Corporate Law : CONTRACT OF GUARANTEE - SCHEME OF CONTRACT ACT,1872 1(a) It is submitted that Sections 133, 134, 135, 139, 140,141 and 145 of the...
Corporate Law : 1. It is submitted that the recovery proceedings against the Guarantor before hon’ble Debts Recovery Tribunal (hereinafter ‘DR...
Corporate Law : The jurisdiction of the Civil Court to entertain, try and decide any suit or proceeding in respect of the property, which is the s...
Corporate Law : Section 34 of the RDB Act provides that the said Act would have overriding effect. We have referred to the aforesaid provisions to...
Corporate Law : The author has first hand knowledge and experience that a large majority of projects fail, firstly, due to inexcusable delay in sa...
Corporate Law : Recently, hon’ble Supreme Court in Gangadhara Palo Vs The Revenue Divisional Officer & Another {(2011) 4 SCC 602; Decided on 08....
Therefore, it is explicit that more than one Court may have jurisdiction in respect of the same subject matter as per the circumstances of the particular case. In such a situation, the parties may enter into an agreement and confer exclusive jurisdiction on one of the Courts, having jurisdiction as detailed above, and at the same time oust the jurisdiction of other Courts, which may also have jurisdiction on the subject matter as provided in the Code. With a view to draft such a jurisdiction ouster clause, some principles have been culled from the following judgments.
Hon’ble Supreme Court in Afcons Infrastructure Ltd. & Anr. Vs. Cherian Varkey Construction Co. (P) Ltd. & Ors. {(2010) 8 SCC 24; Decided on 26.07.2010} held as follows in para 13.5 and 16 respectively. A classic example of correcting an error committed by the draftsman in legislative drafting is the substitution of the words `defendant’s witnesses’ by this Court for the words `plaintiff’s witnesses’ occurring in Order VII Rule 14(4) of the Code, in Salem Bar-II {Salem Advocate Bar Assn. II Vs. UOI (2005 6 SCC 344)}.
Before declaring NPAs, Bankers have numerous duties to perform including rehabilitation not only once but multiple times – Important Information for Borrowers and their advocates. Our Associate and Banking Expert has drawn attention to the following important RBI Guidelines and circulars which will be highly useful to Borrowers and their Advocates. These need to be studied and important aspects included in the ‘Representation and Objections’ to notice u/s 13 of the Securitisation Act as well as in the application u/s 17 of the said Act:-
Why a Bank does not agree to any of the rights conferred on sureties by section 133, 134, 135, 139 and 141 of Contract Act, and any Rule of Law or Equity? A Case Study– Dena Bank (Letter of Guarantee):- Extracts of Paragraph nos. 4, 5, 6, 10 and 15 of Letter of Guarantee of Dena Bank are reproduced below–
HARSHENDRA KUMAR D. V. REBATILATA KOLEY ETC In our judgment, the above observations cannot be read to mean that in a criminal case where trial is yet to take place and the matter is at the stage of issuance of summons or taking cognizance, materials relied upon by the accused which are in the nature of public documents or the materials which are beyond suspicion or doubt, in no circumstance, can be looked into by the High Court in exercise of its jurisdiction under Section 482 or for that matter in exercise of revisional jurisdiction under Section 397 of the Code. It is fairly settled now that while exercising inherent jurisdiction under Section 482 or revisional jurisdiction under Section 397 of the Code in a case where complaint is sought to be quashed, it is not proper for the High Court to consider the defence of the accused or embark upon an enquiry in respect of merits of the accusations. However, in an appropriate case, IF ON THE FACE OF THE DOCUMENTS
High Court rightly dismissed the petition on the ground that an efficacious remedy was available to the appellants under Section 17 of the Act. It is well-settled that ORDINARILY RELIEF UNDER ARTICLES 226/227 OF THE CONSTITUTION OF INDIA IS NOT AVAILABLE IF AN EFFICACIOUS ALTERNATIVE REMEDY IS AVAILABLE TO ANY AGGRIEVED PERSON. (See: Sadhana Lodh Vs. National Insurance Co. Ltd. & Anr. (2003) 3 SCC 524; Surya Dev Rai Vs. Ram Chander Rai & Ors. (2003) 6 SCC 675; State Bank of India Vs. Allied Chemical Laboratories & Anr. (2006) 9 SCC 252).
Wrongful withholding of company property is an offence and the wrong doer can be proceeded against under section 630 of the Companies Act. Whether this section can be pressed into service even against the legal heirs of past employee is the crucial question examined in the light of recent judicial elucidations.
Hon’ble Supreme Court in U.P. Avas Evam Vikas Parishad & Anr. Vs. Friends Coop. Housing Society Ltd. & Anr. (AIR 1996 SC 114; Date of Judgment 24/04/1995) held that Right to shelter is a fundamental right, which springs from the right to residence assured in Article.19 (1) (e) and right to life under Article. 21 of the Constitution.
Since long the public sector banks and financial institutions (hereinafter collectively referred to as ‘the Bank’ or ‘the Banks’) have unilaterally and arbitrarily developed a practice to execute personal guarantee agreements with the guarantors to secure the debts of a company. This view is supported by the judgement of hon’ble Supreme Court in Karnataka State Financial Corporation vs N. Narasimahaiah & Ors. {2008 AIR 1797, 2008 (5) SCC 176, 2008 (4) JT 183; Date of Judgment: 13/03/2008}, wherein the court has observed as follows (in para 18)
Expenditure incurred by the company on account of stamp duty and registration fee for the issue of bonus shares is allowable expenditure. The Supreme Court has reiterated its view as already expressed in 1964 in CIT Vs. Dalmia Investment Co Ltd (1964) 52 ITR 567 (SC). However, the Gujrat High Court in Ahmedabad Mfg. & Calico Pvt Ltd Vs. CIT (1986) 162 ITR 800 (Guj) in 1986 and in other cases up to 1994 has taken a contrary view. Further, the Andhra Pradesh High Court in Vazir Sultan Tobacco Co. Ltd Vs. CIT (1988) 174 ITR 689 (AP) and (1990) 184 ITR 70 (AP) in 1988 and up to 1990 has also taken a contrary view. It is unfortunate that Hon’ble Gujrat High Court and Hon’ble Andhra Pradesh High Court have clearly violated the mandate of Article 141 of the Constitution; the concept is discussed in detail later on hereinafter.
