Tag: Web Design & Analytics Osmania University B.com Notes

Plant Varieties

The objective of this act is to recognize the role of farmers as cultivators and conservers and the contribution of traditional, rural and tribal communities to the country’s agro biodiversity by rewarding them for their contribution and to stimulate investment for R & D for the development new plant varieties to facilitate the growth of the seed industry.

The Plant Variety Protection and Farmers Rights act 2001 was enacted in India to protect the New Plant Variety; the act has come into force on 30.10.2005 through Authority. Initially 12 crop species have been identified for regt. i.e. Rice, Wheat, Maize, Sorghum, Pearl millet, Chickpea, Green gram, Black gram, Lentil, Kidney bean etc. India has opted for sui- generic system instead of patents for protecting new plant variety. Department Agriculture and Cooperation is the administrative ministry looking after its registration and other matters.

Layout Design

Industrial designs refer to creative activity, which result in the ornamental or formal appearance of a product, and design right refers to a novel or original design that is accorded to the proprietor of a validly registered design. Industrial designs are an element of intellectual property. Under the TRIPS Agreement, minimum standards of protection of industrial designs have been provided for. As a developing country, India has already amended its national legislation to provide for these minimal standards.

The essential purpose of design law it to promote and protect the design element of industrial production. It is also intended to promote innovative activity in the field of industries. The existing legislation on industrial designs in India is contained in the New Designs Act, 2000 and this Act will serve its purpose well in the rapid changes in technology and international developments. India has also achieved a mature status in the field of industrial designs and in view of globalization of the economy, the present legislation is aligned with the changed technical and commercial scenario and made to conform to international trends in design administration.

This replacement Act is also aimed to enact a more detailed classification of design to conform to the international system and to take care of the proliferation of design related activities in various fields.

Semiconductor Integrated Circuit means a product having transistors and other circuitry elements, which are inseparably formed on a semiconductor material or an insulating material or inside the semiconductor material and designed to perform an electronic circuitry function.

The aim of the Semiconductor Integrated Circuits Layout-Design Act 2000 is to provide protection of Intellectual Property Right (IPR) in the area of Semiconductor Integrated Circuit Layout Designs and for matters connected therewith or incidental thereto. The main focus of SICLD Act is to provide for routes and mechanism for protection of IPR in Chip Layout Designs created and matters related to it. The SICLD Act empowers the registered proprietor of the layout-design an inherent right to use the layout-design, commercially exploit it and obtain relief in respect of any infringement. The initial term of registration is for 10 years; thereafter it may be renewed from time to time. Department of Information Technology Ministry of Communications and Information Technology is the administrative ministry looking after its registration and other matters.

NCLT and DRT are judicially constituted special bodies for adjudicating resolution of matters related to insolvency and bankruptcy. NCLT appeals lies to National Company Law Appellate Tribunal (NCLAT) and after NCLAT, the party can appeal to the Supreme court of India. Similarly, for DRT, appeals lie to the Debt Recovery Appellate Tribunal and then to the supreme court of India. NCLT and DRT are separate tribunals. NCLT is for companies and limited liability partnerships and DRT is for unlimited liability partnerships and sole proprietors.

Section 13 (Declaration of moratorium and public announcement) provides that the Adjudicating Authority shall:

(a) Declare a moratorium for the purposes referred to under Section 14.

(b) Cause a public announcement of the initiation of corporate insolvency resolution process and call for the submission of claims under section 15.

(c) Appoint an interim resolution professional in the manner as laid down in Section 16. A public announcement is to be made immediately after the appointment of the interim resolution professional.

Section 14 (Moratorium) provides that on the insolvency commencement date, the Adjudicating Authority shall declare a moratorium prohibiting

(a) The institution or continuation of suits or proceedings against the corporate debtor including execution of a judgment, decree, order, etc.

(b) Transferring, encumbering alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest.

(c) Any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.

(d) Recovery of any property by an owner or lessor where such property is occupied by, or in the possession of the corporate debtor. Section 16 provides for the appointment and tenure of an interim resolution professional.

The resolution professional has to work under the broad guidelines of the committee of creditors (or “COC”- in terms of Section 21 of the Code). The CoC includes all the financial creditors of the corporate debtor, except all related parties and operational creditors. Further, Section 22 of the Code provides that the CoC has to appoint the resolution professional. This resolution professional can also be the interim resolution professional. A vote of 75% of the voting share shall determine the decisions of the committee to opt for either a revival or liquidation (Section 30). The decision of the CoC is binding not only on debtors, but also on all the other creditors. Different types of revival plans include fresh finance, sale of assets, haircuts (i.e. acceptance by creditors of amounts lower than what is due to them), change of management etc. The committee should approve the resolution plan forwarded by the creditor. Only upon approval does the resolution professional forward the plan to the adjudicating authority for final approval. The resolution plan has to be approved by the NCLT; while doing so, it can consider objections to the resolution plan by any party interested in voicing such objections (i.e. operational creditors, financial creditors, etc).

There can also be no enforcement of securities, sale or transfer of assets or termination of essential contracts against the debtor. The next step is appointment of an Interim Resolution Professional under Section 16 of the Code.

After the commencement of corporate insolvency resolution, the NCLT orders a moratorium on the debtor’s operations for the period of 180 days. This is termed as a ‘calm period’ during which no judicial proceedings for recovery, enforcement of security interest, sale or transfer of assets, or termination of essential contracts can take place against the debtor.

The Insolvency and Bankruptcy Code 2016 recently completed its second anniversary successfully. In these two years, the harvests through the IBC process proved to be extremely satisfactory. The entire scenario of the debtor creditor relationship changed after the implementation of the Code.

After the enforcement of the Code, the creditors are not required to chase the debtor but it’s the debtor who chases the creditors. After the entry of the code, the NCLT has become a trusted forum with high credibility.

With the coming of Code into execution numerous cases commenced to be filed before NCLT due to NCLT became overcrowded and therefore seeing alarming situation the capacity of NCLT was further enhanced within due time and matter under this legislation were disposed off expeditiously in time bound manner.

The major points of difference between the insolvency proceedings of corporate persons and individuals & partnership firm is that the application by corporate persons is filed with NCLT whereas application by individuals & partnership firms is filed with DRT.

Adjudicating Authority

In relation to insolvency matters of individuals and firms, the Adjudicating Authority shall be the Debt Recovery Tribunal (DRT) having territorial jurisdiction over the place where the individual debtor actually and voluntarily resides or carries on business

or personally works for gain – section 179(2) of Insolvency Code, 2016.

“Adjudicating Authority” means the Debt Recovery Tribunal constituted under sub-section (1) of section 3 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 – section 79(1) of Insolvency Code, 2016.

However, in case of personal guarantors to corporate debtors, NCLT will be ‘adjudicating authority’ as per section 60 of Insolvency Code.

Powers of Adjudicating Authority (DRT)

The Debt Recovery Tribunal shall have overriding jurisdiction to entertain or dispose of (a) any suit or proceeding by or against the individual debtor (b) any claim made by or against the individual debtor (c) any question of priorities or any other question whether of law or facts, arising out of or in relation to insolvency and bankruptcy of the individual debtor or firm under this Code – section 179(2) of Insolvency Code, 2016.

Firm: “Firm” means a body of individuals carrying on business in partnership whether or not registered under section 59 of the Indian Partnership Act, 1932 (9 of 1932) – section 79(16) of Insolvency Code, 2016.

Claim: “Claim” means (a) a right to payment, whether or not such right is reduced to judgment, fixed, disputed, undisputed, legal, equitable, secured or unsecured (b) right to remedy for breach of contract under any law for the time being in force, if such breach gives rise to a right to payment, whether or not such right is reduced to judgment, fixed, matured, un-matured, disputed, undisputed, secured or unsecured – section 3(6) of Insolvency Code, 2016 [definition notified and effective from 1-11-2016].

Period of moratorium to be excluded for purpose of limitation

While computing the period of limitation specified for any suit or application in the name and on behalf of a debtor, the period during which there was moratorium shall be excluded – section 179(3) of Insolvency Code, 2016.

Civil court not to have jurisdiction

Civil court or any authority shall not have jurisdiction to entertain any suit or proceedings in respect of any matter on which DRT or DRAT have jurisdiction under Insolvency Code, 2016 – section180(1) of Insolvency Code, 2016.

No injunction shall be granted by any court, Tribunal or authority in respect of any action taken, or to be taken, in pursuance of any power conferred on DRT or DRAT under the Insolvency Code, 2016 – section180(2) of Insolvency Code, 2016.

Appeal against order of DRT

Appeal against order of DRT shall be filed with DRAT (Debt Recovery Appellate Tribunal) within 30 days. This period can be extended by further 15 days by DRAT if sufficient cause is shown – section 181 of Insolvency Code, 2016.

Appeal to Supreme Court

An appeal from an order of DRAT can be filed before Supreme Court within 45 days only on question of law. This period can be extended by further 15 days by Supreme Court if sufficient cause is shown – section 182 of Insolvency Code, 2016.

Debtor

The concerned debtor may by invoking Section 94 of the Code file an application for initiating insolvency proceedings in respect of himself. The application may either be submitted personally by the concerned debtor or through the resolution professional.

In the scenario where the debtor is a partner of a firm then in such a situation the concerned debtor may make an application for initiating insolvency proceedings with the approval of all or majority partners. While making application for initiating insolvency proceedings, the concerned debtor is required to comply with the perquisites thereafter he becomes eligible for making application for initiating the insolvency proceedings. The prerequisites that need to be complied prior to making an application are as follows:

• The debtor should not be an undischarged bankrupt;
• The debtor should be undergoing fresh start process in relation to his debts;
• No insolvency resolution proceedings should be in process in relation to the debts against the debtor;
• The debtor should not be undergoing bankruptcy proceedings
• No insolvency resolution proceedings should have been admitted during the preceding twelve months to be counted from the date on which a fresh application is filed for invoking insolvency resolution process.

By Creditor

A creditor for initiating insolvency resolution process in respect of individuals & partnership firm may make an application for the same either by himself, through a consortium with other creditors or through resolution professional. In the scenario where the debtor is a partnership firm then the creditor can make an application against either of the partners or the firm.

The application as made by the creditor(s) shall contain the required attachments as are prescribed in the Code. The creditor shall also furnish a copy of the application as filed to the debtor for hid reference. The creditor shall while making the application ensure that the application in the appropriate format as prescribed in the Code.

Interim Moratorium

On an application being filed by either of the aforesaid, an interim moratorium shall come into force from the date on which application for initiating insolvency proceedings is made and thereafter shall cease to have an effect on the date of admission of the application by DRT.

Appointment of Resolution Professional

The Resolution professional is the key person in the insolvency resolution process. He may be said to be the driver of the entire proceedings that fall within the ambit of the insolvency resolution process.

Pre-existing Resolution Professional

There may be scenarios where application for initiating insolvency resolution process is filed by the Resolution Professional on behalf of the debtor or creditor as the case may be. Under this state the adjudicating authority i.e. DRT shall direct the board (IBBI) to verify that as on date there is no disciplinary proceeding pending against the proposed resolution professional. The verification shall be directed to conducted by the board within a period of seven days from the date of receipt of application. The board shall on receipt of direction report its decision i.e. recommending appointment or rejection of resolution professional to the directing adjudicating authority within seven days of receipt of direction.

Fresh Appointment

In the cases where application for initiating insolvency proceedings is filed by the debtor or creditor without the involvement of resolution professional then in such situation the adjudicating authority shall direct the board to nominate a resolution professional who can drive forward the initiated insolvency resolution process. On receipt of the aforesaid direction, the board shall nominate a suitable resolution professional within a period of ten days. The board while nominating resolution professional shall verify that no disciplinary proceedings are currently pending against the proposed resolution professional.

The adjudicating authority shall via order appoint the resolution professional as recommended or nominated above to drive forward the insolvency proceedings. The appointed resolution professional shall be provided a copy of the insolvency resolution process application as received by the adjudicating authority from the debtor or creditor.

Submission of Report by Resolution Professional

On receipt of the application as filed initiating for insolvency resolution process, the appointed resolution professional shall examine the application as submitted by the debtor or creditor within a span of ten days to be counted from the date of his appointment. Once the submitted application has been examined the resolution professional shall then prepare a report thereby recommending his decision as to whether the submitted application should be admitted or rejected.

The resolutions professional may for arriving at decision ask the debtor to prove repayment of the debts that are being claimed to be unpaid by the creditors. The report as compiled by the resolution professional shall clearly highlight the reasons based on which the decision related to admission or rejection of submitted application is undertaken. The resolution professional shall furnish a copy of his report to the concerned debtor or creditor as well.

Decision of Adjudicating Authority

Once the adjudicating authority receives the report as submitted by the resolution profession, it shall thereafter within a period of fourteen days pass an order either admitting the application or rejecting the same as, as it feels appropriate. In the scenario where application, as submitted for initiating insolvency resolution process, is admitted by the adjudicating authority, then the adjudicating authority may vide instructions conduct negotiations between the debtor and creditors to finalize a repayment plan.

The adjudicating authority shall furnish a copy of its order admitting or rejecting the application; report of resolution professional as submitted to the adjudicating authority and application as initially submitted for initiating insolvency resolution process to the creditor within a period of seven days from the date of passing the aforesaid order.

Moratorium Period

On the application for insolvency resolution process being admitted by the adjudicating authority, a moratorium period shall come into force and thereafter it shall terminate at the end of one hundred and eighty day commencing from the date on which application for insolvency resolution process is admitted by the adjudicating authority or the date on which order is passed by adjudicating authority on repayment plan. The similar situation as that of interim moratorium shall prevail during the moratorium period in relation to the debtor as well as his pending legal actions and debts.

Public Notice and Inviting Claim from Creditors

The adjudicating authority shall after admitting the application for initiating the insolvency resolution process issue a general public notice within a period of seven days from the date of passing order for the sake of inviting claims form all the creditors’ within a period of twenty-one days from the date of public notice.

The aforesaid notice shall be published in one English and one vernacular language newspaper. The notice shall also be affixed in the premises of adjudicating authority and shall also be displayed on the website of the adjudicating authority.

Registration of Claims of Creditors

The resolution professional is the sole authority where the claims are required to be registered by the creditors. Forgetting the claim registered the creditors may use of the following medium of communication: electronic communication; courier; speed post or registered post. 

Preparation of List of Creditors

After the invitation and registration of claims received from creditors, the resolution professional shall collate a list of creditors based on the information received from application as filed by debtor for initiating fresh start process and claims received from creditors. The resolution professional shall make best efforts to draft the said list within thirty days from the date of notice.

Repayment Plan

The debtor shall in collaboration with the resolution professional draft a layout of repayment plan which shall contain a proposal to creditors to restructure their debts. The repayment plan shall also authorize or grant the resolution professional various powers like: carrying on business off debtor on his behalf; realization of assets of debtor and administration or disposal of assets of the debtor.

Resolution Professional’s Report on Repayment Plan

The resolution professional shall after successfully draft of repayment plan submit the same along with report to the adjudicating authority within a period of twenty one days to be counted from the last date of submission of the claims.

The report as drafted by the resolution professional shall also highlight the date; time and place of the meeting if there appears need to summon meeting of creditors. While fixing date of meeting it should be note that date of meeting should not be less that fourteen days and at the same time not more than twenty eight days to be counted from the date of submission of report. Also while booking calendar for convening meeting the convenience and availability of creditors shall also be taken into consideration.

Calling Meeting of Committee of Creditors

The resolution professional shall after preparation of his report on repayment plan call meeting of committee of creditors by issuing a prior notice in this regard atleast fourteen days in advance to the finalized date of meeting.

The notice of the aforesaid meeting shall be provided to all the creditors mentioned in the list of creditors as chalked out by resolution professional. The notice of the meeting shall incorporate within it the address of adjudicating authority to whom the repayment plan along with the report of resolution professional on repayment plan was served supported by required annexures.

Convening Meeting of Committee of Creditors

The meeting once called shall be conducted in accordance with the procedures and provisions as are highlighted in the Code. During the course of the convened meeting the creditors may vide their decision approve, modify or reject the repayment plan as drafted by the resolution professional.

In the convened meetings creditors shall be eligible to vote in proportion to the voting share as assigned to them. The proportion of voting share shall be determined by the resolution professional. The secured creditors shall also be eligible to participate and vote in the convened meeting.

Seeking Approval of Creditors on Repayment Plan

The approval of creditors is a must requirement for carrying on any business on behalf of the debtor. In this regard approval of majority of creditors representing three fourth in value of the creditors that were present in person or via proxy at the convened meeting of committee of creditors is a mandatory requirement for seeking approval of repayment plan or any subsequent modification in the repayment plan therein.

Report of Convened Meeting of Creditors 

Once the meeting of creditors has been duly convened for seeking approval of the creditors, it shall the duty of the resolution professional to compile a report of the duly convened meeting of the creditors. The report as compiled above shall include the minute-to-minute details of all decisions and discussion that were made during the convened meeting.

Decision of Adjudicating Authority on Repayment Plan

On receipt of the report of the duly convened meeting of creditors, the adjudicating authority shall thereafter vide its decision either approve or reject the repayment plan. The adjudicating authority shall form its decision on the basis of the report of the convened meeting of creditors as received by it from the resolution professional.

The decision of the adjudicating authority as passed shall also contain the directions for implementing the approved resolution plan. In the scenario where the repayment plan is approved by the adjudicating authority then the approved repayment plan shall be in effect as if it was proposed by the debtor and thereafter the plan shall be binding on the creditors as mentioned in the repayment plan and also on the debtor.

Implementation of Repayment Plan

The repayment plan once approved by the committee of creditors and adjudicating authority shall come into force and thereafter commence to be in implementation. On coming of the repayment plan into execution it shall be the sole responsibility of the resolution professional to monitor the implementation and execution of the approved repayment plan.

If any hindrances arise in the smooth execution of the repayment plan then the resolution professional is free to approach the adjudicating authority for seeking the required directions that will enable the smooth execution of the approved repayment plan. On being satisfied by the plea as raised by the resolution professional the adjudicating authority shall pass the necessary directions in this regard.

Completion of Repayment Plan

The resolution professional shall make his best endeavours to complete the execution of repayment plan within the prescribed time limits in time bound manner. In this connection the resolution professional shall after the successful completion of repayment plan furnish the prescribed documents to the persons who are covered under the horizon of repayment plan and to the adjudicating authority as well.

The resolution professional shall ensure that the documents are furnished within duration of fourteen days from the completion of the repayment plan. If the resolution professional is unable to furnish the same within due time then in such a scenario he may approach the adjudicating authority for seeking extension in the time limit for furnishing the same. Once the adjudicating authority is satisfied then it shall grant an extension of not more than seven days to comply with the requirement.

Discharge Order

On time-bound and successful implementation of the approved repayment plan the resolution professional shall approach the concerned adjudicating authority for seeking a discharge order for debts as are mentioned in the repayment plan.

The resolution professional may approach the adjudicating authority for seeking discharge order only if the approved repayment plan provides for early discharge or discharge on completion of repayment plan. The, discharge order as granted by the adjudicating authority shall also be furnished to the board for its record.

The insolvency resolution process is the initial step that can be taken against the defaulting individual & partnership firms. On successful completion of insolvency resolution process or during the course of the insolvency resolution process an application can be made for a bankruptcy order.

Insolvency and Bankruptcy Code (Amendment) Ordinance, 2019 was issued on 28-12-2019. This has been converted into Insolvency and Bankruptcy (Amendment) Act, 2020 w.r.e.f. 28-12-2019.

The purpose is to give the highest priority in repayment to last mile funding to corporate debtors to prevent insolvency, in case the company goes into corporate insolvency resolution process or liquidation, to prevent potential abuse of the Code by certain classes of financial creditors, to provide immunity against prosecution of the corporate debtor and action against the property of the corporate debtor and the successful resolution applicant subject to fulfilment of certain conditions, and in order to fill the critical gaps in the corporate insolvency framework.

As per preamble to the Insolvency Code, the purpose of this Act is as follows:

• Consolidate and amend the laws relating to reorganisation and insolvency resolution of corporate persons, partnership firms and individuals
• In a time, bound manner
• For maximisation of value of assets of such persons
• To promote entrepreneurship
• Availability of credit
• Balance the interests of all the stakeholders including alteration in the order of priority of payment of Government dues
• Establish an Insolvency and Bankruptcy Board of India (IBBI)

Introduction of this Code has done away with overlapping provisions contained in various laws:

• Sick Industrial Companies (Special Provisions) Act, 1985
• The Recovery of Debts Due to Banks and Financial Institutions Act, 1993
• The Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002
• The Companies Act, 2013.

The provisions of the Code shall apply for insolvency, liquidation, voluntary liquidation or bankruptcy of the following entities:

• Any company incorporated under the Companies Act, 2013 or under any previous law.
• Any other company governed by any special act for the time being in force, except in so far as the said provision is inconsistent with the provisions of such Special Act.
• Any Limited Liability Partnership under the LLP Act 2008.
• Any other body being incorporated under any other law for the time being in force, as specified by the Central Government in this regard
• Partnership firms and individuals

The major amendments are as follows:

• Immunity from prosecution of corporate debtor for offence committed prior to CIRP, if there is change of management [section 32A(1)]
• Protection to property of corporate debtor in relation to offence committed prior to CIRP, if there is change of management [section 32A(2)]
• Scope of ‘interim finance’ enhanced to provide for last mile funding to prevent insolvency [section 5(15)]
• Minimum number of applicants under section 7(1) in case of numerous small financial creditors (like holders of public deposits or debentures or home buyers).
• Licenses, quotas, essential supplies cannot be cut during period of moratorium, so long as current dues are paid [section 14]
• Corporate debtor can file CIRP against another corporate debtor [section 11]
• Insolvency Professional must be appointed on the insolvency commencement date itself [section 16(1)]

Social Perspectives

From a social efficiency point of view bankruptcy proceedings cannot be mingled with other legal cases, as illustrated by the arguments above. The following section focusses on some of the salient features of the Code which explicitly or implicitly address the issues raised in the preceding section.

• To consolidate and amend the laws relating to re-organization and insolvency resolution of corporate persons, partnership firms, and individuals.
• To fix time periods for execution of the law in a time-bound settlement of insolvency (i.e. 180 days).
• To maximize the value of assets of interested persons.
• To promote entrepreneurship
• To increase the availability of credit.
• To balance all stakeholder’s interest (including alteration). Balance to be done in the order of priority of payment of Government dues.
• To establish an Insolvency and Bankruptcy Board of India as a regulatory body for insolvency and bankruptcy law.
• To establish higher levels of debt financing across a wide variety of debt instruments.
• To provide painless revival mechanism for entities.
• To deal with cross-border insolvency.

Legal Perspectives

Legal framework: complex, fragmented. No concept of time value of money.

• Insufficient institutional capacity: courts, professional services, information systems. No capacity to deal with the demands of a growing economy. Laws such as RDDBFI and SARFAESI did not improve recovery.
• Unclear priority between laws and between fora. Conflicts are decided by litigation. Lack of clarity causes delays.
• Arbitrage: differential access, varied procedures. Forum shopping. Stacked in favour of banks and FIs.
• Economic Perspectives.

Concern

• Low predictability of resolution
• High pendency
• High cost, poor recovery.

In failure, limited liability should be respected.

• Limited liability company is a contract between equity and debt.
• As long as debt obligations are met, equity owners have complete control, and creditors have no say in how the business is run.
• When default takes place, control is supposed to transfer to the creditors; equity owners have no say.
• Speed of resolution is important so that capital and labour can be put back to work quickly.
• Insolvency and bankruptcy resolution should be an economic decision; not a judicial decision

A combination of limited liability and strong insolvency process allows firms to undertake risky ventures while protecting creditors’ rights. The bargain:

• Firms’ shareholders accept disclosure
• They agree to work with lenders in insolvency
• In return their liability gets capped

Financial Perspectives

The rise of limited liability needs to be accompanied by:

(a) Strong recovery laws

(b) Strong insolvency law

Where lenders can enforce repayment, there is:

(1) Higher credit access

(2) At lower price

(3) With longer maturity

(4) Lower collateral requirement

(5) From a greater number and variety of lenders

The Insolvency and Bankruptcy recognized the NCLT as constituted under section 408 of the Companies Act 2013 to be the adjudicating authority for the purpose of insolvency and liquidation of corporate persons. The proposal for constituting the NCLT was made by the Eradi Committee.

• Once the resolution plan which is approved by the COC and placed before the Adjudicating authority for approval, it will have to ensure that whether the resolution plan has met the following requirements as per Section 30(2) of the Code.
• Approval of the COC with 66% Voting share the resolution plan
• Whether the resolution plan is fulfilled the requirements of Section 30(2) of the Code Section 30(2) of the Code says that the resolution plan should meet the following requirements
• It should provide for payment of insolvency and resolution Process costs
• It must provide for the payment of debts of Operational Creditors which should not be less than the amount to be paid as per Section 53 in case of liquidation of the corporate debtor or amount to be paid in the case of resolution of the corporate debtor.
• It must provide for management of the affairs of the Corporate Debtor after approval of the resolution plan.
• Implementation and supervision of the resolution plan.
• It must not contravene any of the provisions of the law.
• It should confirm to the such other requirements as may be specified by the Board.

NCLT

The adjudicating authority for corporate person as mentioned above shall be the NCLT having territorial jurisdiction over the place where the registered office of the corporate person is located. It is important to note that incase where a corporate insolvency resolution process or liquidation proceedings of a corporate debtor is pending before NCLT, then the application for insolvency resolution or bankruptcy of personal guarantor of such corporate debtor shall also be filed before the same NCLT as that of the corporate debtor.

If the insolvency process or bankruptcy proceedings of personal guarantor of the corporate debtor is appending before any court or tribunal then it shall in such a situation shall transferred to the same adjudicating authority which is dealing with the insolvency resolution process or liquidation proceedings of the corporate debtor.

NCLAT

Once the application under IBC is admitted by the NCLT from the corporate person then any person aggrieved by the order of NCLT may prefer an appeal before the NCLAT. Every appeal shall be filed before NCLAT within thirty days. An appeal can be filed beyond thirty days if NCLAT is satisfied that there was a sufficient cause for not being able to file within the thirty days duration , but then within fifteen days period after thirty days only.

Supreme Court

If a person is not satisfied and is aggrieved by the order of NCLAT then in such a case he can file an appeal to the Supreme Court. The application to be filed shall be based only on question of law that arouse out of the order only.

The application before Supreme Court shall be filed within forty-five days from the date of receipt of order of NCLAT. However, the Supreme Court may allow extension beyond forty-five days if it is satisfied that person was prevented by sufficient clause. The extension allowed shall be only fifteen days beyond the forty-five days duration.

Offences and penalties in relation to corporate insolvency

The Insolvency and Bankruptcy Code, 2016 makes stringent provisions for punishments to fraudulent persons. These include imprisonment. Such offences have to be tried in criminal courts only.

Offences under of this Code shall be tried by the Special Court established under Chapter XXVIII of the Companies Act, 2013.

Court shall not take cognizance of any offence punishable under this Act, except on a complaint made by the Board (IBBI) or the Central Government or any person authorised by the Central Government in this behalf section 236(2) of Insolvency Code, 2016.

The provisions of the Code of Criminal Procedure, 1973 shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Court shall be deemed to be a Public Prosecutor.

The Consumer Protection Bill, 2019 was introduced in Lok Sabha by the Minister of Consumer Affairs, Food and Public Distribution, Mr. Ram Vilas Paswan on July 8, 2019. The Bill replaces the Consumer Protection Act, 1986.

Empowered to:

• Conduct investigations into violations of consumer rights and institute complaints/prosecution.
• Order recall of unsafe goods and services.
• Order discontinuance of unfair trade practices and misleading advertisements.
• Impose penalties on manufacturers/endorsers/publishers of misleading advertisements.

Consumer: A consumer is defined as a person who buys any good or avails a service for a consideration.  It does not include a person who obtains a good for resale or a good or service for commercial purpose.  It covers transactions through all modes including offline, and online through electronic means, teleshopping, multi-level marketing or direct selling.

Rights of consumers: Six consumer rights have been defined in the Bill, including the right to:

• Be protected against marketing of goods and services which are hazardous to life and property.
• Be informed of the quality, quantity, potency, purity, standard and price of goods or services.
• Be assured of access to a variety of goods or services at competitive prices.
• Seek redressal against unfair or restrictive trade practices.

Central Consumer Protection Authority: The central government will set up a Central Consumer Protection Authority (CCPA) to promote, protect and enforce the rights of consumers.  It will regulate matters related to violation of consumer rights, unfair trade practices, and misleading advertisements.  The CCPA will have an investigation wing, headed by a Director-General, which may conduct inquiry or investigation into such violations.

CCPA will carry out the following functions, including:

• Inquiring into violations of consumer rights, investigating and launching prosecution at the appropriate forum.
• Passing orders to recall goods or withdraw services that are hazardous, reimbursement of the price paid, and discontinuation of the unfair trade practices, as defined in the bill.
• Issuing directions to the concerned trader/ manufacturer/ endorser/ advertiser/ publisher to either discontinue a false or misleading advertisement, or modify it.
• Imposing penalties.
• Issuing safety notices to consumers against unsafe goods and services.

Penalties for misleading advertisement: The CCPA may impose a penalty on a manufacturer or an endorser of up to Rs 10 lakh and imprisonment for up to two years for a false or misleading advertisement.  In case of a subsequent offence, the fine may extend to Rs 50 lakh and imprisonment of up to five years.

CCPA can also prohibit the endorser of a misleading advertisement from endorsing that particular product or service for a period of up to one year. For every subsequent offence, the period of prohibition may extend to three years.  However, there are certain exceptions when an endorser will not be held liable for such a penalty.

Consumer Disputes Redressal Commission: Consumer Disputes Redressal Commissions (CDRCs) will be set up at the district, state, and national levels.  A consumer can file a complaint with CDRCs in relation to:

• Unfair or restrictive trade practices.
• Defective goods or services.
• Overcharging or deceptive charging.
• The offering of goods or services for sale which may be hazardous to life and safety.

Complaints against an unfair contract can be filed with only the State and National   Appeals from a District CDRC will be heard by the State CDRC.  Appeals from the State CDRC will be heard by the National CDRC. Final appeal will lie before the Supreme Court.

Jurisdiction of CDRCs: The District CDRC will entertain complaints where value of goods and services does not exceed Rs one crore.  The State CDRC will entertain complaints when the value is more than Rs one crore but does not exceed Rs 10 crore. Complaints with value of goods and services over Rs 10 crore will be entertained by the National CDRC.

Product liability: Product liability means the liability of a product manufacturer, service provider or seller to compensate a consumer for any harm or injury caused by a defective good or deficient service. To claim compensation, a consumer has to prove any one of the conditions for defect or deficiency, as given in the Bill.

Punishment for Manufacture or Sale of Adulterated/Spurious Goods:

• In case of the first conviction, a competent court may suspend any licence issued to the person for a period of up to two years and in case of second or subsequent conviction, may cancel the licence permanently.

Simplification of the Consumer Dispute Adjudication Process:

• Empowering the State and District Commissions to review their own orders.
• Enabling a consumer to file complaints electronically and in consumer commissions that have jurisdiction over the place of his residence.
• Video-conferencing for hearing and deemed admissibility of complaints if the question of admissibility is not decided within the specified period of 21 days.

Alternate Dispute Resolution Mechanism of Mediation:

• A complaint will be referred by a Consumer Commission for mediation, wherever scope for early settlement exists and parties agree for it.
• The mediation will be held in the Mediation Cells which will be established under the aegis of the Consumer Commissions.
• There will be no appeal against settlement through mediation.

Civil Cases

In these cases, a person or an organization asks a judge to settle a civil problem, such as

• A problem concerning an inheritance,
• A problem involving a contract, or
• A family problem, such as divorce or custody of children.

Criminal Cases

The reason these cases come to court is always the same: a person is taken to court because she is accused of a crime. The judge, and sometimes a jury, must consider the evidence presented during a trial to decide whether the accused is guilty or innocent.

Most crimes and their punishments are described in the Criminal Code of Canada. Some crimes involve other people, including

• Assault
• Murder
• Sexual assault
• Identity theft

Civil Cases	Criminal Cases
The principle is always the same: A sues B for causing damage to A or to something belonging to A.	The principle is always the same: a person is accused of a crime (e.g., murder, assault, identity theft).
How does a person cause damage? A person causes damage, for example, by breaking a contract, by breaking an object belonging to someone, or by hurting someone.	A crime can occur even if there is no “immediate” victim (e.g., the crime of drug possession). In India, people are considered innocent until the evidence proves they are guilty.
Civil Law is a general law which solves disputes between 2 organisations or individuals. As per Civil Law the wrongdoer will have to compensate the affected organisation or individual. Civil Law deals with Property, Money, Housing, Divorce, custody of a child in the event of divorce etc.	Criminal Law deals with offences that are committed against the society. It mets out varying degrees of punishment commensurate with the crime committed. Criminal Law will deal with serious crimes such as murder, rapes, arson, robbery, assault etc.
The objective of Civil Law is to protect the rights of an individual or organisation and make sure that he or the concerned organisation receives the compensation for the wrongs that they have suffered.	The purpose of Criminal Law is to punish the wrongdoers and protect society, maintain law and order.
In the case of Civil Law, the power of the court is to pass judgement or injunction to compensate for damages caused to the aggrieved party.	In the case of Criminal Law, the powers of the court are charging a fine, imprisonment to the guilty of a crime, or discharge of the defendant.

Law

The law is described as the set of rules and regulation, created by the government to govern the whole society. The law is universally accepted, recognized and enforced. It is created with the purpose of maintaining social order, peace, justice in the society and to provide protection to the general public and safeguard their interest. It is made after considering ethical principles and moral values.

The law is made by the judicial system of the country. Every person in the country is bound to follow the law. It clearly defines what a person must or must not do. So, in the case of the breach of law may result in the punishment or penalty or sometimes both.

Ethics

Ethics are moral values and principles that govern the behaviour of an individual. Ethics help to choose what is right and wrong. It is a collection of fundamental concepts and principles of an ideal human character. The principles help us in making decisions regarding, what is right or wrong. It informs us about how to act in a particular situation and make a judgment to make better choices for ourselves. Ethics are the code of conduct agreed and adopted by the people. It sets a standard of how a person should live and interact with other people.

Types:

• Normative ethics
• Personal ethics
• Social ethics
• Professional ethics

	Ethics	Law
	Refers to morals and principles that control the behaviour of individuals in society.	Refers to a set of rules and regulation that govern behaviour in society and they enforced by authority
Codes	Individuals are required to conform to them	Individuals are required to obey them
Governed By	Individual, Legal and Professional norms	Government
Violation	No penalties and punishment	Lead to penalties and punishment
Type	Tend to be non-written	Occur in a written document
Makers	Religious leaders, philosophers, and elders	Lawyers and legislature
Application	Universal and can be applied anywhere	Country, state and place of crime
Objective	Help people to choose what is right or wrong	Maintain social order and peace in the society
Binding	Do not have a binding thing	legal binding
Characteristics	It cannot be enforced. It need not be published. It may or may not be consistent. It is not necessary to obey.	It is enforced. It needs to be published. It is consistent. It needs to be obeyed.

General Principles of Precedents:

The High Courts in India are bound by the law declared by the Supreme Court. Decisions of the Supreme Court are binding only so long as they have not been overruled by the Supreme Court. The decisions of a High Court are binding on all the courts below it within its jurisdiction. The judgment of a particular High Court, is not binding on other High Courts. The High Courts are the courts of co-ordinate jurisdiction. Therefore, the decision of one High Court is only of persuasive value for other High Courts. In High Courts generally appeals are heard by a Single Judge, some appeals such as murder, specials appeals etc. are heard by two judges. Different High Courts have their different rules in this respect. When an appeal involves some important and complicated point of law, it is referred to a Larger Bench. A Bench of two judges is called the Division Bench. Three or more judges constitute a Full Bench. The decisions of a larger bench are binding on a smaller bench. A bench is not bound by the decisions of another bench of equal authority.

Plaintiff

A plaintiff (Π in legal shorthand) is the party who initiates a lawsuit (also known as an action) before a court. By doing so, the plaintiff seeks a legal remedy. If this search is successful, the court will issue judgment in favor of the plaintiff and make the appropriate court order (e.g., an order for damages). “Plaintiff” is the term used in civil cases in most English-speaking jurisdictions, the notable exception being England and Wales, where a plaintiff has, since the introduction of the Civil Procedure Rules in 1999, been known as a “claimant”, but that term also has other meanings. In criminal cases, the prosecutor brings the case against the defendant, but the key complaining party is often called the “complainant”.

In some jurisdictions, a lawsuit is commenced by filing a summons, claim form or a complaint. These documents are known as pleadings, that set forth the alleged wrongs committed by the defendant or defendants with a demand for relief. In other jurisdictions, the action is commenced by service of legal process by delivery of these documents on the defendant by a process server; they are only filed with the court subsequently with an affidavit from the process server that they had been given to the defendant according to the rules of civil procedure.

Defendant

A defendant is a person who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case.

Terminology varies from one jurisdiction to another. In Scots law, the terms “accused” or “panel” are used instead in criminal proceedings and “defender” in civil proceedings. Another term in use is “respondent”.

Petitioner

A petitioner is a person who pleads with governmental institution for a legal remedy or a redress of grievances, through use of a petition. The petitioner may seek a legal remedy if the state or another private person has acted unlawfully. In this case, the petitioner, often called a plaintiff, will submit a plea to a court to resolve the dispute. On the other hand, the petitioner may be complaining against the law it to “… make no law… abridging… the right of the people peaceably to assemble, and to petition the government for redress of grievances”.

A petitioner need not seek a change to an existing law. Often, petitioners speak against (or in support of) legislative proposals as this progress.

Respondents

A respondent is a person who is called upon to issue a response to a communication made by another. The term is used in legal contexts, in survey methodology, and in psychological conditioning. In legal usage, this specifically refers to the defendant in a legal proceeding commenced by a petition, or to an appellate, or the opposing party, in an appeal of a decision by an initial fact-finder.

Public prosecutors

A Public Prosecutor is considered as the agent of the state to represent the interest of common people in the criminal justice system. The prosecution of the accused is the duty of the state but not individually the duty of the aggrieved party. They are appointed in almost all countries. The Public Prosecutor is defined in Section 24 of Cr.P.C. They serve as the basic principle of Rule of Law i.e. auld alteram partem (no person shall be condemned unheard).

Reasons for the Appointment of Public Prosecutor

Whenever any crime is committed against a group or individual, it is assumed that it has been committed against society. It is the duty of the state to provide justice to any group of society or person who is affected by the crime. In India, it is necessary that the criminal justice system should function within the limits of the Indian Constitution, which means that it is necessary for the Public Prosecutor to act in accordance with the principles of:

• Equality before law
• Protection against double jeopardy
• Protection against self-incrimination
• Protection against ex-post law
• Right to life and personal liberty except procedure established by law
• Presumption of innocence until proven guilty
• Arrest and detention must be in accordance with the provisions of Cr.P.C.
• Equal protection of laws
• Speedy trial
• Prohibition of discrimination
• Right of accused to remain silent

Advocate General

In India, an advocate general is a legal advisor to a state government. The post is created by the Constitution of India and corresponds to that of Attorney General for India at the union government level. The Governor of each state shall appoint a person who is qualified to be appointed as judge of High Court as the Advocate General.

Solicitor general of India

The Solicitor General of India is subordinate to the Attorney General for India. They are the second law officer of the country, assists the Attorney General, and is assisted by Additional Solicitors General for India. Currently, the Solicitor General of India is Tushar Mehta. Like the Attorney General for India, the Solicitor General and the Additional Solicitors General advise the Government and appear on behalf of the Union of India in terms of the Law Officers (Terms and Conditions) Rules, 1972. However, unlike the post of Attorney General for India, which is a Constitutional post under Article 76 of the Constitution of India, the posts of the Solicitor General and the Additional Solicitors General are merely statutory. Appointments Committee of the Cabinet(ACC) recommends the appointment and president officially appoints the Solicitor General. The proposal for appointment of Solicitor General, Additional Solicitor General is generally moved at the level of Joint secretary/Law Secretary in the Department of Legal Affairs and after obtaining the approval of the Minister of Law & Justice, the proposal goes to the ACC and then to the president.

Judicial Magistrate of First class

Courts of Judicial Magistrate of First Class are at the second lowest level of the Criminal Court structure in India. According to the Section 11 of the Criminal Procedure Code, 1973 (CrPc), a Court of Judicial Magistrate of First Class may be established by the State Government in consultation with the High Court of the respective state at such places in the district and in any number by a notification.

According to Section 15 of the CrPc, a judicial magistrate is under the general control of the Sessions Judge and is subordinate to the Chief Judicial Magistrate.

According to Section 29 of the CrPc., a Judicial Magistrate of First Class may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding ten thousand rupees or of both.

Civil Judge

The may by general or special order invest any Civil Judge within such local limits and subject to such pecuniary limitation as may be prescribed in such order, with all or any of the powers of a District Judge or a District Court as the case may be under any special law.

Every order of the District Judge passed on appeal under subsection (2) from the order of a Civil Judge shall be subject to an appeal to the High Court under the rules contained in the Code of Civil Procedure applicable to appeals from appellate decrees.

The Judges of such Subordinate Courts shall be appointed by the Government and shall be called Civil Judges.

Sessions (criminal court judge)

Sessions court has the power to impose the full range of penalties for criminal acts, including the death penalty.

Originally, the Sessions Courts heard each case continuously in sessions and delivered judgements immediately on completion of arguments. Hence the name ‘Sessions Court’ meant that the cases would be disposed off expeditiously. One of the important reasons for delays in the Indian and Pakistani Judicial System, is that the concept of ‘Sessions’ is observed only in breach due to repeated adjournments, loop holes in the case papers and backlog of cases. The Government of India has not found a solution to this endemic problem.

Sections 225 to 237 of The Code of Criminal Procedure deal with the procedure in trials before a Court of Sessions. In case the office of the Sessions Judge is vacant, the High Court can make necessary arrangements for any urgent matter or application that is pending before the court mentioned above to be dealt with by an Additional or an Assistant Sessions Judge or in their absence, by a Chief Judicial Magistrate (CJM).

Metropolitan magistrate

The High court appoints Chief Metropolitan Magistrate for every metropolitan court. The High court may also appoint Additional Chief Metropolitan Magistrate for an area, with all or any of the powers of a Chief Metropolitan Magistrate, as may be directed by the High Court. Other than Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate, there are also Metropolitan Magistrates also known as Magistrate of the first class who work as subordinates of Chief Metropolitan Magistrate. Any two or more metropolitan magistrates may, subject to the rules made by the CMM, sit together as a bench. All metropolitan magistrates including the ACMMs and benches of general magistrates are subordinate to the CMM.

Economic offences

The term economic offences define those crimes which are of an economic nature. These offences are committed while in the course of some kind of economic or business activity. Although in some parts of the world, like the United States, the term economic offences have been defined, a rigorous definition of this term is still lacking in India. This is the reason why it is difficult to pinpoint the kinds of crimes that come under the term of economic offences in India.

The National Crimes Report Bureau of India still classifies only specified acts under the term economic offences. Activities like company frauds, counterfeiting of coins, and some of the terrorist activities even come under the term Economic offences in the Indian context provided by the NCRB. While certain explanations are provided for this term it still lacks a proper definition which is not vague or ambiguous in nature.

Types of Economic Crimes

Economic offences in India can be classified into three categories. These categories of economic offences are:

• Emerging technological economic crimes that include credit card frauds, counterfeiting, cyber crimes etc.
• Traditional economic crime which includes corruption, smuggling, bogus imports etc.
• Crimes through which proceeds of transnational organized crime are transmitted abroad like money laundering.