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Whether the Limitation Act, 1963 is applicable to an application for appointment of Arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996? – Arif Azim Co. Ltd. Vs. Aptech Ltd. – Supreme Court

Hon’ble Supreme Court held that:
(i) The limitation period for filing an application seeking appointment of arbitrator commences only after a valid notice invoking arbitration has been issued by one of the parties to the other party and there has been either a failure or refusal on part of the other party to make an appointment as per the appointment procedure agreed upon between the parties.
(ii) The “right to apply” of the Applicant can be said to have as its jural corelative the “duty to appoint” of this Court only after all the steps required to be completed before instituting a Section 11(6) application have been duly completed. Thus, the limitation period for filing a petition under Section 11(6) of the Act, 1996 can only commence once a valid notice invoking arbitration has been sent by the applicant to the other party, and there has been a failure or refusal on part of that other party in complying with the requirements mentioned in such notice.
(iii) Although, limitation is an admissibility issue, yet it is the duty of the courts to prima-facie examine and reject non-arbitrable or dead claims, so as to protect the other party from being drawn into a time-consuming and costly arbitration process.
(iv) The position of law is settled that mere failure to pay may not give rise to a cause of action. However, once the applicant has asserted its claim and the respondent has either denied such claim or failed to reply to it, the cause of action will arise after such denial or failure.
(v) While considering the issue of limitation in relation to a petition under Section 11(6) of the Act, 1996, the courts should satisfy themselves on two aspects by employing a two-pronged test – first, whether the petition under Section 11(6) of the Act, 1996 is barred by limitation; and secondly, whether the claims sought to be arbitrated are ex-facie dead claims and are thus barred by limitation on the date of commencement of arbitration proceedings. If either of these issues are answered against the party seeking referral of disputes to arbitration, the court may refuse to appoint an arbitral tribunal.

Whether the Limitation Act, 1963 is applicable to an application for appointment of Arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996? – Arif Azim Co. Ltd. Vs. Aptech Ltd. – Supreme Court Read Post »

Once Resolution Plan is approved by NCLT and Corporate debtor gets into hands of new management, all the past liabilities including Criminal Liability of Corporate debtor gets wiped off and New Management takes over the company with clean slate, however, old management will be liable to face all offence committed prior to CIRP commencement – Vasan Healthcare Pvt. Ltd. Vs. The Deputy Director of Income Tax (Investigation) – Madras High Court

Hon’ble High Court of Madras holds that:
(i) The company has been taken over by a new management and the criminal liability cannot be passed on to the new management.
(ii) The new management takes over the Corporate Debtor as a clean slate and the criminal liability can no longer be mulcted as against Corporate Debtor. Therefore, the continuation of criminal proceedings as against Corporate Debtor can no longer subsist.
(iii) The criminal liability of a company cannot be transferred to another company or the new management ipso facto.
(iv) It is left open to the respondent to identify the persons who were in-charge of running the company and were involved in the day today affairs of the company during the relevant point of time and it will be left open to the respondent to continue the criminal prosecution as against those officers.

Once Resolution Plan is approved by NCLT and Corporate debtor gets into hands of new management, all the past liabilities including Criminal Liability of Corporate debtor gets wiped off and New Management takes over the company with clean slate, however, old management will be liable to face all offence committed prior to CIRP commencement – Vasan Healthcare Pvt. Ltd. Vs. The Deputy Director of Income Tax (Investigation) – Madras High Court Read Post »

The Court’s power under Section 319 Cr.P.C. is not hampered merely by pendency of an application under Section 141 the Negotiable Instrument Act, 1881 – M/s Hindukush Bio Products Pvt. Ltd. Vs. State of Uttarakhand and Another – Uttarakhand High Court

Hon’ble High Court held that the provisions contained in Section 319 Cr.P.C. being a general provision, which has been made applicable under the proceedings of the N.I. Act. The same would not be clouded merely because of the fact that the application under Section 141 N.I. Act is pending. Since, the power given under Section 319 Cr.P.C. is not clouded by Section 141 N.I. Act, which is an exclusive prerogative of opposite party against whom the proceedings under Section 138 N.I. Act, has been filed. The powers under Section 319 Cr.P.C. is that of the Court, depending upon its own logical reason to bring an appropriate party on record. The exercise of power by the Court while considering the application under Section 319 Cr.P.C. for bringing an appropriate party on record would not be restricted by the trial Court, due to pendency of application under Section 141 of the N.I. Act.

The Court’s power under Section 319 Cr.P.C. is not hampered merely by pendency of an application under Section 141 the Negotiable Instrument Act, 1881 – M/s Hindukush Bio Products Pvt. Ltd. Vs. State of Uttarakhand and Another – Uttarakhand High Court Read Post »

As Resolution Professional is expected to pay the electricity charges in time during the CIRP period, a request for non-payment of minimum electricity charges for the period of temporary disconnection of electricity connection and waive off the interest charges cannot be entertained – Mr. Rajeev Goel, RP FM Hammerle Textiles Ltd. Vs. Maharashtra State Electricity Distribution Company Ltd. – NCLT Chandigarh Bench

Adjudicating Authority held that the interest has been charged due to delayed payments during the CIRP period. As the Resolution Professional is expected to pay the electricity charges in time during the CIRP period, a request for non-payment of electricity charges cannot be entertained. It is also noted that this Bench has earlier waived the late payment charges, which is different from the charge of interest for late payment. We find the merit of the contention of the respondent that if the charges as per the MERC Regulations 2005 are not paid by the corporate debtor and the same would be passed on to the regular consumers, which will have a general adverse impact on the economic environment.

As Resolution Professional is expected to pay the electricity charges in time during the CIRP period, a request for non-payment of minimum electricity charges for the period of temporary disconnection of electricity connection and waive off the interest charges cannot be entertained – Mr. Rajeev Goel, RP FM Hammerle Textiles Ltd. Vs. Maharashtra State Electricity Distribution Company Ltd. – NCLT Chandigarh Bench Read Post »

Valuation having already been done and auction sale notice have been issued and auction sale conducted identifying the Successful Auction Bidder, there was no occasion for directing any appointment of forensic auditor – Kunwer Sachdev Vs. Su-Kam Power Systems Ltd. Through Sh. Raj Kumar Ralhan(Liquidator) – NCLAT New Delhi

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Valuation having already been done and auction sale notice have been issued and auction sale conducted identifying the Successful Auction Bidder, there was no occasion for directing any appointment of forensic auditor – Kunwer Sachdev Vs. Su-Kam Power Systems Ltd. Through Sh. Raj Kumar Ralhan(Liquidator) – NCLAT New Delhi Read Post »

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