IBC: Commercial or business decision taken by the Liquidator for conducting the sale of the assets of the Corporate Debtor are not subject to judicial review

It is not for the court to question the judiciousness of the decision taken by the Liquidator with the idea of enhancing the value of the assets of the Corporate Debtor being put up for sale. The right to refuse the highest bid or completely abandon or cancel the bidding process was available to the Liquidator unless it is shown that process was a malafide exercise

Category: Insolvency and Bankruptcy Code 2016   Posted on: September 11, 2022

IBC prevails over the Customs Act. Custom Authorities have no power to sell goods during CIRP/Liquidation Process

The IBC prevails over The Customs Act, to the extent that once moratorium is imposed in terms of Sections 14 or 33(5) of the IBC as the case may be, the respondent authority only has a limited jurisdiction to assess/ determine the quantum of customs duty and other levies. The respondent authority does not have the power to initiate recovery of dues by means of sale/ confiscation, as provided under the Customs Act.

Category: Insolvency and Bankruptcy Code 2016   Posted on: September 11, 2022

SARFAESI Act: Can a Writ Petition under Article 226 be filed to stall recovery proceedings?

A writ petition against the private financial institution – ARC – under Article 226 of the Constitution of India against the proposed action/actions under Section 13(4) of the SARFAESI Act can be said to be not maintainable. In the present case, the ARC proposed to take action/actions under the SARFAESI Act to recover the borrowed amount as a secured creditor. The ARC as such cannot be said to be performing public functions which are normally expected to be performed by the State authorities. During the course of a commercial transaction and under the contract, the bank/ARC lent the money to the borrowers herein and therefore the said activity of the bank/ARC cannot be said to be as performing a public function which is normally expected to be performed by the State authorities. If proceedings are initiated under the SARFAESI Act and/or any proposed action is to be taken and the borrower is aggrieved by any of the actions of the private bank/bank/ARC, borrower has to avail the remedy under the SARFAESI Act and no writ petition would lie and/or is maintainable and/or entertainable

Category: Sarfaesi Act, Sarfaesi judgements   Posted on: September 10, 2022

The law relating to the Benami Transaction (Prohibition) Act, 1988

It is well established that burden of proving that a particular sale is benami lies on the person who alleges the transaction to be a benami. The essence of a benami transaction is the intention of the party or parties concerned and often, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him, nor justify the acceptance of mere conjectures or surmises, as a substitute for proof

Category: Benami Transactions Law   Posted on: September 9, 2022

Article 136: Supreme Court can interfere with concurrent findings of fact

The Supreme Court will not interfere in the exercise of its powers under Article 136 of the Constitution of India with the concurrent findings recorded by the courts below. But where material aspects have not been taken into consideration and where the findings of the Court are unsupportable from the evidence on record resulting in miscarriage of justice, the Court will certainly interfere

Category: Jurisprudence   Posted on: September 9, 2022

What is the law of defamation?

Defamation is defined as spoken or written words or visible representations, concerning any person intended to harm his/her reputation. Exceptions to this include an ‘imputation of truth’ required for a ‘public good’, or the conduct of any person touching any public question, or expressing opinions on a public performance

Category: Criminal Law   Posted on: September 7, 2022

Can a show-cause notice be challenged in a Writ Petition?

The practice of challenging SCNs by way of a Writ Petition has been deprecated time and again as clearly spelt out by the Supreme Court in the case of Kunisetty Satyanarayana, (2006) 12 SCC 28 : AIR 2007 SC 906. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established

Category: Jurisprudence   Posted on: September 7, 2022

Can an externment order under the Police Act be challenged in Court?

An order of externment must always be restricted to the area of illegal activities of the externee. The executive order must demonstrate due application of mind on the part of the statutory authority. When the validity of an order is questioned, what would be seen is the material on which the satisfaction of the authority is based. The satisfaction of the authority although primarily subjective, should be based on objectivity

Category: Criminal Law   Posted on: September 7, 2022

Scope of judicial review of administrative decisions

In essence, the test is to see whether there is any infirmity in the decision-making process and not in the decision itself. The court has to find out if the administrator has left out relevant factors or taken into account irrelevant factors. The decision of the administrator must have been within the four corners of the law, and not one which no sensible person could have reasonably arrived at, having regard to the above principles, and must have been a bona fide one. The decision could be one of many choices open to the authority but it was for that authority to decide upon the choice and not for the court to substitute its view

Category: Jurisprudence   Posted on: September 7, 2022