IBC | ADVANCE AS AN OPERATIONAL DEBT | CONTRADICTORY RULINGS

The National Company Law Tribunal, Kolkata Bench (NCLT), in SHRM Biotechnologies Private Limited vs VAB Commercial Private Limited, recently passed an order in which it was held that in the absence of provision of goods or services, a claim towards refund of advance money would not fall within the meaning of an `operational debt`.

FACTS OF THE CASE:

• SHRM Biotechnologies Private Limited (SHRM), the applicant, was seeking investors to expand its business. In this regard, SHRM approached VAB Commercials Private Limited (VAB) for arranging an investor.
  
  
• SHRM issued a mandate letter to VAB on 7 September 2016 and paid a sum of Rs 3 lacs by way of an advance. It was agreed between SHRM and VAB that in the event VAB was unable to arrange a deal with a potential investor for SHRM, VAB would refund the entire advance to SHRM. VAB, however, neither arranged an investor nor refunded the advance of Rs 3 lacs to SHRM.
  
  
• On 2 January 2018, SHRM sent a demand notice under the Insolvency and Bankruptcy Code, 2016 (IBC) to VAB claiming refund of the advance of Rs 3 lacs with interest at 18% pa compounded annually, aggregating to a sum of Rs 3,63,122/-. Since VAB did not respond to the demand notice, SHRM filed an application under the IBC to commence the corporate insolvency resolution process against VAB for non-payment of an operational debt.
  
  
• The main issue before the NCLT was whether a claim for repayment of an advance, in terms of the mandate letter signed by SHRM and VAB, comes under the ambit of `operational debt` for the purpose of section 9 of the IBC.

DECISION OF NCLT

• NCLT examined the definition of ``debt``, ``operational creditor`` and ``operational debt`` under the IBC to come to the conclusion that an operational debt which does not involve the Government or an employment claim must involve the provision of goods or services.
  
  
• In this regard, the NCLT cited the decision of Sajive Kanwar v AMR Infrastructure wherein the definition of ``operational debt`` was discussed in detail. It was observed in that judgement that ``operational debt`` did not cover all forms of debt other than “financial debt” and the elements of ``operational debt`` must be met for an applicant’s claim to merit admission.
  
  
• Based on the above findings, the NCLT was of the view that since the advance was paid without the provision of any goods or services the advance would not fall within the definition of ``operational debt`` and SHRM could not be considered an ``operational creditor``. The application was, therefore, dismissed.
  
  

MHCO Comment: NCLT in this case has strictly interpreted the provisions of the IBC dealing with ``operational debt`` and ``operational creditors``. An advance against the provision of services, which is liable to be refunded, could be construed as an ``operational debt`` since it involves services even though the person making the advance does not provide the service. Such an interpretation would ensure that an advance which is a debt is adequately covered under the IBC. There is a dichotomy in relation to decisions taken on this issue by various benches of NCLT. The Mumbai Bench of NCLT in Auspice Trading Private Limited vs M/s Global Proserv Limited, held that an advance paid for the supply of goods and services would be an operational debt without giving reasons for such an interpretation.

It remains to be seen whether the National Company Law Appellate Tribunal or the Supreme Court are seized of this issue to lay rest to the position of an advance as operational debt.

This update was released on 17 December 2018.

The views expressed in this update are personal and should not be construed as any legal advice. Please contact us directly on +91 22 40565252 or legalupdates@mhcolaw.com for any assistance.   

IBC | Binani Cement Case Update | NCLAT approves Ultratech’s bid

 

The National Company Law Appellate Tribunal (NCLAT) recently passed an order approving the resolution plan made by Ultratech Cement Limited (Ultratech) in the case of Binani Cement Limited (Company) while holding that the resolution plan submitted by Rajputana Properties Limited (Dalmia Group) is discriminatory and defeats the purpose of the Insolvency and Bankruptcy Code, 2016 (Code or IBC).

Factual Background:

• The resolution professional of the Company filed an application before the National Company Law Tribunal (NCLT), Kolkata, for approval of the resolution plan submitted by the Dalmia Group in respect of the Company. The resolution plan had been approved by the Company`s Committee of Creditors (CoC) on 14 March 2018. However, some creditors filed objections to the same, stating that they had been coerced into approving the plan and they had not been dealt with equitably compared to the financial creditors of the Company who were also beneficiaries of corporate guarantees.
  
  
• NCLT also noticed that the CoC had failed to consider the resolution plan submitted by Ultratech, including a revised plan submitted by it on 8 March 2018. While holding that the plan submitted by the Dalmia Group was discriminatory, the NCLT directed the CoC to consider other resolution plans, including the one submitted by Ultratech. NCLT also allowed the Dalmia Group to submit a revised resolution plan and directed the CoC to consider both plans.
  
  
• Aggrieved by the decision of the NCLT, the Dalmia Group approached the NCLAT which passed an interim order, upholding the order of the NCLT. Thereafter, the Dalmia Group moved the Supreme Court seeking a stay on the NCLAT`s order. However, on 2 July 2018, the Supreme Court directed the NCLAT to decide all issues related to the present case, including the eligibility criteria of Ultratech to file a revised bid, pursuant to which the present order was passed by the NCLAT.
  
  
• Meanwhile, pursuant to the decision of the NCLT, the CoC held a meeting on 28 May 2018 where it considered the revised plan submitted by Ultratech and unanimously voted in favour of it.

Issues Examined by the NCLAT

• The NCLAT examined various provisions of IBC and held that the objective of the Code is to promote resolution of an insolvent company over liquidation and to maximize value for all its stakeholders. NCLAT also referred to the decision of the Supreme Court in Arcelor Mittal India Pvt. Ltd. v. Satish Kumar Gupta and Ors where it was held that every effort must be made to run the Corporate Debtor as a going concern, if there is a resolution applicant who can continue to do so.
  
  
• NCLAT also held, that although the CoC comprises only of financial creditors, an approved resolution plan must ensure that the dues of operational creditors are also addressed.
  
  
• The resolution plan submitted by the Dalmia Group, provided for 100% payment of the verified claims to certain financial creditors such as the State Bank of India and Bank of Baroda while other similarly placed financial creditors, such as the Export Import Bank of India, and State Bank of India (Hong Kong) were to be repaid only a portion of their claims. In the case of operational creditors, unrelated parties (other than workmen) would only be paid 35% of their verified claims, while no repayment would be made to related parties
  
  
• The grounds put forth by the Dalmia Group in support of these distinctions were not accepted by the Tribunal which held that the Code does not prescribe differential treatment between the similarly situated operational creditors` or the financial creditors` on one or other grounds.
  
  
• In contrast to the plan submitted by the Dalmia Group, the plan submitted by Ultratech provided for 100% repayment of the verified claims of all financial and operational creditors, except for related parties. Ultratech has also made a provision for payment of interest to financial creditors during the subsistence of the resolution period. NCLAT also held that the revised resolution plan submitted by Ultratech was in consonance with the provisions of the Code.
  
  
• NCLAT also held that there is no time limit prescribed by the Code, for the CoC to negotiate with the resolution applicant and modify the resolution plan with its approval, subject to the resolution process being completed within the time frame mandated by the Code.

Appeal

• The Dalmia Group filed an appeal against the present order of the NCLAT before the Supreme Court, which passed an Order on 19 November 2018 dismissing the appeal filed by Dalmia and stating that there is no infirmity in the order of the NCLAT.

MHCO Comment: This is a landmark ruling by NCLAT and will have repercussions on which resolution plans are acceptable under the Code, where the focus shall now be on running the Company as a going concern and maximizing value for all sets of stakeholders. Further, the resolution plan cannot discriminate against similarly placed creditors and must also ensure that the claims of operational creditors are adequately addressed. This is in line with the objectives of the Code.


The views expressed in this update are personal and should not be construed as any legal advice. Please contact us directly on +91 22 40565252 or legalupdates@mhcolaw.com for any assistance. 

 

COMPANIES (AMENDMENT) ORDINANCE, 2018

Introduction:

The President of India had on 2 November 2018 promulgated The Companies (Amendment) Ordinance, 2018 (Amendment) thereby amending some of the sections of the Companies Act, 2013 (Act).The Amendment addresses adjudication of penalties, corporate governance, de-clogging the National Company Law Tribunal (NCLT) and registration of charges. This update briefly summarises the provisions of the Amendment.

Important Amendments:

1. Prescribing rigid penalties in case of repeated defaults: In case a company or officer of a company or any other person having already been subjected to penalty for default, repeats the same default within a period of 3 years from the date of the order imposing such penalty, it or he shall be liable for the second and every subsequent defaults for an amount equal to twice the amount provided for such default under the relevant provisions of the Act.
   
   
2. Transfer of powers of NCLT to other regulatory authorities: It appears that with the dissolution of Company Law Board and constitution of NCLT, the matters filed before the NCLT have increased tremendously and thus the following powers exercised by NCLT under the Act have been shifted to other regulatory authorities:
   • Power to approve change in financial year: The power vested with the NCLT to approve the change of financial year from April –March for company or body corporate which is a holding company or a subsidiary or associate company of a company incorporated outside India has been transferred to the Central Government.
     
     
   • Conversion of Public Companies into Private Companies: The power vested with the NCLT to approve the conversion of Public Companies into Private Companies has been transferred to the Central Government.
     

3. Declaration by director: The director of the company having share capital is now required to file a declaration that every subscriber to the memorandum has paid the value of the shares agreed to be taken by him on the date of the declaration within 180 days of the incorporation before it commences its business or exercises borrowing power. Non-compliance would lead to the invocation of the penalty clause.
4. Registered Office: If the registrar has a reasonable cause to believe that the company is not carrying on any business or operations, he may cause a physical verification of the registered office and in case of any default, initiate action for removal of the name of the company.
5. Compounding of certain offences: Post amendment, the power of Regional Director to compound offences has been increased to Rs 25 lacs from the previous power of Rs 5 lacs. The provision requiring permission of the Special Court for compounding certain offences which are punishable with imprisonment or with fine has been removed.
6. Replacement of fine with penalty: There has been a re-categorization of the failure to comply with the following provisions by shifting them from the jurisdiction of Special Courts to an in-house e-adjudication framework wherein defaults would be subject to levy of penalty by the Registrar of Companies instead of fine:
   • Prohibition of Issue of shares at discount - Penalty equivalent to amount raised through issue of shares at discount or INR 5,00,000/- (Rupees Five Lac only) whichever is less. The Company shall also be liable to refund all monies received with interest @ 12 % per annum;
     
     
   • Notice to be given to Registrar for alteration of share capital;
     
     
   • Failure or delay in filing of Annual Return. Also the punishment of imprisonment has been omitted.
     
     
   • Explanatory Statement.
     
     
   • Default in providing a declaration with regard to appointment of proxy in a notice calling for general meeting.
     
     
   • Failure/Delay in filing certain resolutions.
     
     
   • Annual Report
     
     
   • Failure/Delay in filing of financial statements. Also, the punishment of imprisonment has been omitted.
     
     
   • Contraventions relating to DIN. Also, the punishment of imprisonment has been omitted.
     
     
   • Accepting directorships beyond specified limits.
     
     
   • Appointment of Key Managerial Personnel.

8. Punishment for Fraud: The amount of fine has been increased to INR 50,00,000/- (Rupees Fifty Lac only) from INR 25,00,000/- (Rupees Twenty Five Lac only)
9. Registration of Charges: With the new amendment, for charges created prior to the commencement of Companies (Amendment) Ordinance, 2018, the registrar may allow 300 (three hundred) days and for charges created after the commencement of Companies (Amendment) Ordinance, 2018 the registrar may allow 60 (sixty) days.
10. Ensuring compliance of the default: The adjudicating officer in addition to the exercise of power of imposing penalties is empowered to direct the company and officer in default to rectify the default stating the non-compliance or default under the relevant provisions of the Act.
11. Disqualification of appointment of directors: A person shall be subject to disqualifications if he exceeds the maximum number of directorships mentioned under the Act.
12. Stock Options: The provisions of the Act which did not entitle independent directors to stock options has been omitted. Further, it stated that they may receive sitting fees, commission, and reimbursement of expenses.
13. Register of significant beneficial owners in a company: In case of failure to make disclosures under Section 90 of the Act, it was only punishable with fine. The punishment has been made more stringent by making contravention punishable with fine or imprisonment or both instead of fine only.

MHCO COMMENT: The Amendment addresses the issues of non-compliance of the provisions of the Act by revising penal provisions as recommended by the Injeti Srinivas Committee. The penalties have been relaxed thereby granting relief to companies. Attempts have also been made to ease the burden on the NCLT by increasing the monetary limits for punishments that may be adjudicated by the Registrar of Companies and shifting certain powers to the Central Government.

The views expressed in this update are personal and should not be construed as any legal advice. Please contact us directly on +91 22 40565252 or legalupdates@mhcolaw.com for any assistance. 

UNSIGNED ARBITRATION AGREEMENT IS NOT INVALID IN ALL CIRCUMSTANCES

INTRODUCTION

The Supreme Court of India has very recently in the case of Caravel Shipping Service Private Limited versus Premier Sea Foods Exim Private Limited held that an unsigned arbitration agreement would not be invalid in all cases. The only pre-requisite is that it has to be in writing, as set out in Section 7(3) of the Arbitration Act, 1996 (Act). Further, the aforesaid judgment held that the stage of the suit would not come in the way of an application filed under Section 8(3) of the Act to refer parties to arbitration when the issue is pending before the judicial authority, provided said application under Section 8(3) of the Act was filed in the same year as that of the suit.

FACTS OF THE CASE

The dispute arose out of a Bill of Lading (Bill) between Caravel Shipping Service Private Limited (Appellant) and Premier Sea Foods Exim Private Limited (Respondent) who was the merchant according to the Bill. A suit was filed by the Respondent before the Sub-Judge’s Court in Kochi to recover the sum of Rs. 26,53,593/- from the Appellant. The pleadings expressly stated that the Bill was to be a part of the cause of action in the aforesaid suit.

Subsequently, the Appellant filed an interim application under Section 8 of the Act to refer the matter to arbitration. It was brought to the Hon’ble Court’s notice that the arbitration clause was included in the printed terms annexed to the aforesaid Bill. Furthermore, the interim application also stated that a petition under Section 11 of the Act to appoint an arbitrator in accordance with clause 25 of the aforesaid Bill had been filed in Chennai. The Sub-judge dismissed the application on the ground that the printed condition annexed to the Bill would not be binding upon the parties.

A writ was filed under Article 227 before the Kerala High Court which was dismissed by judgment dated 14 June 2016 inter alia on the grounds that the arbitration clause did not reflect an intention to arbitrate and further, there was nothing to show that the aforesaid clause 25 was brought to the notice of the Respondent. The Appellants filed a review petition against this judgment which was dismissed by the Kerala High Court. The Appellant then approached the Supreme Court.

RATIO DECIDENDI

The Supreme Court referred to the Bill and held that the aforesaid Bill stipulated that the Merchant, the present Respondent, agreed to be bound by the terms, conditions, clauses and exceptions on both sides of the Bill.

The Bench observed that since the Respondent had themselves relied upon the Bill as a part of its cause of action in the suit filed by them before Sub-Judge’s Court in Kochi, they cannot at a later stage take a contradictory stance.

The Court referred to Jugal Kishore Rameshwardas v. Mrs Goolbai Hormusji (AIR 1995 SC 812) which held that an arbitration agreement needs to be in writing though it need not be signed. The Supreme Court concurred with this view.

The Apex Court stipulated that since the Respondent relied on the Bill in his suit to recover monies from the Appellant, he was expressly bound by the arbitration clause even if the arbitration clause is annexed to the Bill in printed condition. The Respondent cannot make a subsequent argument that because the arbitration clause is annexed to the Bill in printed condition, the parties are not bound by it.

The Bench also observed that the stage of the suit would not come in the way of an application filed under Section 8(3) of the Act in as much as the said Section 8(3) application is filed in the same year as that of the suit.

MHCO Comment: Pursuant to this judgment, it would be advisable for parties to a contract who do not wish to arbitrate to ensure that the terms and conditions of the contract do not include an arbitration clause. If an arbitration clause is present in the printed but unsigned conditions of an agreement, the matter may still be referred to arbitration even if the parties have not signed the conditions.

The views expressed in this update are personal and should not be construed as any legal advice. Please contact us directly on +91 22 40565252 or legalupdates@mhcolaw.com for any assistance.