#Can NCLT help with company restructuring?

[legalfirmindia]

Unraveling Corporate Legal Complexities: Navigating NCLT for Your Business Success

Navigating NCLT for Your Business Success: The ever-changing landscape of Indian business throws a multitude of legal hurdles your way. In the midst of strategizing for market dominance and maximizing profits, navigating the labyrinth of corporate law can feel overwhelming. However, fret not! This is where Empower Legal steps in – your trusted companion on the path to business…

[kumard12]

Understanding Takeover Rules for Unlisted Companies: A 2020-2024 Perspective

In February 2020, Thinking Legal publishedan insightful analysis by Vaneesa Agrawal, founder of Thinking Legal law firm, detailing the Central Government's notification of takeover provisions for unlisted companies under the Companies Act, 2013. While these fundamental rules remain unchanged in 2024, business lawyers note that significant clarifications and ongoing discussions have shaped their implementation over the past four years.

The evolution of these provisions has been particularly noteworthy, business lawyers highlight. Especially in areas of valuation methodology, minority shareholder protection, and procedural requirements. The Ministry of Corporate Affairs has continued to provide guidance and clarifications, helping stakeholders navigate the complexities of these regulations while ensuring fair practices in corporate takeovers.

"The introduction of Section 230(11) of the Companies Act marked a transformative moment for corporate restructuring," notes Vaneesa Agrawal. "What we're seeing now is the evolution of these provisions through practical application and regulatory interpretation."

This article, therefore, examines the journey of these takeover rules from business lawyers’ perspective. The article also discusses the inception of these rules in 2020 to their current implementation in 2024, highlighting key clarifications, challenges, and ongoing discussions that continue to shape corporate restructuring practices in unlisted companies.

Core Framework and Recent Clarifications

The Ministry of Corporate Affairs (MCA), as highlighted by business lawyers across India, continues to emphasise the significance of these regulations while providing additional clarity on implementation. Under Section 230(11), shareholders holding at least 75% of shares can initiate takeover offers through the National Company Law Tribunal (NCLT). Business lawyers with expertise in this also note that the tribunal's decisions have created a more nuanced framework for evaluating takeover applications.

"What's particularly interesting is how the NCLT's interpretations have shaped the practical application of these rules," Vaneesa Agrawal, an expert business lawyer, explains.

Valuation Mechanisms and Current Discussions

Business lawyers expand that one of the most debated aspects in 2023-24 centres on valuation methodologies. The regulations require a registered valuer's report considering two key factors: the highest share price in the previous 12 months and the company's fair value. Additionally, business lawyers note that majority shareholders must deposit 50% of the consideration in a dedicated bank account.

"The ongoing discussions about valuation methods reflect the market's evolution," Vaneesa Agrawal, a seasoned business lawyer, points out. "We're seeing increased emphasis on transparency and the need for more sophisticated valuation approaches that account for modern business complexities."

Implementation Challenges and Emerging Solutions

Recent discussions, as highlighted by business lawyers, have also highlighted several practical challenges in implementing these rules. Many companies are exploring alternative approaches, such as capital reduction under Section 66 of the Act, particularly when complete minority squeeze-outs prove challenging.

"The market has revealed interesting patterns in how companies approach these regulations," observes Vaneesa Agrawal. "What's crucial is understanding how different sections of the Act can work together to achieve legitimate corporate objectives."

Evolving Minority Shareholder Protections

A significant focus of 2023-24 discussions has been the strengthening of minority shareholder protections. Business lawyers highlight that the NCLT has been actively refining its approach to evaluating takeover applications, ensuring that minority interests are adequately protected while facilitating necessary corporate restructuring.

"Recent NCLT decisions have provided valuable guidance on what constitutes fair treatment of minority shareholders."

- Vaneesa Agrawal, an expert business lawyer and founder of Thinking Legal law firm

Current Landscape and Future Outlook: Business Lawyer's Take

As of 2024, business lawyers point out several key developments that have emerged in the implementation of these rules:

Enhanced Scrutiny: The NCLT has developed more detailed criteria for evaluating takeover applications, focusing on fairness and transparency.

Valuation Standards: Ongoing discussions, as highlighted by business lawyers, centre on standardising valuation methodologies while maintaining flexibility for different business contexts.

Procedural Clarifications: The MCA has provided additional guidance on documentation requirements and application procedures.

Minority Rights: Business lawyers also note that the recent interpretations have strengthened the position of minority shareholders in appealing unfair takeover offers.

Alternative Mechanisms: The market has developed a better understanding of when to use different sections of the Act for corporate restructuring.

The rules continue to evolve through practical application and regulatory interpretation. Expert business lawyers note that while the basic framework remains unchanged, the understanding and implementation of these provisions have matured significantly since their introduction.

Looking Forward

As discussions continue into 2024, several key areas remain under active consideration:

Standardization of valuation methodologies

Enhancement of minority shareholder protection mechanisms

Streamlining of application procedures

Integration with other corporate restructuring provisions

Development of clear precedents through NCLT decisions

These ongoing discussions reflect the dynamic nature of corporate law and business lawyers' adaptation to evolving business needs.

"As the regulatory landscape continues to develop, both majority and minority shareholders benefit from clearer guidelines and more predictable outcomes in takeover situations."

- Vaneesa Agrawal, Thinking Legal

The success of these regulations, business lawyers emphasise, ultimately depends on maintaining a balance between facilitating necessary corporate restructuring and protecting minority interests. As implementation practices continue to evolve, the focus remains on ensuring fair, transparent, and efficient processes for all stakeholders involved in unlisted company takeovers.

[vishvaslawoffice]

Empowering Your Business Journey with Vishvas Law Offices

Welcome to Vishvas Law Offices, your trusted partner in navigating the intricate legal landscape of corporate affairs. In the bustling city of Delhi, where businesses thrive and competition is fierce, having a reliable legal ally can make all the difference. Let's explore how our specialized services can empower your business growth and ensure legal compliance every step of the way.

Navigating the NCLT with Confidence

When it comes to matters of insolvency and corporate restructuring, having a proficient NCLT Lawyer near me is crucial. At Vishvas Law Offices, we specialize in representing clients before the National Company Law Tribunal (NCLT) with expertise and diligence. Our team is dedicated to providing strategic counsel and robust representation, ensuring that your interests are protected and your objectives achieved.

Expert Advocacy at NCLAT

In the intricate realm of corporate law, having access to an experienced NCLAT Lawyer in Delhi can be a game-changer. At Vishvas Law Offices, our skilled advocates possess a deep understanding of the National Company Law Appellate Tribunal (NCLAT) and are committed to providing effective advocacy. Whether you're appealing a decision or seeking legal recourse, our team is here to navigate the complexities and secure favorable outcomes for your business.

Guidance Tailored for Startups

For startups embarking on their entrepreneurial journey, having a reliable Startup advisor is essential. At Vishvas Law Offices, we offer comprehensive legal support tailored to the unique needs of startups. From entity formation to drafting agreements and protecting intellectual property, our dedicated team is here to provide guidance and support every step of the way.

Streamlined Business Incorporation

Establishing a new business entity requires careful planning and execution. With the assistance of a skilled Business incorporation lawyer Delhi, you can navigate the incorporation process with confidence. At Vishvas Law Offices, we offer personalized guidance to ensure that your business is set up for success and complies with all regulatory requirements.

Trusted Partner in Corporate Law

In today's competitive business environment, having access to reliable legal counsel is essential. As a leading Company law firm Delhi, Vishvas Law Offices offers a wide range of legal services tailored to meet the diverse needs of corporations. Whether you're seeking assistance with corporate governance, regulatory compliance, or contractual matters, our team is here to provide expert guidance and support.

Proactive Legal Advisory Services

Timely legal advice can be the key to mitigating risks and seizing opportunities in the business world. At Vishvas Law Offices, we offer proactive Legal advisory services Delhi aimed at empowering businesses to make informed decisions. Our experienced advisors provide strategic insights and practical solutions to help you navigate legal complexities with confidence.

Navigating Mergers & Acquisitions with Ease

Mergers and acquisitions (M&A) are complex transactions that require careful planning and execution. With the assistance of a skilled Mergers & Acquisition lawyer, you can navigate these processes with confidence. At Vishvas Law Offices, our M&A specialists offer comprehensive support, from due diligence to negotiation and closing, ensuring a seamless and successful outcome for your business.

Ensuring Corporate Governance Compliance

Effective corporate governance is essential for maintaining transparency, accountability, and investor confidence. As a trusted Company Secretary near me, Vishvas Law Offices provides expert guidance on governance best practices and regulatory compliance. Our comprehensive services help businesses uphold integrity and navigate legal and regulatory challenges effectively.

Comprehensive Representation at NCLAT

Whether you're facing a legal dispute or seeking proactive legal counsel, Vishvas Law Offices is your trusted partner for comprehensive representation. Our skilled NCLAT Advocate services are tailored to meet your specific needs, ensuring that your rights are protected and your interests advanced. With our unwavering commitment to excellence, we strive to achieve the best possible outcomes for our clients.

Conclusion: Partnering for Success

In conclusion, Vishvas Law Offices is committed to empowering businesses to navigate the complexities of corporate law and achieve their growth objectives. With our expertise, dedication, and personalized approach, we serve as your trusted legal partner every step of the way. Contact us today to embark on a journey of legal excellence and business success!

[mnmlawpartners]

Debt Downturn? Don't Panic! Restructuring & Revival with NCLT || MandM Law Partners

Facing mounting debt and feeling overwhelmed? Remember, you’re not alone. This Legal Insights Tuesday, we’re diving deep into NCLT-led Restructuring & Revival, showing you how this important tool can help your business bounce back stronger.

Think of NCLT as a financial gym for companies. Through this process, you can:

Negotiate with creditors: Find new payment terms, debt forgiveness, or even convert debt into equity.

Sell assets: Strategically sell non-core assets to raise funds for debt repayment and reinvestment.

Attract new investors: Inject fresh capital to revitalize your business and fuel growth.

But how does it work?

Let’s break down the key stages of NCLT-led restructuring:

1. Initiation: Identify financial stress and consider NCLT as an option. Seek legal counsel from M&M Law Partners to guide you through the process.

2. Application: File an application with the NCLT, outlining your financial situation and restructuring plan. ⚖️

3. Moratorium: Get a temporary halt on legal proceedings against your company, allowing time for negotiations. ⏸️⏰

4. Resolution Professional: The NCLT appoints a professional to oversee the restructuring process and negotiate with creditors. ⚖️

5. Resolution Plan: Work with the Resolution Professional to develop a plan that addresses debt repayment, asset sales, and business revival strategies.

6. Creditor Vote: Creditors vote on whether to approve the plan or proceed with liquidation.

7. Implementation: Upon approval, implement the plan and work towards financial recovery.

For example: Company X faced significant debt due to a market downturn. Through NCLT-led restructuring, they negotiated new payment terms with creditors, sold non-core assets, and brought in a strategic investor. Today, Company X is thriving again, proving that early intervention and the right approach can lead to a successful comeback.

Remember, early action is key! Don’t wait until it’s too late. Contact M&M Law Partners today for a confidential consultation and explore your NCLT options. Together, we can help you navigate this process and get your business back on track. ☎️ Your Best Legal Partner is Here! #NCLT#InsolvencyLaw#BusinessLaw#DelhiLawyers#GurugramLawyers#MMLLawPartners

[finlender]

    Funding for OTS Settlement in Mumbai FinLender

With the understanding of the complexities involved in financial matters associated with business operations, Finlenders specialized and offered the Best Funding for OTS Settlement related to Funding for OTS Settlement in Mumbai. Our export financial analysts assess the various details associated with our clients’ businesses, and offer relevant solutions. This results, the operations, and growth of the business is affected as the entire focus of the borrower shifts from his business towards arranging for funds, and complying with the procedures, and regulations with respect to the consequences that follow. Our services are in conformation to the legal rules & regulations, and fulfill the needs of our clients.

OTS Settlement Companies in Mumbai

Finlender is the best OTS Settlement Companies in Mumbai that offers an opportunity to revive business, and credit rating for NPA accounts. We offer to restructure borrowing, and provide working capital for businesses having scope, and willingness to revive to normal status within a period of 12-24 months. We provide an exclusive set of services, where you can find investors, businesses to help review your business financially. We help you to develop your financial profile, and could probably save you from going to the bead rock of becoming an NPA.

OTS Settlement consultant in Mumbai

We have a wide network, and strong relationships with lending banks for OTS Settlement consultant in Mumbai. We believe in a complete package of financial consultancy, and our team takes initiative to coordinate with the banks, interact with the banking personnel, follow-up and ensure that all requirements, and queries are resolved. Our NPA Finance Services are exclusively working for the NPA Segment that also includes OTS Retrieval, Loan for OTS, OTS Solutions, OTS Takeover, Finance for OTS Loan, OTS Finance, OTS Finance, Finance Facility for OTA accounts, Transfer of NPA accounts. We allow you to transfer your OTA account to one of our lender companies so that you can have more time to pay off your debts, and also save your precious property from the bank NCLT Act.

Loan for OTS Settlement in Mumbai

Finlender are the Best Loan for OTS Settlement in Mumbai that can play a vital role in tightening your bank’s credit risks management system by providing assistance that includes assessing capital structure, assisting in business plan finalization, structuring the transaction to meet company requirement. Our company studies recovery potentials, and also possibilities of revival of units. We also explore all possibilities of recovery for banks. We also explore all possibilities of recovery for banks. We interact with the borrower & also suggest various ways for recovery. With experience & expertise of our team, we are confident of reducing NPA from our allotted portfolio.

READ MORE....NPA and OTS Finance Private Equity Project Finance Corporate Finance Company in India

[vjmglobal]

Pre-packaged insolvency resolution of MSMEs under IBC

The Central Government on 4th April 2021, promulgated the IBC Amendment Ordinance 2021, allowing a pre-packaged insolvency process for micro, small and medium enterprises (MSMEs), in unison with international best practices.

The ordinance in essence has amended the Insolvency and Bankruptcy Code 2016 allowing the central government to notify such pre-packaged process for defaults of not more than Rs. 1 crore to be initiated by the corporate debtor.

The main aim of the Ordinance is to provide relief to MSMEs by way of an alternative efficient process of insolvency, in a manner that is least disruptive to the continuity of their businesses.

As we know that the pandemic affected businesses and the economy at a large scale, the Government has taken several measures to mitigate the distress caused by the pandemic, including increasing the minimum amount of default for initiation of corporate insolvency resolution process to Rs 1 crore rupees and suspending the filing of applications for initiation of corporate insolvency resolution process regarding the defaults arising for one year beginning March 25th, 2020.  Such suspension has ended on March 24, 2021, itself.

1. What is the pre-packaged Insolvency resolution plan?

A pre-packaged resolution plan is essentially a form of restructuring that allows the creditors and debtors to work on an informal plan and then submit it for approval.

MSME businesses are usually managed by promoters and it is difficult to revive them after the management is expelled under the normal Corporate Insolvency Resolution Process (CIRP).

Under the new ordinance, participation of eligible existing promoters is encouraged, with the board continuing in control and the debtor proposing the base resolution plan, which then shall be put to competitive bidding through the Swiss challenge.

Thus Pre-packaged insolvency resolution will help the corporate debtors to enter into a consensual restructuring with creditors and address the entire liability side of the company.

2. Key features of the pre-packaged resolution are:

Approval required by not less than 66 percent of the financial creditors.

Pre-packaged insolvency resolution process to be completed within 120 days.

Management of the firm to continue to vest in the board of directors, subject to conditions.

Govt may specify default thresholds ( not more than Rs 1 crore) for pre-pac eligibility ( IBC has a threshold of Rs 1 crore and above )

3. Pre-pack insolvency resolution framework vs normal IBC process

The IBC currently stipulates a maximum of 270 days for the completion of the entire CIRP. Given that MSMEs have limited resources/finances to go through a long and diligent insolvency process, the reduction in the time limit for resolution comes as a blessing for insolvent MSMEs.

The scheme, where only the debtor will get to initiate the bankruptcy process, is expected to yield a much faster resolution than the extant corporate insolvency resolution process (CIRP) and cut costs. It could also reduce litigation, often triggered by defaulting promoters to retain control of their firms, and help thousands of MSMEs struggling to cope with the havoc wrought by the Covid-19 pandemic.

Further, one of the most important features of the Pre-packaged resolution scheme is that it allows the management of the affairs of the corporate debtor to continue to vest in the Board of Directors or the partners, as the case may be, of the corporate debtor, subject to conditions specified, unlike in the CIRP where the resolution professional gets to run the affairs with guidance from financial creditors. If creditors want to initiate bankruptcy proceedings against MSMEs, they can still do so but only through the CIRP and not through Pre-pack.

Furthering the same, the Pre-pack resolution plans have to be submitted in only 90 days and the National Company Law Tribunal (NCLT) will have another 30 days to approve them. Thus, the pre-packaged insolvency resolution process shall be completed within a period of one hundred and twenty days from the pre-packaged insolvency commencement date.

There will be lesser possibilities of disputes, which will allow the process to run more efficiently than the normal CIRP..

Click on this link to continue:click here

[supervidyavinay]

MUMBAI: The road towards changing the Insolvency & Bankruptcy Code (IBC) is less simple than it seemed a fortnight ago when the finance minister announced a suspension of fresh IBC proceedings in the wake of Covid-19 pandemic.The government, it is widely felt, will have to involve the Reserve Bank of India (RBI), large lenders, and some of the other stakeholders to deal with questions that have cropped up in considering an ordinance: How to differentiate borrowers hurt by Covid from those impacted by other factors? How to link the definition of default to Covid-19? Will there be a cut-off date to identify borrowers for whom IBC may still apply? Will self-insolvency continue? Should IBC include partnerships and personal bankruptcy to cover smaller businesses?“Pulling the shutters down on IBC may not be the best solution. There is no logic in restraining a debtor, which is struggling, from commencing insolvency. In any case, suspending provisions without changing the RBI Circular of June 2019 will not help. A proper consultation with RBI and other stakeholders should be initiated,�� said Sumant Batra, managing partner at the law firm Kesar Dass & Associates.Just as financial and operational creditors can initiate the IBC process on a company, the code allows the corporate debtor to opt for self-insolvency. 76146626RBI’s Say on Definition of DefaultAccording to RBI rules, banks have to review the borrower within 30 days of the first default and implement a resolution plan within the next 180 days, failing which they have to make extra provisioning (which eats into their profits and capital).RBI, according to banking circles, is likely to insist that it should have the final say on any change in the definition of default in IBC in the context of the pandemic. RBI has given a six-month moratorium beginning March 1 on interest servicing and loan repayment. “Should IBC continue for borrowers which defaulted before March 1? Should it be for those where banks have reached an inter-creditor agreement (during the 30-day review post default)? Should the moratorium period be considered under the IBC framework?” a senior banker asked.“While the moratorium and lockdown happened in March, there are borrowers who suffered due to supply chain disruption in February or January,” said a senior official of a large PSU bank. All these issues will have to be dealt with before the government finalises an Ordinance for amending IBC to take care of stress caused by Covid-19.According to Ashish Pyasi, Associate Partner at Dhir and Dhir Associates, if the amendment is intended only to exclude default to operational creditors then consultation with RBI may not be required. “However,” said Piyasi, “suspension of all provisions is not the best solution. If financially stressed companies are stopped from approaching the NCLT then they are forced to carry the dead wood. It would worsen their stress as debts will rise and the value of assets will be depleted.”More than 80% small and medium enterprises are partnerships or proprietorships. “I wonder how IBC can help them without first operationalising the part of IBC relating to individuals. And that part needs a major overhaul before it is fit for implementation as the government has indicated earlier. We are talking about a large number here,” said Batra. At present, the issue of individual insolvency in IBC is connected with invocation of corporate guarantee. “On this matter, consultation with state governments would be needed as personal bankruptcy is a subject on which states can also legislate,” he said.While IBC is considered as a full-fledged resolution mechanism compared to other laws which largely focus on recovery, many lenders, particularly state-owned banks, are not in a hurry to initiate IBC proceedings as long as the regulator gives them leeway in restructuring loans. “IBC may mean a distress sale of business in the present environment. But if IBC is deferred and a one-time loan restructuring window is not offered, then there will be no meaningful resolution path left,” said another official of a private sector bank. from Economic Times https://ift.tt/3ey1ts6

[ainvestops]

Best stocks to buy: Up to 100% return in this sale season! The 5% stocks that have rallied right under your nose

Against the wind, I am going home again… It would be such a wonderful thing if you could hum such a song in times of coronavirus. A handful of stocks on Dalal Street are indeed doing such a thing amid this merciless bear hammering.

They are not only keeping their heads above water amid the ongoing global equity selloff, but have even managed to deliver positive returns on a year-to-date basis.

BSE benchmark Sensex has tanked more than 13,000 points in just one month, as fears of the coronavirus pandemic have spooked investor sentiment, triggering a massive fall in stocks.

Data available with Ace Equity showed only 5 per cent of BSE-listed stocks have managed to stay in positive on a year-to-date basis ever since the selloff started on February 19.

With a gain of over 150 per cent, Ruchi Soya Industries topped the chart. In fact, the scrip has climbed from Rs 46.10 on February 19 to trade at Rs 115.25 on March 19. The stock has been on secular bull run since November 2019 after NCLT approved Patanjali Ayurved’s bid to acquire the edible oil processor. The company had gone into insolvency in December 2017, which saw the stock plunge to Rs 3.32 in November last year.

Among others, YES Bank, Garnet Construction, Starteck Finance, Gujarat State Financial Corporation, NRB Industrial Bearings, DQ Entertainment, Qgo Finance, Magellanic Cloud and Suchitra Finance have gained between 40 per cent and 100 per cent during this period.

YES Bank shares turned highly volatile earlier this month after RBI took over its board and imposed a moratorium on its operations. The central bank in coordination with the government then implemented a restructuring package and lifted the moratorium on March 18. The private lender’s newly-appointed CEO Prashant Kumar says there is now absolutely no worry on the liquidity front. Moody’s has also upgraded its rating for the lender, helping the stock to swell.

The India Cements, Essar (India), BASF, KCD Industries, Gujarat Apollo Industries and Kavit Industries are other top gainers.

This, when none of the stocks that are part of the benchmark Sensex are in the positive on a year-to-date basis any more.

Some shares like Borosil Renewables, Tata Chemicals, Indiabulls Housing Finance, Alok Industries, Future Retail and Intellect Design have eroded 60-82 per cent market value in this period.

“This is probably a once-in-a-decade buying opportunity for investors,” says Jyoti Roy, Deputy Vice President and Equity Strategist at Angel Broking.

“Companies like Bata and Titan are looking attractive in the consumption space after the recent correction. However, the next two weeks to one month would be crucial for the market, considering the rising number of Covid-19 cases in the US,” she said.

Sahaj Agrawal, Head of Research- Derivatives at Kotak Securities, said the volatile swings may continue as India VIX remains elevated. “An immediate trend reversal in the market is unlikely, but a bounceback from here is highly probable. Long-term investors can consider accumulating shares gradually.”

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[boldlykeenblizzard]

Best stocks to buy: Up to 100% return in this sale season! The 5% stocks that have rallied right under your nose

Against the wind, I am going home again… It would be such a wonderful thing if you could hum such a song in times of coronavirus. A handful of stocks on Dalal Street are indeed doing such a thing amid this merciless bear hammering.

They are not only keeping their heads above water amid the ongoing global equity selloff, but have even managed to deliver positive returns on a year-to-date basis.

BSE benchmark Sensex has tanked more than 13,000 points in just one month, as fears of the coronavirus pandemic have spooked investor sentiment, triggering a massive fall in stocks.

Data available with Ace Equity showed only 5 per cent of BSE-listed stocks have managed to stay in positive on a year-to-date basis ever since the selloff started on February 19.

With a gain of over 150 per cent, Ruchi Soya Industries topped the chart. In fact, the scrip has climbed from Rs 46.10 on February 19 to trade at Rs 115.25 on March 19. The stock has been on secular bull run since November 2019 after NCLT approved Patanjali Ayurved’s bid to acquire the edible oil processor. The company had gone into insolvency in December 2017, which saw the stock plunge to Rs 3.32 in November last year.

Among others, YES Bank, Garnet Construction, Starteck Finance, Gujarat State Financial Corporation, NRB Industrial Bearings, DQ Entertainment, Qgo Finance, Magellanic Cloud and Suchitra Finance have gained between 40 per cent and 100 per cent during this period.

YES Bank shares turned highly volatile earlier this month after RBI took over its board and imposed a moratorium on its operations. The central bank in coordination with the government then implemented a restructuring package and lifted the moratorium on March 18. The private lender’s newly-appointed CEO Prashant Kumar says there is now absolutely no worry on the liquidity front. Moody’s has also upgraded its rating for the lender, helping the stock to swell.

The India Cements, Essar (India), BASF, KCD Industries, Gujarat Apollo Industries and Kavit Industries are other top gainers.

This, when none of the stocks that are part of the benchmark Sensex are in the positive on a year-to-date basis any more.

Some shares like Borosil Renewables, Tata Chemicals, Indiabulls Housing Finance, Alok Industries, Future Retail and Intellect Design have eroded 60-82 per cent market value in this period.

“This is probably a once-in-a-decade buying opportunity for investors,” says Jyoti Roy, Deputy Vice President and Equity Strategist at Angel Broking.

“Companies like Bata and Titan are looking attractive in the consumption space after the recent correction. However, the next two weeks to one month would be crucial for the market, considering the rising number of Covid-19 cases in the US,” she said.

Sahaj Agrawal, Head of Research- Derivatives at Kotak Securities, said the volatile swings may continue as India VIX remains elevated. “An immediate trend reversal in the market is unlikely, but a bounceback from here is highly probable. Long-term investors can consider accumulating shares gradually.”

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[legalseat]

Supreme Court on the Applicability of the Limitation Act to Insolvency Proceedings

[Surbhi Jaju and Pulkit Chaturvedi are associates at Lakshmikumaran and Sridharan Attorneys]

Introduction

The conundrum of whether the Limitation Act, 1963 (‘Limitation Act’) applies to the proceedings initiated under the Insolvency and Bankruptcy Code, 2016 (‘Code’) has confused the stakeholders since the inception of the Code. The Code was formulated primarily to provide a mechanism to creditors who have been unable to recover their debts and to resolve the procedural and systematic inefficiencies pertaining to the insolvency process in India. The insolvency resolution in the pre-Code era dealt with challenges of delay, inadequacy and ineffectiveness. The objective laid down in the preamble of the Code primarily indicated towards settling these concerns and constituting a robust mechanism for recovery of debts and balancing the interests of all stakeholders. However, the issue with respect to the applicability of the Limitation Act on Code has been well debated and has now been settled by the Supreme Court through its judgment in BK Educational Services Private Limited v. Parag Gupta and Associates.

The confusion on the issue has been caused due to various conflicting decisions of National Company Law Tribunal (“NCLT”) and the National Company Law Appellate Tribunal (“NCLAT”) that had led to contrasting views. In order to elucidate and ascertain the role of the Limitation Act in matters of Code and to clear the prevailing confusion, the Insolvency and Bankruptcy (Second Amendment) Act, 2018 expressly made the Limitation Act applicable to the proceedings or appeals before the NCLT, NCLAT, Debt Recovery Tribunal and the Debt Recovery Appellate Tribunal by introducing section 238A to the Code. This stance has now been further reaffirmed by the Supreme Court in BK Educational where, while deliberating on this issue, the Court affirmed the application of the Limitation Act along with providing it retrospective application.

The Supreme Court observed that from the commencement of Code the legislature intended to apply limitation period on applications instituted under sections 7 and 9 of the Code. It interpreted clarificatory intention from the 2018 amendment that expressly made the Limitation Act applicable to the Code, which meant that debts which have become time barred cannot be claimed afresh through the insolvency route. The Court issued this ruling while relying upon and discussing the provisions of the Companies Act 2013 (‘Companies Act’) and the Insolvency Law Committee’s Report (‘Report’) apart from section 238A of the Code constituting the basis of its finding.

The Companies Act, 2013

In the judgment authored by R.F. Nariman J, the Supreme Court pointed out that the Companies Act makes the Limitation Act applicable to the NCLT and the NCLAT under section 433. The adjudicating authority, i.e., the NCLT and the NCLAT are established to discharge such powers and functions that are conferred on it not merely under the Companies Act but also under any other law for the time being in force. Additionally, section 434(1)(c) of the Companies Act provided that all the proceedings pending under the Act before various High Courts and District Courts including winding up proceedings pending immediately before such date shall be transferred to the NCLT. Hence, section 433 read together with section 434 of the Companies Act implied that the Limitation Act is applicable to all winding up cases which moved from various High Courts to NCLTs after the Code came into force. It also connoted that the Limitation Act shall be applicable to all the cases instituted under the Code as the forum for adjudication under the Code is NCLT.  

Insolvency Law Committee’s Report

Relying on the Insolvency Law Committees Report, Nariman, J observed that the intent behind formulating Code was not to provide new lease to time barred debts, but instead to provide mechanisms to recover and settle the debts that have become ‘due and payable’. The Report discusses at length the nature of debts and reiterates the point that when a debt is barred by time, the right to remedy is also time barred (Punjab National Bank and others v. Surendra Prasad Sinha AIR 1992 SC 1815). The Report also laid down the issues that non-application of the Limitation Act creates and observed the following problems that arise

It reopens the right of financial and operational creditors holding time barred debts under the Limitation Act to file for corporate insolvency resolution process which is triggered when the default on debt is above INR one lakh. The purpose of law of limitation is toprevent disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party’s own inaction, negligence or latches (Rajinder Singh v. Santa Singh AIR 1973 SC 2537). Though Code is not a debt recovery law, the process of corporate insolvency is triggered on ‘default in payment of debt’ and thus non-application of limitation law acts in adversity to the general law; and

It reopens the rights of claimants to file time barred debts as a part of the resolution plan. Such resolution plan restructuring time barred debt is against the essence of Code and non-compliant to existing laws.          

The Report further noted that although the Limitation Act should be made applicable to section 7 and section 9 applications under the Code and relevant entry under the Limitation Act shall be decided on case to case basis. Section 10 applications initiated by the corporate debtor itself under the Code are outside the purview of the application of the Limitation Act as these are initiated by the applicant for its own debts.

Retrospective Application of Section 238A

In BK Educational, the Supreme Court, when confronted with the question of whether section 238A pertaining to limitation introduced in the 2018 amendment to the Code has retrospective applicability, deliberated extensively on the views adopted by NCLT and NCLAT and the arguments put forward by counsel for the parties.

Counsel appearing on behalf of the appellants argued that the law of limitation pertaining to the domain of procedure must be held to apply retrospectively in any case. To substantiate their arguments, counsel relied upon several judgments of the Supreme Court (Allied Motors (P) Limited v.CIT (1997) 3 SCC 472; MP Steel Corporation v.CCE (2015) 7 SCC 58; SBI v. V Ramakrishnan (2018) SCC Online SC 963). It was argued that it could never have been the intention of the legislature to resuscitate stale and dead claims that were barred by limitation leading to taking over the management of the corporate debtor which might ultimately result in winding of the company. For the introduction of section 238A in the Code to serve its purpose, retrospective application was necessary as otherwise applications to resurrect time barred claims would have to be allowed as not being governed by law of limitation.

On the other hand, counsel appearing on behalf of the respondents argued that the Code should also prescribe to the general norms. The general law is that every statute is prospective unless it is expressly or by necessary implication made to have retrospective application.

The Supreme Court held that limitation law being procedural in nature should be applied retrospectively except where law of limitation revives a dead remedy. The context of the exception is that the new law of limitation should not provide for a longer period of limitation than what was provided earlier before amendment. Nariman, J observed that if the retrospective applicability of the Act is not applied, a creditor can trigger the Code for a debt that is time barred which cannot be the intention of the legislature. He further observed that the expression ‘debt due’ used in the Code would obviously only refer to debts that are not time barred and which has already been held in the case of Innoventive Industries v. ICICI Bank & Anr.  

Conclusion

The Supreme Court arrived at the conclusion that the Limitation Act is applicable to applications that are filed under sections 7 and 9 of the Code and that too from the inception of the Code, i.e. from 2016. The Court observed that article 137 of the schedule to the Limitation Act would therefore be immediately attracted and the ‘right to sue’ will accrue when a default occurs. If the default occurs three years prior to the date of filing of the application by the financial or operational creditor, such application would be barred under article 137 of the schedule to the Limitation Act, except in those cases wherein, through the applicability of section 5 of the Limitation Act, such delay can be condoned.

In our view, the Supreme Court in BK Educationalhas further pronounced the already laid down common law maxim “vigilantibus et non dormientibus jura subveniunt”, which means the law helps those who are vigilant and not those who sleep over their rights. Through the judgment, it is clearly laid down that a creditor that has slept over its rights and has allowed the limitation period to lapse cannot rely upon the Code to recover its time barred, dead and stale debts. This judgment and reasoning of the Supreme Court is important as it clears the prevailing confusion regarding applicability of Limitation Act and authoritatively lays a precedent that is binding on the NCLT and NCLAT. 

– Surbhi Jaju & Pulkit Chaturvedi

The post Supreme Court on the Applicability of the Limitation Act to Insolvency Proceedings appeared first on IndiaCorpLaw.

Supreme Court on the Applicability of the Limitation Act to Insolvency Proceedings published first on https://divorcelawyermumbai.tumblr.com/

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Deven Choksey, MD, KR Choksey Investment Managers, discusses Eicher, Tech Mahindra, HDFC as well as PSU banks and metals stocks with ET Now. 65196000 65208105 65193484 Edited excerpts: What would Harley Davidson coming to India mean for Eicher? Harley is in a completely different segment. They are in a high range of motorcycles and a higher segment of the market. That is definitely going to work in favour of companies which are in India. If we study the pattern of how Bajaj Auto has systematically built in KTM into their portfolio, it suggests that on one side, they took advantage of strong engineering and used the brand KTM for distribution purpose.Harley probably brings in a similar kind of an equation wherein the cost of manufacturing is brought down to the level at which the world or Indian markets can afford them. So, certainly it would be an interesting play. I do not see too much of a problem but at the same time, you can argue that there would be a pressure on the margin for likes of Eicher who have been commanding around 30% margin. One will have to see how they react on the pricing front.After Tech Mahindra’s earnings, how are you positioning your preference within the IT pack? I am going with the assumption that TCS would still be your top pick but other than that, is it the right climate to initiate calls among the largecaps within the space? TCS gives us a distinct clarity. They have the visibility of long-term contracts which they have been signing every quarter. So, there is a visibility of revenue from their conventional model. The way in which the shift is taking place to the digital model is giving a conviction that somewhere down the line, inorganic growth would be a reality in case of TCS and even for Infosys. Tech Mahindra has already shown the desire for inorganic growth. From that perspective, TCS would still rank better compared to the others. We will continue to hold on to the positions that we have in TCS. The important part in the IT would be the growth because TCS, Infosys, Tech Mahindra kind of companies may end up producing 10% to 20% price appreciation, subject to price at which you enter in a given year. Only if you entered in a corrective downside, you will have the opportunity to earn between 15% and 20%. Otherwise, the outlook is 10-15% appreciation in these three companies.But in midcap IT companies like Tata Elxsi, we find there is an opportunity to make 25% CAGR from this business given the kind of a growth programme that the three IT largecaps are continuing within each of the verticals in which they are operating. All said and done, I would prefer to stay with some of the good quality midcap IT companies like Tata Elxsi and KPIT where we have relatively larger amount of clarity about the growth going forward.Bank of Baroda (BoB) has in a sense, rerated the entire PSB sector. Are you hopeful that after an Indian Bank and BoB, we could see similar performances from some of the other PSU banks as well? Or should the list stop at SBI after BoB? Let us also accept the fact that due to the lower pressure of providing for the non-performing assets, PSBs are now showing relatively better performance in the quarterly results. With the NCLT programmes continuing, they are auctioning the assets and getting money back into the books. It is positive only, going forward as well. As the downside in the PSB has been kept limited, the upside in PSB would depend a lot on the basis of earnings outlook with the produce from lending.Currently, that is an area where most of the analysts are not as confident as they would have been otherwise. The PSU banks are passing through a restructuring programme in their operations including for lending and other activities. I am not too sure whether you would have an equal amount of credit growth which some of the private sector or the corporate banks are registering as of now. But, valuation wise, these PSBs have become attractive. Downside is limited and any kind of positive news could result in upside in stock prices and that is where the traders delight as they function in a market where positive news would drag the stock price up while the fundamentals take time to catch up. It would be a buy in dips strategy for PSBs at this point of time.Vedanta is going to come out with earnings. Last week, the Aleris buy by Novelis helped lift sentiment on Hindalco. The three metals majors -- Tata Steel, Vedanta as well as Hindalco -- come on the back of a two-year mega bull run in commodities. Does that continue? Certainly the white metals as well as the ferrous metal would continue to have volume-led growth in the economy. All these companies fortunately do not carry even the inventory for few days in their godown. This means the offtake is much faster than one would have imagined in the past. Because of the global market conditions including China factor where they have switched over to the electric car furnaces in steel, the prices of steel have remained stable comparatively. As a result, realisation is better. So, on one side, you have a high demand scenario and on other side, realisation is better. Crude oil price is increasing and that is having the impact but at the same time you have much favourable delta on the pricing front vis-à-vis the cost. That is giving opportunity for white metal as well as the ferrous companies and that is an area where the demand scenario along with the profit margins, would probably drive the stock prices. Any corrections would be meaningful. This is not generalisation. There would be a correction in respective companies from time to time. But that would be a meaningful way to look into the commodity players like the metal companies and buy them into portfolio during downside. We believe that two-three years of upcycle in metal is a given. If the scenario is buoyant, you should make money in the upcycle in the commodity space.Why would anybody in their right mind vote against Deepak Parekh? The large wealth which has been created for HDFC shareholder is because of the way the checks and balances and the corporate ethos of HDFC Ltd. and HDFC Bank has evolved in last 30 years. Now, 22%, nearly one-fourth of the total shareholders, do not want him as the Chairman anymore?Generally, as an entrepreneur, promoter and a prudent manager of the finance business, you ultimately end up managing the risk well. That is what Deepak Parekh’s USP has been. He has been managing his risks so very well that we have seen some of the best institutions coming out of the HDFC group. Today there are investors in the company who are not necessarily looking at the risk in a same manner in which he has been looking at it. They probably want to accelerate the pace of growth in various businesses in which they are operating. They are trying to position themselves more aggressively.Ever since I have started learning how to read corporate annual accounts, I have seen HDFC remaining the most prudent company in management of risks. I am more convinced that the style of working is far more superior than one would have asked for but yes some part of investors have been demanding a aggressive path and that is where the discontent is. I have not talked to any investor honestly but this could be the reason for which there may be some kind of a negative voting against Parekh. from The Economic Times https://ift.tt/2LQ2yAJ

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