Month: May 2020

The Insolvency and Bankruptcy Code, 2016 (‘IBC, 2016’) brought in a paradigm shift from the ‘debtor-in-possession’ regime to a ‘creditor-in-control’ regime. In order to accomplish this transformation and ensure the smooth functioning of the IBC, 2016, the legislature provided for a non-obstante clause under §238 of the IBC, 2016. The non-obstante clause has an overriding effect on any law for the time being in force which is inconsistent with the provisions of the IBC, 2016. However, this tool must be used cautiously and should be utilised only when the test of inconsistency, which has evolved through various case laws, gives positive results. This article discusses the scope and applicability of §238 of the IBC, 2016 and its effect on other statutes. It analyses the position of the IBC, 2016 vis-à-vis seven statutes including, the Maharashtra Relief Undertaking (Special Provisions) Act, 1958, Companies Act, 2013, Securities and Exchange Board of India Act, 1992, Advocates Act, 1961, Prevention of Money Laundering Act, 2002, Arbitration and Conciliation Act, 1996, Real Estate (Regulatory and Development) Act, 2016 and Electricity Act, 2003.

The Micro, Small and Medium Enterprises Development Act, 2006 (‘MSMED Act’) aims to protect and promote interests of micro, small and medium enterprises (‘MSMEs’) by shortening their working capital cycle. The MSMED Act, inter alia, seeks to incentivise timely payments to MSMEs by mandating a relatively high interest, at three times the bank rate notified by the Reserve Bank of India (‘RBI’), to be paid by a buyer for the period of delay, over the maximum prescribed time period for the payment. The interest mandated by the MSMED Act is compounded until the date of actual payment. The framework around this single provision of the MSMED Act creates a moral hazard of unduly delayed claims by the vendors, immense financial hardship for buyers due to mounting interest and an entirely unintended consequence of disincentivising buyers from dealing with MSMEs. In order to remedy this, the note examines whether, like all commercial claims, a claim under the MSMED Act must also, by passage of time, be barred by limitation.

The ongoing financial distress among some banks, Non-Banking Financial Companies (‘NBFCs’) and Housing Finance Companies (‘HFCs’) has once again drawn attention to the fragmented legal framework on resolution of Financial Service Providers (‘FSPs’) in India. The government was quick to extend the Insolvency and Bankruptcy Code, 2016 to the relatively bigger NBFCs and HFCs. This has renewed interest about the fate of the Financial Resolution and Deposit Insurance Bill, 2017 as well as the future of FSP resolution in India. Yet, barring a few media pieces, the broader Indian academic legal literature has hardly attempted to contextualise these major developments within a conceptual framework. This paper attempts to address this lacuna. It analyses the recent Indian legal developments around FSP resolution within a conceptual framework and highlights relevant issues that may have a bearing on the future of FSP resolution in India.

In Navtej Singh Johar v. Union of India the Court read down Section 377, which criminalises “carnal inter­course against the order of nature with any man, woman or animal”, or commonly, unnatural intercourse. It is perhaps one of the most socially and constitutionally historic verdicts of our times. However, while acknowledging the verdict’s significance, it is crucial to also acknowledge the several questions thrown up by commentators in the decision’s anticipation and the aftermath. As an attempt to answer some of these questions, supplement the growing body of literature on this matter and carry forward the legacy of previous editorial boards, we have put together the present Special Issue on the Navtej Singh Johar verdict. This consolidated Special Issue of the NUJS Law Review, is a humble addition to this growing body of literature, a celebration and criticism of the judgment through its various articles, and a tribute to those who have silently but arduously undertaken the grassroots movement which brought about the decision in Navtej. Through this Issue, the NUJS Law Review and the authors hope to respond to the Courts in a manner not possible within the Courtroom.