WHETHER ARBITRATION AWARD DIRECTING TRANSMISSION OF SHARES CAN BE ENFORCED THROUGH NCLT?

Cheran Properties Ltd. vs Kasturi and Sons Ltd. & Ors. 
Civil Appeal 10025/2017 decided on 24.04.2018 

The court held that since the award postulates a transmission of share to the Claimant, the directions contained in the award can be enforced only by moving the tribunal for rectification in the manner contemplated by law.

WHETHER FLAT BUYERS CAN INITIATE INSOLVENCY PROCEEDINGS AGAINST BUILDERS UNDER THE IBC?

Nikhi l Mehta & Sons (HUF) & Ors. v. M/s AMR Infrastructures Ltd. (NCLT Delhi), 
C.P NO. (ISB)-03(PB)/2017, decided on 23.01.2017

In this case the NCLAT has ruled that a purchaser of real estate, under an 'Assured-return' plan, would be considered as a 'Financial Creditor' for the purposes of IBC and is, therefore, entitled to initiate corporate insolvency process against the builder, in case of non-payment of such 'Assured/Committed return' and non-delivery of unit. NCLAT further went on to rule that the 'debt' in this case was disbursed against the consideration for the 'time value of money' which is the primary ingredient that is required to be satisfied in order for an arrangement to qualify as 'Financial Debt' and for the lender to qualify as a 'Financial Creditor', under the scheme of IBC.

WHETHER THE IBC CAN BE INVOKED IN RESPECT OF AN OPERATIONAL DEBT WHERE AN ARBITRAL AWARD HAS BEEN PASSED AGAINST THE OPERATIONAL DEBTOR, WHICH HAS NOT YET BEEN FINALLY ADJUDICATED UPON?

K. Kishan vs. M/s Vijay Nirman Company Pvt. Ltd, Civil Appeal No. 21824 of 2017 decided on 14.08.2018

The court held that the filing of a Section 34 petition against an Arbitral Award shows that a pre-existing dispute which culminates at the first stage of the proceedings in an Award, continues even after the Award, at least till the final adjudicatory process under Sections 34 & 37 has taken place. However, court clarified that there may be cases where a Section 34 petition challenging an Arbitral Award may clearly and unequivocally be barred by limitation, in that it can be demonstrated to the Court that the period of 90 days plus the discretionary period of 30 days has clearly expired, after which either no petition under Section 34 has been filed or a belated petition under Section 34 has been filed. It is only in such clear cases that the insolvency process may then be put into operation.

Supreme Court Dismisses Plea To Review Decision On Kohinoor Diamond

The Supreme Court has given the legal burial to a case which had sought judicial intervention to reclaim the 108-carat Kohinoor diamond from the United Kingdom.

A five-judge bench headed by Chief Justice Ranjan Gogoi dismissed a curative petition seeking to re-examine its 2017 verdict in which it had said that it cannot pass order for reclaiming Kohinoor diamond from the UK or to stop it from being auctioned.

Kohinoor, which means Mountain of Light, is a large, colourless diamond that was found in Southern India in early 14th century.

The 108-carat Kohinoor gem, which fell into British hands during the colonial era, is the subject of a historic ownership dispute and claimed by at least four countries including India.

"We have gone through the curative petition and the connected papers. In our opinion, no case is made out within the parameters indicated in the decision of this court in the case of Rupa Ashok Hurra vs. Ashok Hurra & another....Hence, the curative petition is dismissed," said the bench, also comprising Justices SA Bobde, NV Ramana, DY Chandrachud and SK Kaul, in its recent order.

Curative petition is heard in the chamber of judges in the absence of lawyers.

The top court had in April 2017 disposed of pleas filed by an NGO and others seeking directions to bring back the treasured diamond to India saying it cannot ask a foreign government not to auction a property.

The court had made it clear it could not pass an order with regard to a property which was in another country.

In its order, the court had referred to an affidavit filed by the Centre and said that "the Government of India continues to explore ways and means with the UK government on the issue".

The Centre had earlier told the apex court that Kohinoor was neither "forcibly taken", nor "stolen" by British rulers but given to the East India Company by the rulers of Punjab.

The pleas had sought directions to the Indian High Commissioner in the UK for the return of the diamond, besides several other treasures.

After the April 2017 order, a plea seeking review of the verdict was filed in the top court.

COMMENT

The review plea was dismissed by the court in November 2017.