any objections in relation to the stamping of the agreement fall within the ambit of the arbitral tribunal.

22. SC approves of relief to depositors of Sahara Co-operative Societies by releasing Rs. 5000 crore from refund a/c

Pinak Pani Mohanty v. Union of India [2023] 148 taxmann.com 460 (SC) [29-03-2023]

In the instant case, an application was filed by the Central Government before the Supreme Court seeking allocation of ₹ 5,000 crore out of ₹ 24,979 crores deposited by the Sahara group with the Securities and Exchange Board of India (SEBI) to repay the dues of the depositors of the Sahara Group of Cooperative Societies.

A total amount of Rs. 24,979.67 crores was lying unutilized with the SEBI in ‘Sahara-SEBI Refund Account’, which has been deposited pursuant to the earlier direction issued by instant Court. Respondent had submitted that out of the aforesaid amount of Rs. 15,569.27 crores deposited by Sahara India Real Estate Corporation Limited and Sahara Housing Investment Corporation Limited, Rs. 2253 crores had been taken out from Sahara Credit Co-operative Society Ltd. and deposited with SEBI on account of the dispute of Sahara Real Estate Limited. It was submitted that, thus, the corpus which was lying in ‘Sahara-SEBI Refund Account’ already includes the amount which belongs to the depositors of the aforesaid Sahara Group Co-operative Society Ltd.

Instant application had been preferred by Union of India for appropriate directions to transfer an amount of Rs. 5,000 crores out of unutilized amount was to be disbursed against the legitimate dues of depositors of Sahara Group Co-operative Societies.

The court held that Rs. 2253 crores had been taken out of the Sahara Credit Co-operative Society Ltd., i.e., one of the four Sahara Group Multi-State Co-operative Societies and deposited with SEBI in the ‘Sahara-SEBI Refund Account’ pursuant to earlier direction issued by instant Court and the amount lying in the ‘Sahara-SEBI Refund Account’ was lying unutilized and the genuine depositors of the Sahara Group of Co-operative Societies, which otherwise, were to be entitled to get back their money, the prayer sought in the present application seems to be reasonable and which would be in the larger public interest/interest of the genuine depositors of the Sahara Group of Co-operative Societies.

Therefore, the court ordered that out of the total amount of Rs. 24,979.67 crores lying in the ‘Sahara-SEBI Refund Account’, Rs. 5000 crores be transferred to the Central Registrar of Co-operative Societies, who, in turn, shall disburse the same against the legitimate dues of the depositors of the Sahara Group of Co-operative Societies, which shall be paid to the genuine depositors in the most transparent manner and on proper identification and on submitting proof of their deposits and proof of their claims and to be deposited in their respective bank accounts directly.

Further, the disbursement shall be supervised and monitored by Former Judge of instant Court.

23. SC upholds HC’s order quashing Odisha Govt’s land acquisition for Vedanta Foundation, imposes Rs. 5L costs on appellant

Anil Agarwal Foundation Etc. v. State of Orissa [2023] 150 taxmann.com 29 (SC)[12-04-2023] 

The appellant company had plans to establish a university in Orissa and requested the Government of Orissa to allocate 15,000 acres of contiguous land in the Bhubaneswar-Puri-Konark marine drive. Subsequently, a Memorandum of Understanding was executed between the Government and the appellant. The Government affirmed the availability of approximately 8000 acres of contiguous land and committed to making efforts to provide additional contiguous land and other necessary facilities. The acquired land was situated at a prestigious location, affecting numerous farming families due to the acquisition.

A writ petition was filed before the High Court challenging the entire land acquisition process. The High Court, through its contested order, invalidated the land acquisition proceedings and directed the restoration of possession to the respective landowners. Upon restoration, the landowners were required to refund the compensation received.

The High Court observed that two rivers flowed through the disputed land, and if acquired by the beneficiary company, control of the rivers would be under the company’s jurisdiction, violating the doctrine of public trust. Additionally, in close proximity, there was a wildlife sanctuary adjacent to the proposed university site, and extensive construction for the university would adversely impact the sanctuary. The High Court criticized the State Government for considering the proposal from only one beneficiary, without conducting a proper inquiry, and offering undue benefits to the appellant, including total autonomy over administration, admission, fee structure, curriculum, and faculty selection. The appellant was granted complete immunity from state government reservation laws, along with assistance in obtaining regulatory approvals from UGC, AICTE, etc.

The Court determined that the government’s undue favoritism, manifested in the offered benefits and the land acquisition proceedings, violated Article 14 of the Constitution. Consequently, the appeal against the High Court’s order was dismissed, and the appellant was directed to deposit Rs. 5 lakhs with the Registrar of the Court.

24. A State monopoly run through Govt.-Co. isn’t exempt from the purview of Competition Act, 2002: SC

Coal India Ltd. v. Competition Commission of India [2023] 151 taxmann.com 235 (SC)

The Appellant, Coal India Ltd. is a government company wholly owned by Central Government. In terms of the Coal Mines Nationalisation Act, 1973, general superintendence, direction, control and management of all mines, ownership of which stood vested in Central Government, vested with the appellant.  On the information provided by the second respondent, CCI found abuse of dominant position by the appellant. The Competition Appellate Tribunal (CAT) affirmed the findings and conclusion of CCI.  The Appellant filed an appeal against the order of the CAT.

In appeal, the appellant filed an interlocutory application contending that Coal India Limited i.e. first appellant being a monopoly created by a statute and geared and duty bound to achieve objects declared in article 39(b) of the Constitution of India and second appellant, Western Coalfields Limited, a subsidiary company of first appellant could not be bound by Competition Act, 2002 for reason that very purpose and policy underlying Nationalization Act, was to monopolise operation of coal mines and coal mining in hands of Central Government and its agencies such as appellants.

The Apex Court held that even departments of Government are separately included within the ambit of the word ‘enterprise’. Only activity of Government, which has been excluded from the scope of section 2(h) is any activity relatable to sovereign functions of Government.  It was observed that the first appellant was not a department of Government but was a Government company.  There was nothing in the definition of enterprise which excludes a State monopoly which is even set up to achieve goals in article 39(b) of the Constitution. Therefore, a State monopoly being run through the medium of a Government company, even for attaining goals in Directive Principles, will come within the ambit of Act.

25. ICAI’s non-outsourcing of CPE seminars that are eligible for CPE credits doesn’t indicate abuse of dominance

Institute of Chartered Accountants of India v. Competition Commission of India [2023] 151 taxmann.com 32 (Delhi)

In the instant case, the ICAI had framed Continuing Professional Education (CPE) program, which required its members to continue to keep themself abreast of professional development and skills by participating in educational activities related to the profession on a continuous basis. Learning activities were classified into structured and unstructured activities. The Informant, who was a qualified chartered accountant and an accomplished journalist in field of finance and fiscal laws filed information against ICAI. The Principal grievance of informant was that only ICAI and its organs were conducting structured learning activities and ICAI had not affiliated or recognized any other body to conduct such learning activities and, thus, abused its dominant position. The CCI by impugned order had directed Director General (DG) to conduct an investigation into matter.

On plea against CCI’s impugned order, the Delhi High Court noted that the CCI exercises powers conferred under the Competition Act, which in terms of section 62, is in addition and not in derogation of other statutes. Further the ICAI is charged with function of prescribing qualification for entry of a person’s name in Register. This function is required to be performed by the ICAI and it has been granted statutory powers to do so. The Council/ICAI also has the power and function to recognize foreign qualification and training for purposes of enrolment.

Plainly, this would not be subject to any review by the CCI. Thus, decision of ICAI to frame CPE Program for maintenance of professional standards could not be considered as abuse of its dominant position. In view of above, the High Court set aside the impugned order passed by CCI.