Analysis of SC revolt: Indian judiciary must accept that there are certain judicial ethics that every judge must have to strictly adhere to after taking oath under constitutional guidelines. 1. A judge shall not enter public debate or express his views to public on political matters or on matters that are pending or are likely to arise for judicial determination. 2. A judge is expected to let his judgement speak for themselves. He shall not give interviews to the media.
Unfortunately, top judges of the Supreme Court went public on 12 Jan 2018 to cleanse their soul for lodging protest against presumably erratic boss. The act broke the backbone of the top court, and set a precedent for high courts and lower courts to target respective boss of their territory. The wise men instead of approaching the government or the President of India opted for press to air their grievance. Technically, they have invited contempt action against themselves. But we are not talking of individuals but the institution that has suffered tremendously by the act of top judges. CJI should take the responsibility of the gross mismanagement in apex court and introspect the reasons why his top brother judges are up in arm against his conduct, he has completely failed to conduct the administration of the apex court transparently by occupying high seat but four wise men has failed the system. It is a man made unprecedented crisis that could have been easily avoided in the larger interest of the institution that all the top judges ( wise men ) are part off.
Detail cover story on the subject will be published in Feb 2018 issue of Opinion Express.
New delhi: What an irony! It took 2G special court judge OP Saini about seven years and more than 1,500 pages to conclude that there was not a single piece of “legally admissible evidence” against any of the 17 accused in what was touted as one of India’s biggest scams.
One would question — and rightly so — on what basis the charges were framed in this case, which culminated into a protracted trial spanning over six years. Principles of criminal trial enunciate that charges are framed only after the trial court is satisfied about the ‘primafacie’ case against the accused.
In his 1,552-page judgment, 2G judge Saini talks about how he waited for around 7 years from 10am to 5pm everyday – with a special emphasis on “summer vacation” – for someone to approach his court with legally tenable evidence, but to no avail.
This statement, which may remind many of a popular scene from the Bollywood comedy ‘Jolly LLB’, would have displayed the judge’s anguish but for one exception that it was the same judge who had found sufficient legally admissible evidence available on re- cord to kick start the trial on a day-to- day basis after framing charges in October 2011.
The entire case should have col- lapsed on that very day when the order on the charges was to be pronounced, with a direction to exonerate all accused, if what the 2G verdict now holds is the correct view – subject to its fate in appeal.
If six years of trial, which was being monitored by the Supreme Court and in which the chargesheets were vetted by the Central vigilance Commission (CVC), eventually determines that the premise of the whole case was “rumour, gossip and speculation”, this was not only a fragrant violation of the rights of the accused who were made to stand trial and their bail pleas were repeatedly dismissed, but also an avoidable waste of public money and human resources – and for this, only and only the trial court is answerable.
Judge OP Saini described the chargesheet as “orchestrated” but it was his decision to order trial against the accused based on the same “orchestrated” chargesheet.
Alternatively, if we tend to reasonably construe it as a case of late realization by the trial court, then also the judge, being the master of the trial, should explain why a trial would run for six years without any evidence against the accused; why the judge would not exercise his powers under the Criminal Procedure Code (CRPC) to demand evidence from the prosecution during the trial; why it is only at the stage of writing the judgment the court acknowledged that the prosecution had no case at all and finally, why did it take the judge eight months to author the judgment of acquittal in a case that was bereft of any merit.
Section 311 of the CrPC empowers the trial court to summon and examine “any such person if his evidence appears to it to be essential to the just decision of the case”.
There have been several instances quoted in the judgment where the judge drew inferences to reach conclusions that former Telecom Minister A Raja was not guilty of manipulating the process of 2G license allocation so as to illegally benefit some companies or to loot the public exchequer.
Consider this portion of the judgment: “It is clear that somebody from the PMO had given a go ahead to the DoT for issue of new licences and most probably it was Sh. Pulok Chatterjee himself… It was not A Raja, but Pulok Chatterjee, in consultation with T K A Nair, as he had suppressed the most relevant and controversial part of the letter of A Raja from the then Prime Minister.” But Pulok Chatterjee was never called as a witness during the trial.
The prosecution did not make him a witness and the judge, finally condemned both Chatterjee and Nair, without feeling the need to call them to the court first.
Was it not proper for the trial court to invoke its powers under Section 311, CrPC and call Chatterjee and Nair as witnesses before arriving at the conclusion that “most probably” Chatterjee gave a go ahead for the grant of 2G licenses and thus it was he who misled then PM Manmohan Singh?
If the accused has a right to earn freedom for want of proof, why should a man be declared guilty of suppressing facts in a case like this, without giving him an opportunity to explain? Is this not declaring a man guilty without giving him an audience first – one of the principles of natural justice i.e. audi alteram partem?
Read this too: “Prime Minister is a busy executive. Where from would he find time to read such lengthy notes. Prime Minister is not expected to be immersed in files. It was much easier and better for him to read and understand the letter of Sh. A Raja rather than this note of Sh. Pulok Chatterjee.”
Another part of the judgment stated: “There is no material on the record to show if this letter was taken note of in the PMO. Hon’ble Prime Minister may even not be aware of this reply.”
This also forms a part of the verdict: “When the letter was duly discussed and considered by the Hon’ble Prime Minister, and no one from the PMO has been examined as a witness nor the relevant files with processing notes have been produced before the Court, how can one say that the facts were misrepresented or that the Hon’ble Prime Minister was misled regarding the opinion of Law Minister for referring the matter to EGoM?”
Here again, if the letters between the PM and A Raja and the consequent actions held the key to determine whether there was a conspiracy or not, what prevented the trial court from summoning the PM and/or other officials from the PMO as witnesses instead of drawing inferences by citing lack of prosecution witnesses and using phrases such as “may” and “is not expected”?
The trial court harped upon the same formula when it indicted the then Law Minster and the Law Secretary but never summoned them as witnesses to ascertain why they objected to the Raja’s mandate on 2G license allocation.
“If the Law Minister felt so strongly about the matter to be referred to the EGoM, he should have written either to the Prime Minister or to Sh. A Raja, instead of recalling from DoT, a reference which had already been returned… the conduct of the Law Secretary and the then Law Minister was against all established canons, discipline and protocol of Government working,” read the judgment but did not state why these high functionaries were being reproached without letting them take the witness box.
Undoubtedly, the prosecution’s case has to stand on its own feet and the judge is absolutely right when he says that the “high profile nature of a case cannot be used as grounds for holding people guilty without legal evidence.”
But it is an equally important principle laid down by the Supreme Court in a body of judicial precedents that “a criminal trial is meant for doing justice to all, the accused, the society and a fair chance to prove to the prosecution, since then alone can law and order be maintained” and therefore, the presiding judges has a duty “to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community.”
The question therefore looms large whether the prosecution was given a “fair chance” to prove the case and also if the trial court did its best “to find out the truth” apart from following the golden rule of “proof beyond reasonable doubt”.
It is also intriguing that the trial court allowed the defence, including the prime accused Raja, to lead evidence and examine witnesses under Section 313 of the CrPC even though the judgment now appears to have ruled that prosecution had no case at all. What was the necessity to hear the arguments of the defence if the prosecution’s case was without any “legally admissible evidence” against them?
Further, if the judge is correct in holding that “a huge scam was seen by everyone where there was none”, what is the “mess” the judge is talking about?
The trial court noted that a “mess” and some “confusion” got created due to action and inaction of some bureaucrats in PMO, DoT and Finance Minis- try. However, if Raja’s note to the PM was unambiguous and that there was nothing wrong in the method of granting of 2G licenses as proposed by Raja, where is the question of these officials creating a “mess” by surreptitiously approving this method?
About routing of Rs 200 crore from Dynamix Realty to Kalaignar Tv (P) Limited, which was run by the DMK family, including Kanimozhi, through Kusegaon Fruits and vegetables (P) Limited and Cineyug Films (P) Limited, the trial court agreed that the transaction “may have some unusual features and the documentation created for the same may suffer from deficiencies”. But it held that these factors alone did not make it out a “transaction of payment of illegal gratification.”
The prosecution’s case of the money trail was dismissed on the ground that it could not establish a link of the money with public servants and that there was also a problem of “chronological proximity” because the first transfer of money began four months after the licenses were given. Thus, no upfront or transfer of money in quick succession prompted the judge to rubbish the prosecution’s claim, thereby ignoring the possible criminality of the transaction although under the Prevention of Corruption Act, it is not required to prove pecuniary benefits.
While cancelling the telecom licences, the Supreme Court had fined three companies of Rs 5 crore each, and five others of Rs 5 lakh each, for earning the benefits of the “wholly arbitrary and unconstitutional action” in grant of 2G licenses. But with the trial court now deciding that there was no scam and no illegality, the companies would do well to demand a refund, along with inter- est and damages on account of loss of reputation etc.
The Supreme Court, in its main judgment, indeed clarified that investigation and the criminal trial will not be affected by its order of cancellation of licenses but the truth of the matter remains that CBI and ED were directed to file reports on status of probe in the top court after vetting by the CvC.
So does it now mean that all these status reports lacked complete sub- stance and “legally admissible evidence” but the CvC as well as the Supreme Court silently accepted these reports?
One of the finest legal minds, Justice Krishna Iyer had in Inder Singh v/s State (Delhi Admin), 1978, emphasised that if a case is proved perfectly, it is argued that it is artificial; if a case has some flaws, inevitable because human beings are prone to err; it is argued that it is too imperfect.
“Proof beyond reasonable doubt is a guideline, not a fetish,” he had further emphasised. The final word by the trial court in 2G case seems to be a precise illustration of the apprehensions that were raised by Justice Iyer four decades ago.
Utkarsh Anand: Author is the Legal Editor of CNN-News18.
The Bharatiya Janata Party (BJP) leader Subramanian Swamy while addressing the media on the 2G spectrum scam verdict that came out on Thursday morning said that the court’s decision was not a setback but an aberration which should serve as a lesson for the Prime Minister. “This is not a setback at all, its an aberration as the law officers were not serious on fighting against corruption. So, I hope the PM takes a lesson from this. We must now fight corruption on war footing,” Subramanian Swamy said while addressing the media. Swamy even suggested that Centre set up a war commission against corruption as people will otherwise raise questions against the Modi government in 2019. Swamy also said that there were some in BJP who were not really interested in fighting corruption.
Swamy took all credit for initiating the 2G scam case through a letter that he wrote to then PM Manmohan Singh. After Singh did not take action, Swamy said he approached higher courts to get thing moving. Calling the judgement given by the special CBI court earlier in the day: bad, Swamy said that it should be appealed in the higher court. “Today’s judgment is a very bad judgement, this must be appealed in higher court,” he added. “Judge says earlier there was a lot of enthusiasm, but later it became worse and worse. Judge also said counsels were lackadaisical. This is a big condemnation of the Govt’s controlling of the case,” Swamy added. He also said, the only reason that the case acquired traction initially was because he himself was fighting the case and that later he was sidelined by the norms.
Talking about the former AG Mukul Rohatgi, Swamy said that he had opposed the former’s appointment as AG since he had appeared for some of the accused companies. “Former AG Mukul Rohatgi has welcomed this verdict, I had written to PM opposing his appointment as AG. Rohatgi had appeared for some of the accused companies,” he said.
Earlier in the day, CBI had said that it would file an appeal against the 2G scam case verdict by a special court, which acquitted all the 16 accused rejecting the case presented by the agency. “The judgement relating to the 2G scam case of today has been prima facie examined and it appears that the evidence adduced to substantiate the charges by the prosecution has not been appreciated in its proper perspective by the learned court. The CBI will be taking necessary legal remedies in the matter,” CBI spokesperson Abhishek Dayal said.
Former telecom minister A Raja and DMK MP Kanimozhi were today acquitted by the special court in the 2G spectrum scam case. Fifteen other accused in the case and three companies were also acquitted.
Swamy shared confidence that he will ensure conviction for all the high and mighty architect of 2G scam in the higher courts wherein CBI & ED will file an appeal.
In the previous Article, I discussed about the applicability of the provisions of Limitation Act, 1963 in respect of the proceedings under the Insolvency and Bankruptcy Code, 2016 (IBC) before the Adjudicating Authority, which is Hon’ble National Company Law Tribunal (NCLT) and suggested that since NCLT is duty bound to fol- low the principles of natural justice and the rules framed for its working under the IBC and the Companies Act, 2013 and it will be appropriate for NCLT as ‘Adjudicating Authority’ to follow the principles of public policy that enforcement of rights and obligations must not be permitted to remain influx and indefinite period of time keeping in view the provisions of Limitation Act, 1963 and which enshrine the aforesaid pub- lic policy as part of principles of natural justice.
Irrespective of the conclusion in the previous Article that Limitation Act, 1963 shall be applicable on the proceedings before the Hon’ble NCLT even if the said section 433 of the Companies Act, 2013 would not have been made applicable on proceedings under Insolvency and Bankruptcy Code, 2016, there is another very important aspect which needs academic discussion as to whether what is the true meaning and scope of the word ‘debt’ in true commercial sense as defined under the In- solvency and Bankruptcy Code, 2016.
Such academic discussion assumes importance in view of various recent judgements/orders passed by the Hon’ble National Company Law Appellate Tribunal, New Delhi (NCLAT), where it is categorically held that provisions of ‘Limitation Act, 1963’ are not applicable to the proceedings under the IBC. For the paucity of space, I have not reproduced the observations in all such cases, but just summarised the said judgements and made some suggestions for further consideration:
In speculam Plast Pvt. Ltd. vs. PTC Techno Pvt. Ltd., the Hon’ble NCLAT observed as under:
The question that arises for determination in these appeals is:-
“Whether Limitation Act, 1963 is applicable for triggering ‘Corporate Insolvency Resolution Process’ under Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as “I&B Code”)?”
In answering the above question which was framed by the Hon’ble NCLAT, it held as under:
“For determination of the issue, it is to be noticed as to whether ‘I&B Code’ is a ‘self- contained Code’ or not.”
The Hon’ble NCLAT then relied upon many observations of Hon’ble Supreme Court of India in ‘M/s. Innoventive Industries Ltd v. ICICI Bank & Anr’, 2017 SCC OnLine SC 1025’ and on the basis of the said observations in the aforesaid case, the Hon’ble NCLAT then examined as to whether the provisions of Limitation Act, 1963, which is general legislation on the law of limitation, shall govern the proceedings of initiation of corporate insolvency resolution process and thereafter under the IBC.
Relying upon the judgements of Hon’ble Supreme Court of India in the case of ‘Mukri Gopalan v. Cheppilat Puthanpuravil Aboobacker (1995) 5 SCC 5’, and ‘Hukumdev Narain Yadav v. Lalit Narain Mishra (1974) 2 SCC 133’, it held that “from the decision of Hon’ble Supreme Court in ‘Hukumdev Narain Yadav v. Lalit Narain Mishra (1974) 2 SCC 133’, it is clear that even if there exists no express exclusion in the special law, the court reserves the right to examine the provisions of the special law, to arrive at a conclusion as to whether the legislative intent was to exclude the operation of the Limitation Act, 1963 or not.”
The Hon’ble NCLAT then goes to great length to examine various provisions of the IBC to reach a conclusion that legislature intent is to exclude the provisions of Limitation Act, 1963 from the proceedings under IBC. The Hon’ble NCLAT then examined the issue of stale claim and effect of delay and laches in filing the proceedings under the IBC, based on such a claim and observed that:
“Learned Amicus Curiae rightly contended that there should be a time limit for raising claim, including money claim. In this regard, it is desirable to refer the definition of ‘Debt’ and ‘Default’ as defined in sub-section (11) and (12) of Section 3 of the ‘I&B Code’, and quoted below: –
“3(11) “debt” means a liability or obligation in respect of a claim which is due from any person and includes a financial debt and operational debt;
3(12) “default” means non-payment of debt when whole or any part or instalment of the amount of debt has become due and payable and is not repaid by the debtor or the corporate debtor, as the case may be”
From the aforesaid definition, it is clear that ‘debt’ is a liability or obligation in respect of a claim which is due from any person and includes a ‘Financial Debt’ and ‘Operational Debt’. It is further clear that when whole or any part or instalment of the amount of debt has become due and payable and is not repaid by the debtor or the ‘Corporate Debtor’, it amounts to ‘default’.
Now, the question arises, whether a person can claim any amount due from another, a ‘Corporate Debtor’ after long delay on the ground that Limitation Act, 1963 is not applicable?
To decide the aforesaid issue, it is necessary to notice the Doctrine of Limitation and Prescription, as held by jurists and Hon’ble Courts. The Doctrine of Limitation and Prescription is based on two broad considerations.
First, there is ‘a presumption that the right not exercised for a long time is non-existent and second that the object of fixing time limit for litigation is based on public policy, fixing a life span of legal remedies for the purpose of general welfare.
…………………..”Further, on the basis of ‘Salmond; jurisprudence, 12 Ed and judgements of Battley vs. Faulker (1820) 3 B & Ald 288 and Rajider Singh vs. Santa Singh, AIR 1973 SC 2537, and N. Balakrishnan v M.A. Krishnamurthy, (1988) 7 SCC 123, it held that,
“in view of the settled principle, while we hold that the Limitation Act, 1963 is not applicable for initiation of ‘Corporate Insolvency Resolution Process’, we further hold that the Doctrine of Limitation and Prescription is necessary to be looked into for determining the question whether the application under Section 7 or Section 9 can be entertained after long delay, amounting to laches and thereby the person forfeited his claim. If there is a delay of more than three years from the date of cause of action and no laches on the part of the Applicant, the Applicant can explain the delay. Where there is a con- tinuing cause of action, the question of rejecting any application on the ground of delay does not arise.Therefore, if it comes to the notice of the Adjudicating Authority that the application for initiation of ‘Corporate Insolvency Resolution Process’ under section 7 or Section 9 has been filed after long delay, the Adjudicating Authority may give opportunity to the Applicant to explain the delay within a reasonable period to find out whether there are any laches on the part of the Applicant. The stale claim of dues without explaining delay, normally should not be entertained for triggering ‘Corporate Insolvency Resolution Process’ under Section 7 and 9 of the ‘I&B Code’. However, the aforesaid principle for triggering an application under Section 10 of the ‘I&B Code’ can- not be made applicable as the ‘Corporate Applicant’ does not claim money but prays for initiation of ‘Corporate In- solvency Resolution Process’ against itself, having defaulted to pay the dues of creditors. In so far it relates to filing of claim before the ‘Insolvency Resolution Professional’, in case of stale claim, long delay and in absence of any continuous cause of action, it is open to resolution applicant to decide whether such claim is to be accepted or not, and on submission of resolution plan, the Committee of Creditors may decide such question. If any adverse decision is taken in regard to any creditor disputing the claim on ground of delay and laches, it will be open to the aggrieved creditor to file objection before the Adjudicating Authority against resolution plan and for its necessary correction who may decide the same in accordance with the observations as made above.”
The aforesaid observations make it clear that Hon’ble NCLAT decided that IBC is a complete code by itself and it by implied legislative intent exclude the applicability of the Limitation Act, 1963. It is also made clear that delay and laches beyond a reasonable period of above 3 year in filing application for trigging initiation of Corporate In- solvency Resolution Process may be a ground for dismissal of such petition in given circumstances, if delay and laches are not explained to the satisfaction of the Adjudicating Authority. However in this regard it not only contradicted itself from other observations, but also made a sharp departure from these ob- servations in case of section 10 petition by corporate debtor itself.
It may be noted that ‘Speculam Plast Pvt. Ltd.’ was then followed by Hon’ble NCLAT in deciding more appeals, namely Ellora Paper Mills Ltd. & Anr vs. Ajitnath Steels Pvt. Ltd.; Sanjay Bagrodia vs. Sathyam Green Power Pvt. Ltd. and Labdhi Enterprises vs. Baramati Agro Pvt. Ltd.
From the aforesaid it is clear that one issue which was neither raised nor answered, still needs consideration. It is whether ‘bad debt’, ‘dead debt’, ‘unenforceable debt’ or ‘unrecoverable debt’, can be used as ‘financial debt’ and ‘operational debt’, to initiate corporate insolvency resolution process (CIRP) under IBC or default can occur for not praying such ‘debt’ if any demand is raised in respect thereto. In my personal opinion, the question framed in the above cases was itself incorrect and hence conclusion reached is also incorrect in law, particularly in view of many judgements of the Hon’ble Supreme Court and many high courts, where it was clearly held that a ‘debt’ which is not enforceable in law or fact cannot be revived for the purposes of ‘winding up’ proceedings under the provisions of Companies Act, 1956. There are no two opinions that ‘winding up proceedings’, like ‘initiation of corporate insolvency resolution process’ are also not proceedings for recovery of a debt and that if corporate insolvency resolution process (CIRP) fails, then corporate debtor must be ordered to be liquidated under the provisions of IBC, like ‘final winding up order’, leading to distribution of assets of the corporate debtor to its all stakeholders. It may also be noted that, whereas the Hon’ble High Court, in winding up proceedings had the discretion to finally winding up the company or not, there is now compulsory liquidation of corporate debtor if corporate in- solvency resolution process fails for any reason. Hence the ultimate net result of both processes was and is the same. In my opinion, it will be commercial ab- surdity and far from the truth to state that any person who files a claim before Insolvency Resolution Process (IRP) does not wish the recovery of that claim by seeking repayment under CIRP or under liquidation process.
In view of the above, the following observation of the Hon’ble Supreme Court and Hon’ble Delhi High Court are very apt to reproduce, regarding the meaning and scope of ‘debt’ even in the proceedings which are not recovery proceedings, like winding up and CIRP under the IBC.
In Karnataka Steel & Wire Products and Ors. vs. Kohinoor Rolling Shutters & Eng. Works and Ors., the Hon’ble Su- preme Court of India held that;
……………………………. In the impugned judgment, the Full Bench of the Karnataka High Court has recorded its conclusion that the provisions contained in Section 458A of the Companies Act does not confer a fresh cause of action and, therefore, if the time for the claim is already barred under the relevant provision of the Limitation Act, then the appointment of official liquidator on an application being filed for winding up of the company, would not revive the barred date. It appears that the aforesaid view of the Karnataka High Court is in agreement with the decision of the Madras High Court in 63 Company Cases 749 and is in variance with the two Full Bench decisions, one of Delhi High Court in MANU/DE/0038/1978: AIR1978Delhi158 : AIR1978Delhi158 and the other of Kerala High Court in MANU/KE/0009/1989 : AIR1989K- er41 : AIR1989Ker41 . In the absence of any authoritative pronouncement of this Court on the question, it would, therefore, be necessary to examine the different views expressed by different High Courts as well as the relevant pro- visions of the Companies Act, and to find out which view is correct.
2. Under the provisions of the Com- panies Act, a winding up proceeding commences by presentation of a peti- tion as provided under Sub-section (1) of Section 441 of the said Act and at any time, after the presentation of a winding up petition, the Court may appoint the official liquidator. Under Section 446 of the Act, once an official liquidator is appointed, then all legal proceedings against the company can be proceeded with only with the leave of the Company Judge and subject to such terms as the Company Court imposes. Under Sub-section (2) of Section 446, it is the winding up Court which gets the jurisdiction to entertain any suit or proceeding by or against the company as well as any claim made by or against the company. Section 458A merely excludes the time in computing the period of limitation for any claim. The aforesaid section is extracted herein-below in extenso for better appreciation of point in issue:
“Section 458A. Notwithstanding anything in the Indian Limitation Act, 1908 (9 of 1908) or in any other law for the time being in force, in computing the period of limitation prescribed for any suit or application in the name and on behalf of a company which is being wound up by the Court, the period from the date of commencement of the winding up of the company to the date on which the winding up order is made (both inclusive) and a period of one year immediately following the date of the winding up order shall be excluded.”
In the case of Faridabad Cold Storage & Allied Industry v. official Liquidator of Ammonia Supplies Corpn. (P) Ltd. MANU/ De/0038/1978 : AIR1978 Delhi158 , the question for consideration was as to what is the period of limitation for a claim filed under Section 446(2) of the Companies Act and what is the starting point of the said period of limitation. It was held by the Full Bench of Delhi High Court that any such application in respect of a claim filed under Section 446(2) of the Companies Act is covered by the residuary article under Article 137 of the Limitation Act and the period of limitation is three years form the date when the right to apply accrues. The Court further held that the right to file a claim petition under Section 446(2) in respect of a claim enforceable at law on the date of the winding up order, arises on the date the winding up order is passed. The period of limitation of three years would, therefore, be from the date of the winding up order, after giving full effect to the provisions of, and the benefit of Section 458A of the Companies Act. The point in issue in case in hand is something different than the point that arose for consideration and was decided by the Delhi High Court. The order Judgment of the Delhi High Court in the case of R.C. Abrol & Co. Pvt. Ltd. v. A.R Chaddha & Co., MANU/DE/0039/1978 : AIR1978Delhi167 , the question of consideration was whether for an application under Section 446(2)(b) of the Companies Act, the provisions of Article 137 of the Limitation Act would apply or not and the High Court answered the same in the affirmative. That is not the dispute in the case in hand inasmuch as there is no dispute about the applicability of Article 137 of the Limitation Act to an application filed for enforcement under Section 446(2)(b) of the Companies Act. So far as the Judgment of Kerala High Court is concerned, in the case of K.P. Ulahannan and Ors. v. The Wan- door Jupiter chits (P) Ltd. , the question for consideration was whether the time prescribed under Section 458A of the Companies Act would be excluded for computing the period of limitation for a claim petition being filed under Section 446(2)(b) of the Companies Act read with Article 137 of the Limitation Act. In the aforesaid case, the Full Bench of Kerala High Court came to hold that the starting point of limitation for claim under Section 446(2)(b) is the date on which the winding up is passed or a provisional liquidator is appointed and Article 137 of the Limitation Act applies to such proceedings. It further held that the effect of Section 458A of the Companies Act is that the period from the date of commencement of winding up of the company to the date on which the winding up order is made and a further period of one year are to be excluded in computing the period of limitation. But where a claim which was barred on the date and winding up petition is filed, would revive on account of Section 458A of the Companies Act was never raised or considered in the aforesaid case. In a latter decision of the Delhi High Court however in the case Liberty Finance Pvt. Ltd (In liquidation) v. Pandit Radha Mohan and Ors. MANU/DE/0080/1978 , Ranganthan J, as he then was, considered the question, which is the subject matter of consideration in the case in hand and held that the expression “any claim” occur- ring in Section 446(2)(b) of the Companies Act means, “a claim which is legally enforceable and, therefore, a claim which had become time barred on the date of presentation of the winding up petition cannot be described as a legally enforceable claim and the provisions of Section 446(2)(b) do not enable the official liquidator to file or receive claims which had been quietened by the lapse of time.” Where there is an enforce- able claim as on the date of the winding up petition, the official liquidator can make an application under Section 446(2) and such an application will attract the provision of Article 137 of the Limitation Act. It was further held that reading Section 458A of the Companies Act and Article 137 of the Limitation Act together, such an application by the official liquidator should be filed within a period of four years from the date of the winding up order. To the same effect is the Judgment of the Punjab and Haryana High Court in the case of Maruti Limited (In Liquidation) and Anr. v. Parry and Company Ltd., 1989 CC 309.
3. On a plain reading of the provisions contained in Section 458A of the Companies Act, it is crystal clear that the aforesaid provision merely excludes the period, during which a company was being wound up by the Court from the date of the commencement of the winding up till the order of winding up is made and an additional period of one year immediately following the date of the winding up. In other words, in respect of a legally enforceable claim, which claim could have been made by the company on the date on which the applications for winding up is made, could be filed by the official liquidator by taking the benefit of Section 458A of the Companies Act and getting the period of four years to be excluded from the period of three years, as provided under Article 137 of the Limitation Act.
The Legislature, by way of an amendment, brought into force the provisions of Section 458A, so that in official liquidator, who is supposed to be in custody of the assets and liability of the company, would be able to file a claim on behalf of the company, (SIC) legally enforceable on the date of the winding up, after excluding the period, indicating under Section 458A of the Companies Act, so that the company or its shareholders will not suffer any loss. But by no stretch of imagination, the said provisions contained in Section 458A can be construed to mean that even a barred date or a claim which was not enforceable on the date of the winding up, would stand revived, once a winding up application is filed and order is made by virtue of Section 458A of the Companies Act. We, therefore, affirm the view taken by the Karnataka High Court under the impugned Judgment and dismiss these appeals. There will be no orders as to costs.
The Hon’ble Delhi High Court, in CIt vs. Chipsoft technology Pvt. Ltd. has held as under:
“8. Two aspects are to be noticed in this context. The first is that the view that liability does not cease as long as it is reflected in the books, and that mere lapse of the time given to the creditor or the workman, to recover the amounts due, does not efface the liability, though it bars the remedy. This view, with respect is an abstract and theoretical one, and does not ground itself in reality. Interpretation of laws, particularly fiscal and commercial legislation is increasingly based on pragmatic realities, which means that even though the law permits the debtor to take all defences, and successfully avoid liability, for abstract juristic purposes, he would be shown as a debtor. In other words, would be illogical to say that a debtor or an employer, holding on to unpaid dues, should be given the benefit of his showing the amount as a liability, even though he would be entitled in law to say that a claim for its recovery is time barred, and continue to enjoy the amount. The second reason why the assessee’s contention is unacceptable is because with effect from 1-4-1997 by virtue of Finance Act, 1996 (No.2), an Explanation was added to Section 41 which spells out that “loss or expenditure or some benefit in respect of any such trading liability by way of remission or cessation thereof” shall include the remission or cessation of any liability by a unilateral act by the first mentioned person under clause”. The expression “include” is significant; Parliament did not use the expression “means”. Necessarily, even omission to pay, over a period of time, and the resultant benefit derived by the employer/assessee would therefore qualify as a cessation of liability, albeit by operation of law.
9. The submission of the assessee that no period of limitation is provided for under the Industrial Disputes Act, as a result of which it is exposed to liability at any time, is insubstantial and unpersuasive. This is because in The Nedungadi Bank Ltd. vs K.P. Madhavankutty MANU/SC/0049/2000 : AIR 2000 SC 839 the Supreme Court held that even though under the Act no period of limitation has been prescribed, a stale dispute one where the employee approaches the forum under the Act after an inordinate delay cannot be entertained and adjudicated. In view of the foregoing reasons, the question of law is answered in the affirmative, in favour of the revenue, and against the assessee; consequently the orders of the Commissioner (Appeals) and the impugned order of the ITAT are hereby set aside. The order of the Assessing Officer is hereby restored. The appeal is allowed in the above terms without any order on costs.”
From the aforesaid it is clear that a ‘debt’ which is rendered unrecoverable under the provisions of Limitation Act, cannot be claimed in commercial sense and that such debt can be written off as bad debt and even form part and parcel of profit and loss of a commercial enterprises for the purpose of Income Tax and Companies Act. Now reverting to the provisions of IBC it may be noted that pursuant to the provisions of section 3(11) of the IBC, debt means a liability or obligation in respect of a claim which is due from any person and includes a financial debt and operational debt. The word ‘due’ used in the definition of ‘debt’ signifies that the debt shall be an enforceable debt. In other words, the debt shall be legally due and recoverable. The said intention of legislature becomes clear from the definition of ‘default’ provided in section 3(12) of the IBC. In terms of the provisions of Section 3(12) of the IBC, default means non-payment of debt when whole or any part or instalment of the amount of debt has become due and payable and is not repaid by the debtor or corporate debtor, as the case may be. Hence the word ‘due’ signify that the debt shall be legally enforceable against the corporate debtor and the word ‘payable’ signifies that the debt shall be recoverable in fact and in law. In other commercial sense it should be ‘alive’ and ‘living’ debt. In this regard, the following words of the Hon’ble Supreme Court in the case of M/s Innovative Industries require special attention of one and all;
“It is at the stage of Section 7(5), where the adjudicating authority is to be satisfied that a default has not occurred in the sense that the “debt”, which may also include a disputed claim, is not due. A debt may not be due if it is not payable in law or in fact.”
Accordingly, the question here arises is that can the debt shall be considered as duly recoverable for an indefinite period of time for the purpose of the proceedings under the IBC. If the rationale of the judgement passed in Speculam Plast Pvt. Ltd. vs. PTC Techno Pvt. Ltd. is to be followed then a holder of an unpaid debt which became due and payable 3 years or more in the past but not enforced in law, in presenty can also be used as ‘financial debt’ or ‘operational debt’ to initiate proceedings under IBC and as a result of the same, the Adjudicating Authority will entertain such petitions under IBC which debt otherwise in law are unrecoverable claims, dead debts and lifeless, unenforceable claims, under the law of limitation. This certainly can not be the intention of the parliament to make dead debt alive and enforceable for the purposes of IBC, nor is such interpretation permissible in law.
It is a serious question to ponder as to whether a person who cannot claim the amount of his debt by filing a suit for recovery because his debt is debarred by law of limitation, can be allowed to file a petition under IBC even as his claim of debt is not legally recoverable due to the law of limitation and enjoy the satisfaction of such a claim either as part of CIRP or under the liquidation if CIRP fails for any reason. A debt which becomes due shall be considered as legally payable or recoverable within the time limit prescribed under the agreement executed for such debt transaction and, if such time limit is not prescribed under such agreement, then the same shall be recoverable within the reasonable period of time. What shall be considered as reasonable period of time is prescribed under the Limitation Act, 1963 and hence the same shall be followed. A debt, the recovery of which is barred by limitation, cannot be considered as legal debt for the purpose of proceedings under IBC as such debt has no longer remained payable. It is neither due nor repayable. It cannot satisfy the requirement of ‘default’ which is essential requirement of triggering corporate insolvency resolution process, under the provisions of sections 7, 9 or 10 of IBC.
Even under the earlier Companies Act, 1956, in a petition of winding up on the ground of inability to pay debt, the debt which were time barred were not considered even though there is no specific provisions under the said Act which provides about the applicability of Limitation Act, 1963 on the proceedings of winding up before the Hon’ble High Courts. It is also pertinent to note here is that the Companies Act, 1956 also uses the word ‘due’ and ‘payable’ which were tested and interpreted by the various Hon’ble High Courts from time to time. In various judgements passed by the Hon’ble High Courts of respective states, it has been held that a creditor whose debt is barred by limitation cannot file a petition for winding up of a company on the ground of its in- ability to pay debt since his debt is not legally recoverable.
In Interactive Media And … vs Go Airlines Limited, the Hon’ble Delhi High Court has held that a winding up petition will be maintainable when a company is unable to pay the debt which is due and payable. The debt should be one which is legally recoverable and is not barred by the law of limitation.
In another case of Niyogi Offset Printing Press Limited versus Doctor Morepen Limited, (2009) 149 Company Cases 467, it was held that “27. The claim of the petitioner for recovery of the amount has become barred by time. If the petitioner files a suit for recovery of the said amount, the suit will be dismissed as barred by time. If the claim of the petitioner to recover the amount has become barred by time, it will not be appropriate to initiate the process of winding up of the respondent company. Under Section 433(e) of the Companies Act, 1956 the machinery for winding up cannot be allowed to be utilized merely as a means for realizing debts due from a company which is also barred by time. Consequently there are no grounds to initiate the winding up proceedings against the respondent company. The petition, therefore, is without merit is liable to be dismissed. The petition, therefore, is dismissed.”
In another case of vijayalakshmi Art Productions vs vijaya Productions Pvt. Ltd., 1997 88 CompCas 353 Mad, 1996 (2) CTC 396, the Hon’ble Madras High Court also held that:
“In the summary enquiry under section 433 at the stage of admission before deciding as to whether winding up proceedings should be initiated the court to ascertain whether, interalia, the claim made by the creditor is barred by limitation or whether it is legally enforceable. If the claim made by the creditor is on the face of it not one which can be en- forced, it is unnecessary to examine as to whether the claim is a genuine claim, and as to whether the respondent has a bonafide and reasonable defence on the merits to the claim. The right to apply for winding up under section 439(b) is a right conferred on the credits and not on any person, however anxious that person may be, to have the company wound up.”
What was true in commercial world in the case of winding up petition under section 433(e) of the Companies Act, 1956 should be true for the proceedings under IBC. Under the Companies Act, 1956, the debt which were ‘due and payable’ was the basis for determining the filing of winding up petition and similarly, under the IBC, a default, on the occurrence of which proceedings under IBC can be initiated, is said to be made in payment of debt when there is non- payment of amount which has become ‘due and payable’. A debt when become payable and not demanded within the time period prescribed, cannot be claimed from the creditor by filing a case before the adjudicating authority. The debt of such person cannot be considered for payment even at the time of liquidation of such company and hence shall also not been considered as ‘financial debt’ or ‘operational debt’ for the purpose of initiation of IBC proceedings. It is my fervent plea that issue be correctly examined on the basis of commercial reality and on the hypothetical basis. In my personal view there is nothing which is self sufficient and can operate in vacuum, even if it is a code by itself. IBC is also another law of the land like others and must pass the test of ground reality and commercial wisdom and public policy.
(The writer is a senior Advocate & president, NCLT Bar Association New Delhi)
The SC ruling will go a long way in stopping child marriages
The Supreme Court must be congratulated for its landmark ruling that criminalizes men having non-consensual marital sex with girls as young as 15. This ruling is bound to deflate the pernicious argument that tradition is sacrosanct and must be upheld even when it heinously throttles the life and livelihoods of the voiceless and the most marginalized. The same was true when we battled Sati and the same is true now.
Unimaginably the subsequent governments have opposed this social trans-formative ruling with harrowing and hollow arguments like- child marriages were a reality in India and that “the institution of marriage must be protected. Otherwise, the children from such marriages will suffer.” The Centers position also exposed their devious position of allowing marital rape of minors in the garb of the ‘sanctity of marriage’. This is truly unacceptable from a democratically elected government which should aim at crusading against social ills that plague our society and not protect them.
This landmark ruling comes as a respite to several girls who were forced into child marriages and have thus faced countless forms of violence and strangulating oppression relentlessly throughout their lives. There is enough evidence to show that the mar- ital lives of children are surrounded by a noxious environment of humiliation, oppression and loneliness. The young child is forced to comprehend this as destiny and she resigns to feelings of dire anxiety and extreme hopelessness. How long would this nation have tolerated this physiological and psychological scarring of its young?
Even with all these obvious perils and in spite of being made illegal, the heinous practice of child marriage continues to flourish under the patronage of social bigotry and the nexus it enjoys with the political class- which was palpable in the government’s ambiguous stand. Instead of regretting to the fact that it had miserably failed in preventing child marriages the government stood in the court to slyly protect it.
This landmark ruling has adeptly exposed this unholy nexus and their evil intention of using tradition as a fig leaf to conceal a horrendous and oppressive practice, at the same time providing respite to millions and paving way for a modern India. The judgement’s like these that will strengthen the idea of India which continues to plummet down on the Human Development Index. The court has done a fantastic job and now we as citizens should resolve that this landmark judgement is implemented in every nook and corner of our country.
-By Deana Uppal
New Delhi: Justice Dipak Misra, who led the Supreme Court bench that con- firmed death to four convicts in the Nirbhaya gang-rape case in May this year, will succeed Chief Justice JS Khehar as the next Chief Justice of India.
Justice Misra was sworn in as the 45th Chief Justice of India at a brief ceremony in the Darbar Hall of Rashtrapati Bhavan. President Ram Nath Kovind administered the oath of office to Justice Misra.
Chief Justice Misra will hold office for the next 13 months, till 2 October 2018. As per the established practice, Chief Justice Khehar had had last month recommended Justice Misra’s elevation as his successor.
Justice Misra was also among the three judges who were up all night in July 2015, giving a historic hearing to decide on terrorist Yakub Memon’s last minute appeal against his hanging. Memon was convicted in 1993 Mumbai blasts, in which 257 people were killed. It was Justice Misra who announced the court’s decision at 5 am: “Stay of death warrant would be a travesty of justice. The plea is dismissed,” he said. Memon was hanged two hours later.
Chief Justice of the Delhi High Court before he was elevated as a Supreme Court judge in 2011, Justice Misra had been described as a “pro citizen judge” by his peers. It was, for instance, Justice Misra who had ordered the police to upload a copy of the police complaints registered by the police, or First Information Report, on their website within 24 hours so that the accused and victim did not have to run around for a copy.
Back in the high court, the judge was also known to entertain public interest litigation but cracked the whip when people tried to waste his court’s time, ruling the court wasn’t a laboratory where people could come to play at their own whim and fancy. Justice Misra, 64, assumes office following the retirement of Justice JS Khehar as the Chief Justice of India yesterday.
-By Vishnu sharma
Recently, in the case of Neelkanth Township and Construction Pvt. Ltd. Vs. Urban Infrastructure Trustees Limited, it has been held by Hon’ble National Company Law Tribunal (NCLAT) that Limitation Act, 1963 is not applicable to the proceedings under Insolvency and Bankruptcy Code, 2016. In the words of Hon’ble NCLAT, “The next ground taken on behalf of the appellant is that claim of the respondent is barred by limitation, as the debenture were matured between the year 2011-2103, is not based on Law. There is nothing on the record that Limitation Act, 2013 is applicable to I & B Code. Learned Counsel for the appellant also failed to lay hand on any provisions of I & B Code to suggest that the Law of Limitation Act, 1963 is applicable. The I & B Code, 2016 is not an Act for recovery of money claim, it relates to initiation of Corporate Insolvency Resolution Process. If there is a debt which includes interest and there is default of debt and having continuous course of action, the argument that claim of money by Respondent is barred by Limitation cannot be accepted.” This judgement passed by Hon’ble NCLAT has raised an interesting question of law for extensive debate and discussion. The question is whether Law of Limitation Act, 1963 is applicable to the proceedings under Insolvency and Bankruptcy Code, 2016, particularly in view of the order dated 23.08.2017, passed by the Hon’ble Supreme Court in civil Appeal No. 10711 of 2017, titled as ‘Neelkanth Township and Construction Pvt. Ltd. vs. Urban Infrastructure Ltd, as under:
“Heard the learned Senior Counsel appearing for the parties. We do not find any reason to interfere with the order dated 11.8.2017 passed by National Company Law Appellate Tribunal, New Delhi. In view of this, we find no merit in the Appeal. Accordingly, the appeal is dismissed, keeping the question of law viz ‘whether Limitation Act would apply to this proceeding’ open.”
This Article is an attempt to analyse the judgements passed by the Hon’ble National Company Law Tribunal (NCLT) and Hon’ble National Company Law Appellate Tribunal (NCLAT) and judgements of the Hon’ble Supreme Court and reach some conclusion in this regard.
The Insolvency and Bankruptcy Code, 2016 (“IBC” or “The Code”) has been enacted by the Parliament in order to consolidate and amend the laws relating to insolvency and bankruptcy of corporate and individuals. IBC has repealed the Presidency-Town Insolvency Act, 1909 and Provincial Insolvency Act, 1920 and amended several enactments including Companies Act, 2013. The Code aims to re-organization and insolvency resolution of corporate persons, partnership firms and individuals in a time bound manner for maximization of value of assets of such persons, to promote entrepreneurship, availability of credit and balance the interests of all the stakeholders including alteration in order of priority of payment of Government dues, and for matters connected therewith or incidental thereto.
Pursuant to the provisions of section 4 of IBC, matters relating to the insolvency and liquidation of corporate debtors shall be covered under IBC where the minimum amount of the default of debt occurred by corporate debtor is rupees one lakh. However, the central government may, by notification, specify the minimum amount of default of higher value which shall not be more than rupees one crores. Further pursuant to the provisions of section 6 of the IBC, where any corporate debtor commits a default, a financial creditor, an operational creditor or the corporate debtor itself may initiate corporate insolvency resolution process in respect of such corporate debtor in the manner as provided under the IBC.
Pursuant to the provisions of section 7, 8, 9 and 10 of the Code, an application for initiation of corporate insolvency resolution process can be filed by the financial creditor, operational creditor and corporate debtor, as the case may be, before the Adjudicating Authority in case of default in payment of debt. Pursuant to section 5(1) of IBC, adjudicating authority for the purpose of insolvency resolution and liquidation for corporate persons means National Company Law Tribunal (NCLT) constituted under section 408 of the Companies Act, 2013. The provisions of section 7, 8, 9 and 10 of the IBC read with Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, provide the process for filing of application for initiation of corporate insolvency resolution process and matter incidental and necessary thereto. However, the IBC is silent on applicability of Limitation Act, 1963 on the proceeding under IBC before the NCLT and various such other issues. Section 60(5)(c) of IBC confers power upon NCLT to entertain or dispose of any question of priorities or any question of law or facts, arising out of or in relation to the insolvency resolution or liquidation proceedings of the corporate debtor or corporate person under the code notwithstanding anything to the contrary contained in any other law for the time being in force. However, such power is, again, subject to the other provisions of the IBC and the Companies Act, 2013 and the rules made there under.
It is evident from the definition of ‘adjudicating authority’ NCLT is the creation of Companies Act, 2013 as the same is constituted under Chapter XXVII, section 408 of the Companies Act, 2013. Accordingly, NCLT is bound by the provisions of Chapter XXVII, section 408 to 434 of the Companies Act, 2013, to the extent the same are not in contradiction of the provisions of IBC. Even section 424 of the Companies Act, 2013, as amended by the provisions of Eleventh Schedule read with section 255 of IBC, provides that the Hon’ble NCLT and NCLAT shall have, for the purpose of discharging its function under the Companies Act, 2013 or under the provisions of IBC, the same powers as are vested in a civil court while trying a suit in respect of certain matter. The text of amended section 424 of the Companies Act, 2013 is as follows:
“424. Procedure before Tribunal and Appellate Tribunal”
(1) The Tribunal and the Appellate Tribunal shall not, while disposing of any proceeding before it or, as the case may be, an appeal before it, be bound by the procedure laid down in the Code of Civil Procedure, 1908, but shall be guided by the principles of natural justice, and, subject to the other provisions of this Act or of Insolvency and Bankruptcy Code 2016 and of any rules made there under, the Tribunal and the Appellate Tribunal shall have power to regulate their own procedure.
(2) The Tribunal and the Appellate Tribunal shall have, for the purposes of discharging their functions under this Act or under the Insolvency and Bankruptcy Code 2016, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 while trying a suit in respect of the following matters, namely:
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavits;
(d) subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872, requisitioning any public record or document or a copy of such record or document from any office;
(e) issuing commissions for the examination of witnesses or documents;
(f) dismissing a representation for default or deciding it exparte;
(g) setting aside any order of dismissal of any representation for default or any order passed by it exparte; and
(h) any other matter which may be prescribed.
(3) Any order made by the Tribunal or the Appellate Tribunal may be enforced by that Tribunal in the same manner as if it were a decree made by a court in a suit pending therein, and it shall be lawful for the Tribunal or the Appellate Tribunal to send for execution of its orders to the court within the local limits of whose jurisdiction, –
(a) in the case of an order against a company, the registered office of the company is situate; or
(b) in the case of an order against any other person, the person concerned voluntarily resides or carries on business or personally works for gain.
(4) All proceedings before the Tribunal or the Appellate Tribunal shall be deemed to be judicial proceedings with in the meaning of sections 193 and 228, and for the purposes of section 196 of the Indian Penal Code, and the Tribunal and the Appellate Tribunal shall be deemed to be civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.” From the above provisions it is clear that the Hon’ble NCLT and NCLAT, while dealing with any proceeding under Companies Act, 2013 or the IBC, is bound by the other provisions of IBC and even of the Companies Act, 2013 and the Rules framed there under as accepted by the Hon’ble NCLAT in the case of ‘Innovative Industries Ltd. vs. ICICI Bank and Anr and held that “As amended Section 424 of the Companies Act, 2013 is applicable to the proceeding under the I & B Code, 2016, it is mandatory for the adjudicating authority to follow the Principles of rules of natural justice while passing an order under I&B Code, 2016. Further, as Section 424 mandates the ‘Tribunal’ and ‘Appellate Tribunal’, to dispose of cases or appeal before it subject to other provisions of the Companies Act, 2013 or I & B Code 2016 such as, Section 420 o the Companies Act 2013 was applicable and to be followed by the Adjudicating Authority.”
The relevant para of the aforesaid judgement is as follows
“The learned Judges appear to have failed to notice that the delay in these petitions was more than the delay in the petition made in Bhailal Bhai’s case out of which Civil Appeal No. 362 of 1962 has arisen. On behalf of the respondents petitioners in these appeals (C.A. Nos. 861 to 867 of 1962) Mr. Andley has argued that the delay in these cases even is not such as would justify refusal of the order for refund. He argued that assuming that the remedy of recovery by action in a civil court stood barred on the date these applications were made that would be no reason to refuse relief under Art. 226 of the Constitution. Learned counsel is right in his submission that the provisions of the Limitation Act do not as such apply to the granting of relief under Art. 226. It appears to us however that the maximum period fixed by the legislature as the time within which the relief by a suit in a civil court must be brought 134-159 S.C. 18 may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Art. 226 can be measured. The Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the court to hold that it is unreasonable.
The period of limitation prescribed for recovery of money paid by mistake under the Limitation Act is three years from the date when the mistake is known. If the mistake was known in these cases on or shortly after January 17, 1956 the delay in making these applications should be considered unreasonable. If, on the other hand, as Mr. Andley seems to argue, the mistake was discovered much later, this would be a controversial fact which cannot conveniently be decided in writ proceedings. In either view of the matter we are of opinion the orders for refund made by the High Court in these seven cases cannot be sustained.”
In view of the above discussion and analysis, the judgements passed by the Hon’ble Supreme Court of India and the Hon’ble NCLT, Principal Bench, it will be more appropriate to take a view that pro- visions of Limitation Act, 1963 shall apply to the proceeding under IBC by virtue of section 433 of the Companies Act, 2013, since NCLT and NCLAT are the creation of the Companies Act, 2013 and hence will be governed by the relevant provisions of the Companies Act, 2013, to the extent the same are not in in consistence (section 238) with the provisions of IBC, particularly since the IBC is not silent on the aspects of limitation.
– By Dr Uk chaudhary
The International Court of Justice on Tuesday stayed the execution of Indian national Kulbhushan Jadhav, who has been sentenced to death by a Pakistani military court on charges of “spying”.
The order by the Hague-based International Court of Justice (ICJ) came a day after India approached it against the death sentence handed down to Jadhav by Pakistan’s Field General Court Martial last month, official sources said.
India, in its appeal to the ICJ, accused Pakistan of “egregious” violations of the Vienna Convention on Consular Relations and asserted that Jadhav was kidnapped from Iran where he was involved in business activities after retiring from the Indian Navy but Pakistan claimed to have arrested him from Balochistan on 3 March, 2016.
Reacting to the development, External Affairs Minister Sushma Swaraj said, “I have spoken to the mother of Kulbhushan Jadhav and told her about the order of President, ICJ under Art 74 Paragraph 4 of Rules of Court.” Swaraj said senior advocate Harish Salve was representing India before the ICJ in the Jadhav case.
ICJ President Ronny Abraham has reportedly written a letter to Pakistan government, asking it to act in such a way which would enable the implementation of any order the ICJ may issue in the case. India, in its appeal, contended that it was not informed of Jadhav’s detention until long after his arrest and that Pakistan failed to inform the accused of his rights.
It further asserted that, in violation of the Vienna Convention, the Pakistani authorities were denying India its right of consular access to Jadhav, despite repeated requests. “Referring to ‘the extreme gravity and immediacy of the threat that authorities in Pakistan will execute an Indian citizen in violation of obligations Pakistan owes to India’, India urges the Court to deliver an order indicating provisional measures immediately, ‘without waiting for an oral hearing’,” India’s appeal said.
Jadhav, 46, was given death sentence last month by the Field General Court Martial in Pakistan, evoking a sharp reaction in India which warned Pakistan of consequences and damage to bilateral ties if the “premeditated murder” was carried out.
In its application, India had also informed the ICJ that it learned about the death sentence against Jadhav from a press release. “India claims that ‘linking assistance to the investigation process to the grant(ing) of consular access was by itself a serious violation of the Vienna Convention’,” the ICJ release said. The ICJ said India urged it to restrain Pakistan from carrying out the death sentence, and direct Islamabad to take steps to annul the decision of the military court. Pakistan claims its security forces had arrested Jadhav from the restive Balochistan province on 3 March last year after he reportedly entered from Iran. It also claimed that he was “a serving officer in the Indian Navy.” Jadhav was sentenced to death for “espionage and subversive activities”.
India acknowledges that Jadhav had served with the Navy but denies that he has any connection with the government. India has also handed over to Pakistan an appeal by Jadhav’s mother, initiating a process to get his conviction overturned.
BY Opinion Express News Desk
PRINCETON :After a short term marriage of brutal abuse, involving Assault, Battery, Intentional Infliction of Emotional Distress, Civil Conspiracy, Conversion and Theft, the plaintiff, a young Indian woman who came to the United States on an H4 (Dependent)Visa immediately following an arranged marriage with her husband in India, filed a Complaint with the Middlesex County, New Jersey Superior Court for divorce and domestic torts. The defendants were her husband, father-in-law, and mother-in-law, and she won a significant 3-pronged Jury Verdict of more than six figures and was awarded more money than her official demand. Her attorney, Seema M. Singh, a well-known New Jersey consumer advocate, founder of the Asian Women’s Safety Net (a 501 (c)3) organization advocating for women victims of domestic violence) and human rights activist, grew up in India and knew quite well the traditional and deadly roots of the conflict that created such a catastrophic set of circumstances for her client.
“One thing that is sometimes forgot- ten in the quest to address human rights abuses- from voting rights infractions to unlawful detention of prisoners, there are always individual victims involved and legislation alone will seldom correct the injustice,” says Seema Singh. “With every litigation, we look for more than symbolic justice. We seek compensation to be immediate and meaningful.”
The abuses suffered by this plaintiff at the hands of her husband and in- laws were immediate upon boarding the plane, and unfortunately, typical of torture inflicted on Indian newlywed brides due to the impact of customs involving dowries, which were banned in India in 1961. A dowry, brought by the bride’s parents to the husband and his parents, is often considered a necessary component of the marriage con- tract. Too often, the law is still ignored, and a groom’s family remains involved in the dowry practice and its abuses. Unfortunately, dowry deaths are the most extreme punishment and it is calculated that “Indian dowry deaths” occur every 90 minutes. This fact illustrates why this domestic violence must be met with immediate remedies for those who experience even modest forms of harassment.Apart from this ultimate price of death, there are harsh conditions created for the bride if the bride’s family refuses to pay-starving, frequent beatings, being ‘jailed’ inside the home or being denied all contact with her birth family.All of these conditions happened to the plaintiff while imprisoned in her home. Essentially, the plaintiff was treated like an indentured servant and she lost almost 2/3 of her body weight. She was forced to put up with her new husband’s extra- marital affair with an old girlfriend; the mother-in-law’s consistently aggressive and incessant demands for a larger dowry and refusal to allow her to pursue further studies and to maintain intimate relations with her husband; and keeping her a prisoner in the home. Ultimately, the plaintiff was being abused by all 3 defendants who engaged in a pattern of physical, verbal and mental torture towards her.
Finally, she escaped with the one- way-ticket to India her husband had purchased for her previously as a threat to send her away if she did not comply with his and his mother’s wishes. After a period of healing herself physically, when Plaintiff returned to the United States to seek justice, she tapped into the resources offered by the Asian Women’s Safety Net ( www.asianwomenssafetynet.com ) and engaged Singh Law (www.ssinghlaw.com ) to represent her case. Over the course of 18 months, Singh Law employed various legal tools to vigorously represent their client.
“This victory sends a compelling message that the law will be respected in U.S. courts,” says Seema Singh. “I hope women and their families from India will hear that the best of our customs and traditions can be celebrated, but these outdated and abusive practices will not be tolerated. They have a choice.”
The plaintiff was awarded a Jury Verdict/Judgement against her husband and mother-in-law for assault, battery and intentional inflection of emotional distress. She was also awarded an additional Jury Verdict/ Judgement against her mother-in-law and father-in- law for theft and conversion. The divorce is now final.
Full details of the coverage of this case can be reviewed on the American Lawyer’s Media (www.alm.com ) Verdict Search (www.verdictsearch.com ) and Lexis Nexis.
Seema Singh, General Counsel and experienced Attorney, based in the U.S., with extensive experience guiding corporations operating domestically and internationally. Singh brings a breadth of experience to successfully meet the full range of challenges facing her clients in life and business. Law offices in New Jersey and New York. www.SSinghLaw.com
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