On 23rd March 2020, the Supreme Court had taken suo motu cognizance of the extraordinary circumstances prevailing on account of the Covid-19 pandemic and the resultant challenges before litigants in filing cases in courts and tribunals across the country. The Court ruled that the “period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings.” This Order (“Extension Order”) was passed by the ..read more

In Parts I and II, I had discussed the provisions of Section 14 of the Insolvency and Bankruptcy Code prior to the Insolvency and Bankruptcy Code (Ordinance), 2019, and the changes introduced to Section 14 by the Ordinance on the aspect of termination of contracts during the CIRP period. In this final Part, I look at the judgments on this issue. Rajendra K. Bhutta v. MHADA and Section 14(1)(d) While there is a wealth of jurisprudence on most vital issues concerning the insolvency resolution process of a corporate person, the consequence of a moratorium on the termination of contracts is an are ..read more

In Part I, I had discussed the regime under the unamended Section 14 governing the issue of termination of contracts. In this Part, I discuss the amendments to Section 14 introduced by the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2019 and retained by the Insolvency and Bankruptcy Code (Amendment) Act, 2020. The Ordinance inter alia inserted the following two provisions in Section 14. A) Explanation to Section 14(1): Explanation to Section 14(1) provides for instances where, broadly, a government or an authority established under law has granted a license, permit or a similar grant ..read more

The commencement of corporate insolvency resolution process under the Insolvency and Bankruptcy Code (“Code”) results in a moratorium, inter alia, on any coercive action against the assets of the corporate debtor. The moratorium is aimed at ensuring that the corporate debtor continues as a going concern, which in turn enhances the possibility of revival of the corporate debtor. The nature and extent of the moratorium is stipulated in Section 14 of the Code. An important issue that arises in this context is the effect of the moratorium on the corporate debtor’s contractual obligations, particul ..read more

A recent decision of the Supreme Court in Siri Chand v. Surinder Singh proposes an unusual (and, with respect, flawed) application of Section 106 of the Transfer of Property Act, 1882 (“Act”). Section 106 prescribes the duration of a lease where the lease deed is silent on it. If the lease is not for an agricultural or an industrial purpose, it is deemed to be from month to month and may be terminated by either party with 15 days’ notice. The limited purpose of Section 106 is to ascertain the duration and terminable nature of a lease. However, the Court in Siri Chand has expanded the deeming f ..read more

[This is a Guest Post by Mansi Sood, who is a Delhi-based lawyer.] In the past year, a series of judgments by the Delhi High Court have chalked out the contours of S.34(3) of the 1996 Act in the context of non-est filings. While their pro-arbitration stance is exemplary, their inconsistency and over-enthusiastic intervention undermine any positive takeaways. In this post, I highlight the impact of these decisions and argue that a more balanced and less intrusive approach is both possible and necessary. The interpretation of the term ‘non-est’ in an arbitration context is best outlined in ..read more

[This is a Guest Post by Kaustav Saha, who is a Delhi-based lawyer.] This post will examine the Supreme Court’s most recent interpretation of the public policy exception to enforcement of foreign awards in National Agricultural Cooperative Marketing Federation of India v. Alimenta S.A. (‘NAFED’).It is submitted that the court’s application of the public policy exception to refuse enforcement of the foreign award in question was flawed and shows that even today, notwithstanding the legislative attempt to clearly articulate the contours of the public policy exception by way of the 2015 amendment ..read more

A recognised exception to the doctrine of frustration under Section 56 of the Contract Act is self-induced frustration, i.e. the event which is alleged to have frustrated the contract must not arise from the acts of the promisor. To illustrate, A undertakes to manufacture and supply certain goods to B but fails to do so since A’s factory caught fire. If the fire was caused due to A’s own acts, A cannot contend that the contract is frustrated. An important issue which arises in relation to the exception of self-induced frustration (‘Exception’) is its applicability to cases of discharge under S ..read more

In the previous post, I had discussed the three systems of law that govern an international arbitration and the English Court of Appeal’s landmark decision in Enka v. Chubb, which held that there is a “strong presumption” that parties have impliedly chosen the curial law as the AA law. In this post, I examine the position under Indian law for determining the law governing the arbitration agreement where parties have chosen a proper law of the contract different from curial law. I argue that while earlier decisions accorded primacy to the proper law of contract, recent judgments have veered tow ..read more

There are three main systems of laws applicable to an international arbitration: (a) proper law of the contract, i.e. the law governing the substantive rights and obligations of parties under the main contract; (b) proper law of arbitration agreement, i.e. the law governing issues such as the validity, interpretation and existence of the arbitration agreement; and (c) curial law, i.e. the law governing the procedural aspects of arbitration. Curial law is the law of the seat of arbitration. Ordinarily, international contracts stipulate the proper law of the main contract and the seat of arbitra ..read more