New Law Minister

Kapil Sibal takes the charge of Union Law Ministry as Ashwani Kumar resigned. 

Back to ‘family’ at CDS – How to push false pride under the carpet! Anonymous

I went to the CDS campus today hearing of the great tumult there, news of which has been appearing off and on in the press. I was just curious. I know personally one of the SEWA ladies; she told me her version of events. The students, of  course, have been venting their ire amply. In the past few days, I have also seen many of their comments in FB which made me want to puke, partly because of the fact that the faculty members who they revile now were fawned upon just a few days back. Normal people cannot help marveling at such extraordinary ability to reverse emotions towards the same object and at the same time, land on all four emotional feet.
But more importantly, what rattled me most was the sheer idiocy of the writing — it appears that a good many of these people cannot reason from premises to conclusion, follow the elementary rules of identifying evidence and carrying out analysis, build hypotheses, distinguish arguments from assertions, and refrain from projecting one’s own petty little grouse against the authorities as the Universal Problem of All Humanity, amen! On the contrary, the SEWA lady, who is well past the prime of her youth, was cuttingly sharp in her observations. One of the presently-serving canteen staff, she told me with much pain that they had been quite like mothers to these students. Then she added, knowing that she had to back up that with evidence: “Chummathalla – not without basis, daughter! When there was the hartal, all of 48 hours, we stayed back here to cook for these kids. My children ate bread and bananas at home but since these students would have to go without food since everything would be closed, we stayed there like we were their family. And this is what they do to us!” Clearly, she knew that evidence had to be produced if any claim had to become an argument.
So the privileged research scholars of CDS are then a lot like the lowly likes of us, who struggle in Kerala’s universities: they seem generally clueless. Yes,privileged — even though the universities of Kerala are much better supported financially, not a lot trickles down to the students . And in other ways too. For example, I cannot write this in my name because it could well feed into department politics back home. But then, they also seemed equally capable of violence as any of the political . On FB, a faculty member who asked for a fair hearing of the SEWA’s version was being shouted, booed, jeered, and also asked to ‘behave’ herself! And it appears they can be viciously casteist but in an amazingly ‘careful’ way! For instance, while this upper class, elite feminist who they probably need to correct their drafts, give references and so on, was let off with relatively inane booing, one of the students did not hesitate to hint in public that the SEWA ladies could be potentially involved sexually with the head of the institution! Obvious, isn’t it?
CDS always looks so self-enclosed, so out of bounds, its students move so closely among themselves, so older students making a hesitant entry back into studies, mostly visitors to their library, are almost instantly intimidated by their self-assurance. I have overheard them moan about presentations and classes and seminars and felt thoroughly envious– they are, ah, developing their minds, while most of us studying outside are spending a lot of our time twiddling our thumbs, watching department wars and waiting for the outcomes, and generally managing to read what we can, hoping and praying that whatever we are doing will be somehow recognized as ‘research’. So the CDS students’ FB writing was indeed a revelation to me.
I reached there at noon, looking around closely, hoping to see some remnants of the protest that we ‘outsiders’ had heard of with so much awe. On FB they seemed triumphant that they had pummeled the ‘administration’ proper, scared to death the faculty and dragged their pride to the dust. But climbing up the steps that lead to the main building, I found everything as usual, quiet. Come on, I thought, the aftermath of the rebellion can’t be so peaceful! I didn’t step into the main building; it was somewhat past lunch-time, and so I thought the canteen must be the place where one might be able to see some action! So I turned and walked down the road towards the canteen, encountering on the way, a set of handmade posters on the wall — which, to my great surprise, said ‘SEWA sisters, we are not your enemies’, and generally claimed that the conflict was not between SEWA and the students, but due to some evil ‘administration’.
Now, this was a problem to me. I have had the occasion to obtain a temporary membership at the CDS library and the quickness with which it had been granted to me nearly took my breath away. Not fair, I’d thought then, having run from pillar to post to secure various papers and other documents in a university in Kerala (which nearly gave me an aversion to studies in general).But since my knowledge of the protest was largely from newspapers, I was also confused: as far as I knew, the first reports all said that the canteen service provider indulged in casteism? And reports today morning, as well as the SEWA lady’s account, both said that these students had accused SEWA and the head of the institution.So how could they suddenly turn into ‘sisters’? So what about the sexual promiscuity that the student hinted at? Or now that SEWA women have become the ‘sisters’ of these angels in human form, maybe their taint has vanished? What about the corruption charges they made on FB – do they change now that SEWA women are ‘sisters’ of the CDS students? And if the charges still hold, is it becoming to adopt the corrupt as sisters? And why on earth are they so reluctant to pay a little more, if these ladies were indeed their ‘sisters’?A journalist I know told me that the SEWA has asked for a rise of daily food price of Rs 20, which was brought down to Rs 8! Also, why were they so reluctant to hear their ‘sisters’ side and not just their ‘brother’s? And is it not a truth of all times that food served by our mothers and sisters is, verily, ambrosia?  Since they do believe in this apparently, why not show more patience? My questions were answered finally by one poster which said ‘we are not against SEWA, we are for public tendering’ [of the canteen]. So the family rhetoric is merely appeasement; it does not mean any real trust, which we are always lectured about as existing uniquely within the family!
‘Sisters’ indeed! People who couldn’t give those poor women the dignity of the worker or a place in the radical discourse of lower caste assertion, suddenly granting them unconditional entry into the metaphorical family! What sort of family, I wonder? The traditional joint family I suppose? How interesting that the champions of the democratic spirit should turn to this ancient institution! What dishonesty and such pathetic naiveté!  Did they think we would just swallow their statements whenever they gave them and in the same order? This seems to be the ultimate nauseating ploy to avoid an honest apology. The CDS canteen was perfectly fine; I have eaten lunch there several times. The food is simple, cheap, and very clean. We are allowed to self-serve the rice and some curries generously. There is good hot water and buttermilk. Of course, there is no fancy stuff, no aginomoto or whatever – but then, this is everyday food! But then false pride – that comes from being admitted into a hallowed group whose reputation is derived from the achievements of the past generations – stands in the way of making a decent apology.
I think these silly posters reveal a most infantile attitude. They point to a generation which may be top-class in economics, but rock-bottom in ethics or plain human decency!

May 10, 2013

by jdevika

This is a guest post by Anonymous

Source : kafila.org

Exemption from Takeover Regulations for Gift of Shares to Family Trust

SEBI has granted an exemption to an acquirer from making an open offer under the SEBI Takeover Regulations in the case involving Gujarat Organics Limited (the company). In that case, the promoter Mr. Ashwin S. Dani, owns 71.15% shares in the company, and proposes to transfer it by way of a gift to a private trust HD Trust, of which he is one of the trustees. The beneficiaries of the trust are his family members. The acquirer, HD Trust, does not hold any shares in the company, while Mr. Dani has been shown as a promoter for more than 3 years. SEBI granted the exemption for the transfer because this was an inter se reorganization of holdings that does not alter the control of the company in any way. Moreover, it was a gift and merely a private family arrangement to facilitate succession planning.

This is understandable because there is no change of effective control of the company, and an exemption order was sought from SEBI only because the transaction may not have satisfied the technical requirements for an automatic exemption.

Source : indiacorplaw.blogspot.in

Posted under Miscellaneous May 9,2013

Ground Report on the Real Estate Mafia’s Reign of Terror in Noida: Bigul Mazdoor Dasta

This is a guest post by Bigul Mazdoor Dasta  Noida is one among those places which are highlighted as the hub of the ‘emerging’ and ‘shining’ India. The glittery shopping malls, world class expressway, flyovers, F1 International circuit, luxury apartments, villas etc. are cited as the symbols of India’s ‘growth story’ and Noida has all of these. For the last couple of decades, the mainstream corporate media has been busy selling this growth story to the emerging urban upper middle class; in the process making them a customer of artificially inflated dreams such as having one’s own luxurious house. But, curiously, the harrowing stories of those whose labour power is responsible for this so called development are conspicuous by their absence in the mainstream media’s narrative. The labourers come into the news only when some untoward incident happens and they are immediately held responsible for any such incidents without carrying out any investigation. One such horrendous incident took place on April, 28 at one of the hundreds of construction sites in Noida in which the security guards of the site opened fire on the labourers and in the process injuring some of them. On the morning of the April 28, the workers of the 3C Lotus Panache company’s constructions site at Noida’s Sector 110 witnessed the naked reign of terror by the company’s management. At the beginning of the morning shift at around 8 a.m., the workers had reached the construction site to join the construction work of the multi-story apartment complex, but they had to stand in a big queue because the security guards at the gate were taking a long time to intensively check each worker and make an entry. When some workers protested against this lax attitude of the guards, saying that they had to listen to the supervisor’s abuses if they were late even by one minute, a heated exchange took place between the security guards and workers and suddenly the guards started firing indiscriminately over the workers. As per the media reports, two workers were injured, but when a team of Bigul Mazdoor Dasta visited the workers settlement adjacent to the construction site, some workers said that the number of the injured workers could be four which includes a child as well and one of the workers is seriously injured and his life is in danger. As per the records of the district hospital in Noida, only one worker was admitted on April 28. Other workers were admitted to some private hospital.

The workers settlement adjacent to the construction site where the incident took place

On probing further, the workers revealed that the security guards and supervisors used to routinely interact with the workers in an abusive manner. Some workers said that the contractor did not give payment to the workers for last 3 months. The workers also revealed that the average daily wage of an unskilled construction worker was Rs. 140-150 whereas that of the skilled worker was around Rs 250. When the representatives of the Bigul Mazdoor Dasta told them that it was even below the minimum wages fixed by the government (which itself is ridiculously low), the workers said that whenever they demanded to increase the wages, the contractor had this to say that there are enough number of people ready to work on this wage and if they have to work on this wage then carry on or else they can leave.

A scene of the workers settlement showing the pathetic conditions in which the workers are condemned to live

The living conditions of the workers’ residence, a temporary settlement made of tin sheds, can be at best described as sub-human. Thousands of workers live in this settlement which can easily be called a construction labour camp. There is no drinking water facility. The workers have to buy the water. The electricity is temporary and quite infrequent. The toilet facilities are totally inadequate and hygiene conditions are pathetic. Due to the absence of a drainage system, water logging is a common problem faced by the workers in the rainy season. And to top it all, this entire settlement will be uprooted once the construction project is over and the workers will have to move to another equally bad or even worse settlement adjacent to a new construction site. These stories of naked exploitation do not appear in the mainstream corporate media. As it often happens, in this case as well, the reports by local and the national media disregarded the plight of the workers and focused mainly on the violent actions taken by the workers out of desperation as they were very angry with the non-responsive behaviour of the police. The workers said that despite being present in close vicinity, the police did not come when the guards were opening fire. After some time, a huge police force and PAC battalions reached the spot to “control the angry workers”, but in fact to protect the guards from the angered workers. The workers said that the police released the guards as some of them were seen roaming freely the next day morning. The workers’ colony was on the other hand was encircled by police from all sides. It is quite clear that the police machinery is hand in glove with the management of the construction company to hold the workers reponsible for this incident. Thus the real estate mafia’s reign of terror goes on under the protective cover of the police machinery and the workers continue to suffer.

SOURCE :  KAFILA

April 30, 2013

by Sunalini Kumar

The Scope of the Jurisdiction to Grant Relief against a Penalty Clause

In Andrews v Australia and New Zealand Banking Group, the High Court of Australia has considered an important question of contract law: is the jurisdiction to grant relief against a penalty clause confined to a sanction triggered by an event that can be characterised as a breach of contract, or does it extend to a sanction triggered by other events? The Supreme Court of India had occasion to consider exactly this question about two years in BSNL v Reliance, but unfortunately did not do so. We have commented on that decision here.

Simplifying the facts for the purposes of analysis, customers of the ANZ Banking Group [“ANZ”] challenged certain payments that they were required to make for banking services. This fell into, mainly, three classes: a late payment fee [“Late Payment Fee”], payable if a customer is late in making a scheduled payment; “honour” fees payable by a customer who overdraws his account and interest on these fees [“Honour Fee”]. At first instance, Gordon J. found that the Late Payment Fee was payable as a consequence of breach of contract by the customer (in not making the scheduled payment), but that the Honour Fee was not. The question was whether this meant that no relief could be granted against the payment of the Honour Fee. In English law, this was traditionally the position, established by the speeches delivered in the House of Lords in Export Credits Guarantee Department v Universal Oil Products [1983] 1 WLR 399. The result was that a sanction triggered by an event that was not a breach of contract did not attract the penalty rules.

The High Court of Australia rejected that analysis in an instructive judgment, of which the following is a brief summary. The word “condition”, like “rescission”, has a variety of meanings in contract law. One meaning, of course, is an important or fundamental term of a contract the breach of which entitles the other party to withhold further performance and terminate the contract. Used in this sense, condition is contrasted with warranties and innominate terms. But the word “condition” is not used in this sense in the cases in which the penalty rules were established.  In those cases, there was typically a bond, which would be forfeited on the happening or non-happening of a certain event. That event was called a “condition”. It could be a promise by the other party (in which event the bond would be forfeited on breach) but it could also be an event that was not a promise by the other party. In Campbell v French, Lord Kenyon gave this example: a bond to be forfeited if the “Pope of Rome visits London tomorrow” is perfectly good, since the event is, although unlikely, not impossible. The example demonstrates that “condition”, in this sense, did not mean “promise” and that relief granted against forfeiture, naturally, could not have been confined to a breach of promise. As the High Court points out, equity granted relief provided the non-performance of the condition secured by the bond could be compensated by an award of money. If the bond secured a money condition, the court of equity intervened by ordering the defendant to pay the principal amount, interest and costs; if it secured a non-money condition, the court of equity would direct an issue of quantum damnificatus to assess the loss. In neither case was there any basis for the suggestion that equity would intervene if the bond secured a promise but would not intervene if it secured something else. The High Court points out that the emergence of assumpsit did not introduce the breach limitation, because the relief granted by the common law courts in this actionmirrored the relief granted by the courts of equity but did not substitute it. In other words, the equitable relief retained its identity; the common law courts simply gave relief too.

One question that arises from the judgment of the High Court of Australia is this: if the penalty rules are not limited to a breach of contract, when do they not apply? The High Court gives a tentative answer to this, by pointing out that it would be necessary to examine whether the Honour Fee was payable as a security for the performance of an obligation or as the price of “further accommodation” by the ANZ Group. Professor Peel points out in a case note in the Law Quarterly Review ((2013) 129 LQR 152) that this distinction “seems simply to move some of the problems associated with the breach limitation to a different place”.

The Indian law on this point remains unresolved. In BSNL v Reliance, Mr Gopal Subramanium argued that clause 6.4.6 was a payment triggered by an event other than breach and that the penalty rules did not, therefore, apply. As we have discussed in our post, the Supreme Court did not decide this point. Section 74 opens with the words “when a contract is broken”, suggesting that it does not apply to an event other than breach. However, as the authors of the 2^nd edition ofPollock and Mulla point out at page 328, section 74 does not exhaust the equitable jurisdiction of the court to relieve against penalty clauses. That jurisdiction was exercised with respect to some stipulations before section 74 was amended in 1899, and nothing in the amendment suggests that it was taken away. The question, therefore, remains open and one hopes the Supreme Court will answer it when the opportunity next arises.

 SOURCE : http://indiacorplaw.blogspot.in/

Posted by V. Niranjan at 1:04 PM 

Labels: Contract Law

One Person Company – a still-born, half-baked concept?

The Companies Bill 2012 proposes a new concept of One-person Company (OPC). The obvious objective is to overcome the hurdle of needing a second person to form a company, despite the saying that “two’s company”. This brief post is to highlight its nature, some issues and also questioning the real benefit of an OPC.

OPC, as the term implies, is a company with one and only one shareholder. The need to have two directors also is avoided and only one director is needed. However, unlike a shareholder, the number of directors can be more than one. And the single shareholder need not be the director or any of the directors. A succeeding shareholder will have to be named in case of death of the initial shareholder.

Thus, it is expected to help an individual incorporate himself/herself. The need to find a second shareholder/director for a proprietary business in corporate form is avoided.

Succession/transfer of a business in corporate form is clearly easier than if it owned in a sole proprietary form. And one can delink different businesses in separate OPCs since there is no limit on how many OPCs one single individual can form.

The OPC will have to add the tag One-person Company under its name.

Some other procedural concessions in terms of meetings, etc. are given for obvious reason that there cannot be a “meeting” of a single shareholder/director.

However, beyond a few procedural concessions, and avoidance of the need of second shareholder/director, it is not clear what substantial benefits are available. The relatively long/complicated procedure for formation, maintenance and dissolution of a Company remain without any major relief. The requirement of finding a second shareholder/director is generally not found cumbersome in India where a friend, relative or staff member can easily act as such.

Further, except a few minor procedural concessions, the provisions of accounts, audit, etc. would also apply to an OPC.

Certain businesses like that of finance may face problems if sought to be carried in a Company form. Thus, an individual engaged in business of lending or investments may need prior registration from the Reserve Bank of India, minimum net owned funds of Rs. 2 crores, etc.

Conversion of existing proprietary businesses can create complexities of tax. There is an existing provision in the Income-tax Act, 1961 (section 47(xiv)) which should help in availing relief from capital gains, even if originally it was not framed with an OPC in mind. However, other tax issues may remain. The concern of deemed dividends under Section 2(22)(e), the question of allowability of remuneration to proprietor, etc. are some other challenges an OPC may face. The other challenge will be of stamp duty on transfer of the business to the OPC.

Strangely, it is not clear how an OPC may go to the next logical step of becoming a non-OPC when it wants to introduce more shareholders. Ideally, a simple amendment of its memorandum and articles should have sufficed. However, there are no specific provisions enabling this. The question therefore is whether an OPC is doomed to remain a one shareholder company during its existence?

Conversion from a non-OPC to an OPC has also not been provided for. Thus, an existing private limited company may not be able to convert itself into an OPC.

OPCs should have been useful particularly in case of wholly owned subsidiaries of companies where the parent company would be the sole shareholder. However, there is a requirement that makes one wonder whether a company can be the sole shareholder. The definition of OPC does talk of a “person” being a shareholder. However, it is required that a succeeding shareholder be named in case of death of the initial shareholder. The concept of death is generally understood in sense of natural persons and not companies. Thus, unless one takes a view that this requirement is not a mandatory one or stretch it to include dissolution of a company, the concept of OPC may not be available for forming a WOS.

All in all, it seems that despite the initial enthusiasm that this concept received, it seems that in practice, this by itself is not likely to encourage sole proprietors to convert into a company in large numbers. 

SOURCE : http://indiacorplaw.blogspot.in/

BY : CA Jayant Thakur 

DATE : 29/04/2013

Call of Paper for Indian Journal of Arbitration Law

The Indian Journal of Arbitration Law is pleased to announce its upcoming issue (Volume 2: Issue 2), which is to be published in September this year.

The Board of Editors cordially invites original, unpublished submissions for publication in the following categories:

- Articles

- Notes

- Comments

- Book Reviews

Manuscripts may be submitted via email to editor.cartal@gmail.com latest by 31^st July 2013.

Editorial policy and submission guidelines are available here.