Company Law

SEBI’s Announcement: Short- Selling A Double-Edged Sword?

[By Zoya Farah Hussain & Vasundhara Mukherjee] The authors are students of National Law University Odisha.   INTRODUCTION  The volatile nature of the Indian securities market has effected various changes in the regulations overseeing the sector but despite the existence of this structured mechanism, there are numerous trading methods undertaken by investors for profit maximisation. In light of the recent announcement by SEBI, we aim to analyse the phenomenon of one such method, called, short-selling.  In a scenario where an investor borrows shares from  someone else, sells them at the current market price, and then buys them back later at a lower price,  he can pocket the difference as profit. It’s like betting against a stock’s performance, and it can help bring balance to the market by reflecting both positive and negative sentiments. This is called short-selling. But  there is a riskier version called   naked short-selling whereinstead of borrowing shares, investors sell stocks they don’t even own. It’s like promising to deliver something you do not have — a practice that can introduce chaos and uncertainty into the market. This creates a potential for abuse and market manipulation, as it generates counterfeit shares that don’t exist.  Short-selling, when done responsibly, can improve market efficiency by reflecting true market sentiment. It adds liquidity and helps in price discovery, but when things get out of hand — especially with naked short-selling — it can wreak havoc. Excessive short-selling can lead to wild swings in stock prices, erode investor confidence, and even destabilize the entire financial system. Here, we understand the possible implications of the recent announcement by SEBI regarding short-selling.  UNDERSTANDING SEBI’s GUIDELINES  SEBI initiated discussions on short-selling in 1996 through a committee chaired by Shri B.D. Shah who defined short-sale as the sale of shares without physical control until settling prior purchases or countering ongoing deliveries. The ban on short-selling was short-lived, as SEBI introduced a Securities Lending and Borrowing (SLB) framework later in December 2007, following recommendations from the Secondary Market Advisory Committee, permitting both retail and institutional investors to engage in short-selling again, with certain conditions.  The Adani-Hindenburg saga unfolded against the backdrop of, Hindenburg, a US-based financial research agency, who short-sold some shares of Adani Group accusing them of engaging in deceptive practices and inflating the value of its companies. Consequently, the ED carried out an investigation directed by the apex court of India which observed that no substantive losses were faced by the investors, implying that SEBI regulations were well in place, but keeping in view the current rise in the stock market trend of price manipulation, SEBI being an independent regulatory authority was directed to formulate further guidelines to ensure a proper framework for short-selling activities so that no investor is at a risk of being victim to violation of market practices.  Making Room for Everyone  This new framework opens the door for a wide spectrum of investors.  but with the doors wide open, we also need to be more careful. Novice retail traders entering this complex arena face the risk of exacerbating market volatility and becoming susceptible to manipulative tactics. To ensure a fair playing field for all, SEBI must prioritize comprehensive investor education and diligent monitoring.  This step could include understanding the investing capacity and the trading intention of new investors and equipping them with the requisite knowledge of the operations of the market and official financial information of the listed companies, by registered securities educators or mentors, enabling them to make an informed decision.  Cracking Down on Risky Business  SEBI has put in place an important rule: if you’re selling shares you borrowed, you’ve got to deliver those shares. This is meant to stop naked short-selling  which is a risky move that can mess with stock prices, just like when Porsche tried to short-sell Volkswagen in 2008. When Volkswagen’s price shot up, Porsche could not deliver the shares it owed, causing a lot of problems for hedge funds and making the market go crazy. SEBI’s mandatory delivery requirement aims to prevent similar scenarios by promoting responsible short-selling and curbing predatory behaviours.  Being Transparent About Trades  SEBI has also mandated transparency through disclosure requirements. Institutional investors have to disclose upfront if they’re making a short sale, while regular retail investors like us have to make a similar disclosure by the end of the trading day. Additionally, brokers have to keep track of all the short-selling positions for each stock and upload this data to the stock exchanges before the next trading day commences.  IMPACT OF THE ANNOUNCEMENT  It’s undeniable that the most recent SEBI short-selling rules have two sides. One may argue that naked short-selling is a good thing for the financial markets. Additionally, they opine that it may enhance the way the securities markets for borrowing and lending operate. The primary contention is that the issue of who serves as the lender is the sole distinction between covered and naked short sales. In contrast to naked shorting, when the lender is the new buyer, covered shorting involves the lender as the present owner of the stocks. It’s possible that this will not have a big impact on determining the fair price, but they also present the counter-argument that the new buyer might not be aware of it and will not voluntarily enter into the lending relationship he/she will not even get paid for it. Nonetheless, the new buyer is in a secure position and may even profit from the interest on the money that is held until the assets are delivered, thanks to the clearing houses’ centre-counterparty arrangement and the option to start the buy-in process.  The suddenness of the share price drop invites investors involved in naked short selling to sell even the unborrowed shares to benefit from it at least in the short-run. This creates competition in the market for security lending by allowing a new buyer to provide the service of being owed the share rather than allowing only the current owner to do so.  Naked short-selling may be good for the financial markets

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Navigating Jurisdictional Boundaries: A Legal Analysis of NCLT’s Authority and Civil Court’s Restrictions.

[By Pulkit Rajmohan Agarwal & Anaya Nandish Shah] The authors are students of Gujarat National Law University, Gandhinagar.   Introduction  Recently, in the case of Eastern India Motion Pictures Association & Ors. v. Milan Bhowmik & Anr., the division bench of the Calcutta High Court affirmed a peculiar ruling by the single judge bench, favouring two minority members of a company. The members approached the court challenging the election of the executive committee, which was allegedly conducted in violation of the articles of association and the election rules of the company. The said circumstance falls well within the realm of remedies stipulated under the Companies Act 2013 (the Act), one of them being oppression and mismanagement under Section 241 of the Act. However, the members opted for a recourse through the civil court, a forum that is expressly prohibited under Section 430 of the Act, thereby circumventing the jurisdiction of the National Company Law Tribunal (NCLT).  This blog analyses the question of whether statutory provisions prescribing and prohibiting rules can be bypassed, and whether courts are free to adopt alternative approaches. In the light of Sections 241, 244, and 430 of the Act, it scrutinizes whether the bench appropriately affirmed the ruling of a single judge bench, and explores the scope for interpretation regarding the object, powers, and discretion of the NCLT.  Legal Framework For Oppression And Mismanagement Cases  Eligibility for O&M under the Companies Act.  Section 241 of the Act pertains to applications alleging oppression and mismanagement. If minority shareholders can demonstrate to the tribunal either that: a) the company’s activities are being carried out in a manner prejudicial to its interests or those of its members, or contrary to the public interest; or b) there has been a material change and the company’s operations are being conducted in a manner detrimental to its interests. In furtherance, Section 244 of the Act talks about members who have a right to file a petition for oppression and mismanagement. According to the Section, in companies with share capital, a minimum of one hundred members or one-tenth of the total members, whichever is less, are eligible to submit an application. Conversely, for companies without share capital, as is the case herein, a minimum of one-fifth of the members is mandated. The object behind this restriction is to safeguard the company from frivolous petitions and ensures that only people holding requisite interest in the company can file petition. However, it is pertinent to note that the proviso to Section 244 explicitly mentions that these aforementioned conditions can be waived off upon an application to the NCLT. The underlying rationale is to protect the minority shareholders from dismissal of serious allegations of oppression and mismanagement solely on the grounds of insufficient shareholding.   There have been a plethora of cases illustrating several grounds upon which NCLT has waived off the criterias mentioned under Section 244 of the Act. Some of them include principles of natural justice, when it is in the substantial interest of the company, or when there is a dilution in shareholding because of oppression, etc. Further, NCLAT in Cyrus Investments Pvt. Ltd. v. Tata Sons Ltd., laid down certain principles regarding grant of waiver, along with inclusion of exception circumstances as one of the grounds. On the lines of these principles, NCLAT in one of its orders pertaining to an application under Section 241 of the Act, granted such a waiver to two minority shareholders.  Opting For Civil Remedy Over NCLT’s Jurisdiction   In the present case, an application to declare the election of the committee and the subsequent meetings null and void fall within the purview of oppression and mismanagement, as enumerated under Section 241 of the Act.   As per the mandate of the law, they failed to meet the eligibility requirement of at least 1/5th members. Hence, they should have approached NCLT with a waiver application under Section 244. Contrastingly, they resorted to civil court without initially exhausting the remedies mandated by the Act. The single judge of the High Court remarked “The argument made by the applicants relying on the proviso to Section 241(1)(b) that the plaintiffs are required to exhaust the remedies before NCLT before approaching this Court is not tenable.”, further in the context of waiver application the court opined “That apart and in any event a considerable period will elapse for NCLT to first decide whether to allow an applicant to maintain an application without requisite membership qualification.” Reaffirming the same, the division bench reiterated, “I would like to add that if the plaintiffs approached the tribunal for dispensing with the eligibility criteria, there was no guarantee that the tribunal would allow the application. In the event the tribunal rejected the application the plaintiffs would have to approach the civil court.” The Hon’ble High Court anticipated a probable denial by the NCLT for the waiver petition, along with the prospect of delay, and thus approved bypassing NCLT’s jurisdiction, thus deviating from the established framework.  Evaluating the jurisdictions  Section 430 of the Act restricts the jurisdiction of civil courts for matters designated to be adjudicated by the tribunals established under the Act. The Supreme Court, in context of Section 430 stated that jurisdiction of civil court is completely barred when powers have been explicitly conferred upon NCLT by a statute. Delhi High Court in the case of SAS Hospitality Ltd v. Surya Constructions Ltd. stated that the NCLT has sole jurisdiction over matters falling within the domain of Section 242 of the Act, which provides for the powers of tribunals in case of oppression & mismanagement.   The present case pertains to the operation & mismanagement which is exclusively under NCLT’s jurisdiction. While acknowledging the NCLT as the appropriate forum for adjudication, the division bench noted the contingency in NCLT accepting application, with the possibility of rejection leading to significant time wastage. In light of this, it becomes pertinent to refer to a recent order passed by NCLT Kolkata bench, wherein in similar circumstances where a few members (4 out

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Electoral Bonds Judgment: Implications for Corporate Financing & Information Disclosure

[By Vaibhav Mishra] The author is a student of Hidayatullah National Law University.   INTRODUCTION In the Union Budget session of 2017-18, Parliament passed the Finance Act 2017 [Act] to lay down the legal framework for the ‘Electoral Bonds Scheme (EBS)’. The scheme sought to create a new model of electoral financing in the country.  The Act carried out inter-related amendments to company law, income-tax law, and electoral laws to legally operationalize this scheme. The most crucial characteristics of the scheme were brought through amendments in Section 182 of the Company Act 2013 (Section 182). The implications of the amendment were two-fold, viz, first, removal of the upper-cap limit on the corporate funding, second, information disclosure requirement. The scheme raised various concerns like voters’ right to information, transparency, corporate influence on elections, etc. Therefore, amidst such concerns, the scheme was challenged in the Supreme Court as being violative of the Constitution.   Recently, the Supreme Court in its judgment has declared the EBS scheme as violative of the constitution. The Supreme Court invoked two principles – the principle of manifest arbitrariness to test the vires of unlimited corporate funding and the principle of double proportionality for the removal of information disclosure requirements in the context of voter’s right to information.  In light of the above, the article analyses the judgment with a focus on the two most crucial aspects of this financing model viz, unlimited corporate funding and removal of disclosure requirements along with their implications. It also highlights the importance of addressing both issues for creating any viable electoral financing model in the future. Furthermore, it also delves into the UK’s model to suggest possible changes in the Indian model of electoral financing.   ANALYSING SECTION 182: EXAMINING EFFECTS POST-2017 AMENDMENT Section 154 of the Act amended Section 182 which regulated corporate funding to political parties. In the pre-amendment position, Section 182 gave a three-fold requirement to regulate corporate funding – 1) upper-cap of 7.5% of the average net profit of three preceding financial years; 2) authorization of the board of directors; and 3) information disclosure requirements. In this framework, the upper limit on corporate donations was supposed to keep a check on any undue influence of big corporations on elections. Furthermore, transparency and accountability were promoted through obligations of information disclosure and consent of the board of directors.    However, the 2017 amendment to Section 182 for laying the legal framework of EBS, removed the upper limit on corporate funding and disclosure mandates. Therefore, as a result of amendment, EBS  was characterized by two key elements viz, 1) anonymity of the donor company & recipient 2) unlimited corporate funding.   Therefore, the new electoral financing model created by EBS as noted above, was now plagued with a lack of transparency & accountability having several implications, as discussed below.   VIRES OF UNLIMITED CORPORATE FUNDING & POTENTIAL IMPLICATIONS   In this case, Section 154 of the Act which amended Section 182, was challenged as violative of Article 14. There was uncertainty concerning the applicability of the principle of manifest arbitrariness under Article 14 in deciding the constitutionality of unlimited corporate funding. The court analysed the complex jurisprudence that evolved over this principle to decide its applicability in the present context. The majority opinion of Justice Faiz Nariman in Shayara Bano v Union of India proved to be a deciding factor [Para 187]. He had opined that vires of legislation could be challenged solely on the grounds of the principle of manifest arbitrariness as it is a constitutional infirmity in itself. Therefore, the court invoking this principle, held the scheme as violative of Article 14.    The unlimited corporate funding in elections strikes at the heart of the democratic process by violating the principle of free & fair elections. Therefore, its presence in the electoral financing model could have several implications. The wording of the provision in clause (1) of Section 182 after the 2017 amendment, i.e., the deletion of the proviso stipulating donation limits based on net profits, suggests that the provision fails to create a distinction between profit and loss-making companies. If we consider the possibility of a loss-making company giving donations, the purpose could not be other than having quid-pro-quo arrangements with the government which could unduly influence the electoral process. Furthermore, this structure creates the possibility of the creation of a shell company solely to make donations.   Therefore, the potential consequences of omitting an upper cap for corporate donations in any future model can’t be ignored. An analysis of recent data released by ADR, an electoral watchdog in India, suggests that corporate donations in India have increased by 974% between FY 2012-13 and FY 2018-19. A similar trend had been observed in the US after the Supreme Court’s decision in Citizens United v FEC in 2010. The judgment held the upper cap limit on independent corporate expenditure as violative of the First Amendment – which protects free speech. However, the judgment failed to anticipate the potential influence of big corporations in elections as a consequence. The data suggests a 900 % increase in corporate donations in American elections between 2008-2016. Therefore, any future financing model in the Indian scenario should address the issue of unlimited corporate funding.   IMPLICATIONS OF SECTION 182(3): REMOVAL OF INFORMATION DISCLOSURE REQUIREMENT  The presence of information disclosure mandates from donors is crucial in a democratic electoral financing model. However, EBS eliminated such disclosure mandates for companies and political parties. Therefore, EBS was challenged as being violative of Article 19(1) (a) of the Indian Constitution, i.e., voter’s right to information. In this context, Section 182(3) of the Company Act, 2013 was also challenged as it changed the pre-amendment position that mandated a donor company to reveal particulars of its donation in a P&L account. The information disclosure was instrumental in identifying any potential quid pro quo arrangements or corruption in the transactions [Para 172]. The removal of such a mandate impeded a citizen’s right to exercise an informed vote. Furthermore, the amendment also altered the original purpose of the

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From Paper To Pixels: Revolutionizing Private Company Ownership

[By Anubhav Patidar & Sarthika Singhal] The authors are students of Narsee Monjee Insititute of Management Studies.   INTRODUCTION  The Indian financial market has witnessed tremendous growth anchored on the principles of transparency and ease of doing business promoted by the Government of India. Historical inefficiencies in the physical aspect of the trading system of the securities market have come to light. Securities and Exchange Board of India (“SEBI”) in its 2004 report titled ‘Report of the Group on Reduction of Demat Charges’1 highlighted the risks associated in dealing with physical shares, i.e., theft, forgery, loss and damage.   Pursuant to the threats posed by physical certificate trading in private, regulators mandated compulsory dematerialization for private companies. In accordance with the powers granted by Section 292 read with Section 469 of the Companies Act, 20133 (“Act”), the Ministry of Corporate Affairs (“MCA”) introduced this amendment to the to the Companies [Prospectus and Allotment of Securities (“PAS Amendment”)] Rules, 2014 on October 27, 2023.   Dematerialization refers to the process through which tangible share certificates of an investor are converted into an equivalent number of securities in electronic format.   This article deals with the intricacies of the PAS Amendment Rules 2023, analyze the background and the rationale behind the amendment, understand its impact on market players and then highlighting certain concerns associated with it.  MCA Notification  Under the amended rules, every private company must compulsorily dematerialize all its securities with immediate effect. The companies are granted an 18 month-timeline from the closure of the financial year in which they cease to be a non-small private company to adhere to this amendment.4 For instance, if a company seizes to be a small company at any time during the financial year 23–24, 18 month-timeline triggers from 31 March 2024, and be complied is required by 30 September 2025.  Two specific categories are exempted from this mandate. First, the amendment does not apply to small companies5, defined as private companies with a paid-up share capital of INR 4 crores or below and a turnover of INR 40 crores or below. Additionally, government companies are excluded6, acknowledging the distinct regulatory framework applicable to these entities.  RATIONALE BEHIND MANDATORY DEMATERIALIZATION  The rationale to implement dematerialization for private companies is to unveil the opaque realms of asset ownership in the private sector. This initiative aims to enhance efficiency, transparency, and security within the private sector, ultimately benefiting both companies and investors.  Private companies, characterized by a restricted shareholder base and minimal regulatory scrutiny owing to their absence from public markets, have long operated under a shroud of secrecy. This opacity has provided fertile grounds for various illicit practices, spanning from tax evasions to financial deceit, often facilitated by the presence of shell companies – with no significant assets or operations.   Transitioning to dematerialization requires a private company to register with one of India’s two depositories and be allocated a securities identification number (“ISIN”) that will be used to track shares and other securities issued by the company. Shareholders will need to open a ‘demat account’ showing identification proof. Demat accounts would have to be compulsorily linked to permanent account numbers (“PAN”), and bank account.7 Any sale or purchase of shares of a private company will reflect in the demat account records. With shares held and exchanged through depository accounts, ownership rights become unequivocally clear, rendering it significantly challenging to engage in fraudulent activities such as clandestine ownership or fabricated transfers.  Further, private company ownership information will come handy to market regulators like SEBI. Regulators can effectively track and scrutinize transactions, facilitating prompt detection and prevention of non-compliance. This heightened level of regulatory scrutiny will act as a deterrent to illicit activities, fostering a more compliant and transparent securities market environment.  Impact on Companies  The financial burdens on the private companies are expected to get fortified since there is a fee component associated with demat accounts. Moreover, Private companies have to hire additional people to look after the compliance of dematerlialization process. Opening these accounts is merely the tip of the iceberg; ongoing expenses like annual maintenance fees add to the burden. Additionally, complying with regulatory requirements, such as upgrading technology and infrastructure, for dematerialization entails additional costs. This requires companies to allocate significant resources to ensure seamless compliance and effectively manage the financial implications of dematerialization.  While the wholly-owned subsidiaries (WoS) of unlisted public companies received exemptions from dematerialization requirements in the 2018 Amendment Rules exempted, the same leniency doesn’t extend to WoS of private companies under the Amended PAS Rules. If a private company subsidiary falls under the umbrella of another private entity, it must adhere to dematerialization regulations. However, if the subsidiary operates under a public company, thereby retaining its status as a deemed public company, it remains exempt from the 2018 amendment to the Rules.  Impact on Foreign Investors  The impact of dematerialization on foreign investors in Indian private companies presents both short-term challenges and long-term benefits. This documentation and procedural requirements may lengthen investment timelines and incur additional costs, posing a potential deterrent to foreign investment. Moreover, shareholders must furnish extensive details regarding their constitution, ownership, and stakeholder agreements, which could raise concerns for foreign funds. Once the demat account is established, the administrative burdens associated with traditional paper-based transactions are eliminated. Dematerialization ensures smoother, safer, and faster transactions for foreign investors, enhancing the efficiency and attractiveness of investing in Indian private companies. Therefore, while the initial setup may pose challenges, the transition to dematerialization ultimately enhances the investment landscape for foreign investors in the Indian market.  AFTERMATH OF AMENDEMENT: CHALLENGES AND WAY FORWARD  Navigating the transition towards mandatory dematerialization in private limited companies presents considerable hurdles, requiring strategic solutions for effective implementation.  Firstly, the technical complexities encountered by shareholders, often acts as a deterrent to the adoption of dematerialization. However, by providing intuitive interfaces and dedicated technical assistance, companies can empower shareholders to navigate the process with enhanced ease and assurance, thereby facilitating a smoother transition.  Moreover, the cybersecurity concerns presents yet another

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New Game; New Rules- Navigating the Direct Listing Scheme

[By RS Sanjanaa & Sahil Agarwal] The authors are students of Symbiosis Law School, Pune and Government Law College, Mumbai respectively.   [I.] Introduction  The Indian Government has allowed public companies to directly list and issue their equity shares on international exchanges. This move is aimed at bolstering the Indian economy by allowing companies (especially start-ups and technology companies) to access global markets for the purpose of raising foreign capital at favorable valuations.   For the purpose of allowing direct listing of equity shares at international exchanges, the Government has notified the amendment to Foreign Exchange Management (Non-Debt Instruments) Rules, 2019 (‘NDI Rules’) and the Companies (Listing of equity shares in permissible jurisdictions) Rules, 2024 (‘LEAP Rules’). In addition to this, Frequently Asked Questions have also been released pertaining to the Direct Listing Scheme.   In this post, the authors aim to explore the intricacies of the new framework, its development, implications on Indian companies, key challenges with the new framework, and recommendations.   [II.] Overview  [II.A.] Background  Direct listing is essentially one of the two ways in which a company can raise capital by listing its shares on an exchange. The other being an Initial Public Offer (‘IPO’). In a direct listing, the company does not issue any new shares and lists the already existing shares allowing the existing shareholders to trade them via an exchange.   Earlier, Indian companies were allowed to raise foreign capital for their shares only via the route of depository receipts (‘DR’). In order to ease the process of raising foreign funds and to allow direct listing, the Government vide Companies (Amendment) Act, 2020 amended Section 23 of the Companies Act, 2013  and allowed public companies to issue securities for the purposes of listing on permitted stock exchanges in permissible foreign jurisdictions. This change was brought into effect on October 30, 2023. In furtherance to the above, the LEAP Rules were introduced and the NDI Rules were amended. In the meanwhile, the Securities and Exchange Board of India (‘SEBI’) is expected to release its operational guidelines pertaining to direct listing of companies already listed in India.  [II.B.] Key Features  [II.B.1.] LEAP Rules   As per the First Schedule of LEAP Rules, GIFT International Financial Services Centre (‘GIFT IFSC’) has been prescribed as the permissible jurisdiction; and India International Exchange NSE and India International Exchange as the two permissible exchanges. The provisions of the LEAP Rules shall apply to both unlisted and listed Indian public companies which shall be permitted to list on the permissible jurisdiction. Further, as per Rule 4(5) of the LEAP Rules, companies are mandated to stay in compliance with  Indian Accounting Standards (in addition to any other accounting standards as may be prescribed by the foreign regulator) even after the shares are listed in  permissible jurisdictions.  Rule 5 of the LEAP Rules prescribes for certain kinds of companies which shall be deemed to be ineligible for the purposes of direct listing such as a Section 8 company, a company limited by guarantee and also having share capital, one having a negative net worth, among others.  [II.B.2.] NDI Rules  As per Schedule XI of the NDI Rules, the investment in Indian companies vide such direct listings shall be considered foreign investment for the purposes of foreign exchange laws and shall be subject to the sectoral caps for foreign investment as provided under Schedule I of the NDI Rules. Furthermore, any person resident outside India shall be a permissible holder of such equity shares. In essence, Indian residents are debarred from trading/investing in shares listed in permissible jurisdictions. These permissible holders shall be permitted to invest up to the limit prescribed for the foreign portfolio investors under the NDI Rules (i.e., 10%).  [III.] Critical Analysis  [III.A.] Assessing the Merits  Prior to this amendment, companies were only allowed to raise foreign currency capital primarily through issuing DR. Now with the government expressing its intent to permit the direct listing of Indian companies on international exchanges, this present move is a welcome change towards achieving that.   This would enhance the valuation of companies that are listed  on the international exchanges. It raises global investor confidence by signaling ambitions of tapping into a new pool of capital and subjecting them to more transparency obligations. For instance, until 2007 Alibaba was only listed on the Hong Kong Stock Exchange. When it decided to list on the New York Stock Exchange (‘NYSE’), the IPO raised $21.8 billion leading to enhanced valuation of $231 billion. This further diversifies the investor base with a broader range of risk appetites and reduced dependence on domestic markets.   The range of motion also increases when it comes to deals such as mergers and acquisitions of foreign companies. For instance, having U.S. dollar denominated shares simplifies any deal with a U.S. business. Additionally, listing on an international exchange also promotes strategic deals or partnerships with foreign firms through greater market recognition.   Sectors such as technology and start-ups will significantly benefit from this especially since FDI in the technology sector witnessed a 336% rise in April-September 2020. When Spotify (a Swedish company) went public on the NYSE, it closed at $26.5 billion on its first day of direct listing at the NYSE and has since grown over $7 billion with several of its majority investors coming from the U.S. such as Morgan Stanley and Universal Music Group. Additionally, it gave the most detailed disclosure a company has ever given about its business owing to higher transparency obligations. Even established companies operating in other sectors will benefit from this existing demand pool of foreign investors.   From the perspective of investors, investing in Indian companies in GIFT IFSC provides immense tax benefits than a DR route including exemptions on capital gains from the transfer of equity shares in GIFT IFSC. Moreover, it eliminates currency risk for the investors as the stocks are traded on foreign currency. This also facilitates easier cross-border investment allowing even non-resident Indians and entities from land bordering countries to invest pursuant to government approval.  Additionally, as stated

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Supplier Secrecy, Buyer Company’s Woes: The Chronicles of Delayed Payments under the MSMED Act

[By Rajan Thakkar & Manasvi Verma] The authors are students of Gujarat National Law University, Gandhinagar.   Introduction Micro, Small, and Medium Enterprises Development (MSMED) Act, 2006 imposes a liability on the buyer companies to make the payment to their suppliers within the period mentioned under Section 15[i] of the Act and upon failure of the same, according to Section 16[ii] of the Act, the buyer company is required to pay compound interest with monthly rests on the due amount at three times the bank rate notified by the Reserve Bank of India. However, certain obscurities have surfaced in cases when the buyer company is unaware of the MSME status of the seller and when the supplier fails to raise any claims for the outstanding amount leaving the buyer unaware of the outstanding dues. These ambiguities can leave companies financially drained as a result of supplier oversight. This article analyses the shortcomings of the current regime for delayed payments and presents somewhat of a rough pathway for the companies to safeguard themselves from unforeseen consequences of such situations. Legislative Intent: Ensuring timely Payment to Suppliers To understand the implications of these provisions in such situations, it is important to first examine the intent behind the concerned provisions. The legislative intent at the time of the passing of the act was to make improvements in the Interest Act 1993[iii] and to incorporate its provision in MSMED Act 2006; replacing and improving the then existing 1993 Act. One of the changes that was made was that the maximum period for payment by agreement was reduced (from 120 days to 45 days) in comparison to the Interest Act. It was evident that the legislature wanted to make moves to mandate the buyer companies to make timely payments for goods and services provided by micro and small enterprise suppliers. Such additions were made in Section 15 and the penalty for the default was provided under Section 16. Section 15 mandates that in no case, the agreement for the period of payment can exceed the statutory period. It reads,“…..the buyer shall make payment therefor on or before the date agreed upon between him and the supplier in writing… no case the period agreed upon between the supplier and the buyer in writing shall exceed forty-five days….”. . According to Section 16, the buyer will be liable to pay the compound interest notwithstanding any agreement or any law in force upon a failure to make the payment as mandated under Section 15 of the Act. To simplify this, both the sections are standing glued to each other, and if section 15 falls, so will section 16, and the Hon’ble Supreme Court has also observed in the case of Silpi Industries v. Kerala SRTC[iv] that the MSMED Act is a special legislation and would have an overriding effect over any other statute in force at the time. Therefore, no forces of other statutes or any agreements between the buyer company and the supplier can save the buyer company from this strict liability. This liability often comes as a surprise to the buyer companies due to some lacunas that are left out. No duty of the seller to raise a claim for outstanding dues. There is no default duty of the supplier to raise any claims or send any notices before the right u/s 16 of the actuates. Against this backdrop, the buyers might want to explore avenues to restrict their liability u/s 16 by agreements by requiring the suppliers to raise claims regarding outstanding amounts. However, no such option is left open to the buyer companies under the act since the statutory mandate is to make the payment in the period mentioned under section 15 and upon failure, “notwithstanding any agreement or any other law” in the time being, the interest under section 16 will kick in. No Duty of the seller to Notify the buyer company about the Supplier status. The act doesn’t mandate that the seller is required to notify the buyer companies about their supplier status. Liability can be imposed u/s 15 and 16 merely if the seller company is a supplier under the definition of Section 2(n) of the MSMED Act[v]and therefore, irrespective of the disclosure made by the supplier regarding its status, the liability of the buyer company may arise. To give a practical example of how this problem can materialize, let’s say a buyer company agrees with a vendor at a time when the vendor doesn’t have a supplier status under the MSMED Act and the period for payment for the goods/services exceeds the period described under the section 15. On a later date, the vendor acquires a supplier status under the act and keeps supplying the goods/services to the buyer company under the pre-existing contract without notifying the buyer company about the change in status. Upon default or after the lapse of the statutory period u/s 15, the buyer company might be caught with surprise for having to pay exorbitant statutory dues and finding that the existing contract has been rendered infructuous. Accompanying Liabilities of the Buyer Company upon Non Compliance with the Disclosure Requirements Thus far, we have explored how unforeseen financial burden can be placed on the buyer company in the form of interest rate in cases wherein the buyer company is either aloof of any outstanding dues or the supplier status of the seller. However, the repercussions of this aloofness are far reaching and not confined to the compound interest u/s 16 of the MSMED Act. The buyer company and its executives can have to bear additional penalties upon non disclosure of such unknown/undemanded outstanding payments. The repercussions of such a strict disclosure requirement can be understood by referring to the relevant provisions of the MSMED Act r/w the penalising provision of the Companies Act 2013. Under Section 22 of the MSMED Act[vi], it is mandatory for a buyer company, who engages in the acquisition of goods or procurement of services from a supplier to undergo an

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The Conundrum of the Legal Standing of Nominees of Deceased Shareholders in the Context of Succession: Shakti Yezdani v. Jayanand Jayant Salgaonkar

[By Devanshi Shukla] The author is a student of MNLU Aurangabad.   Introduction  Nomination as a process involves selecting another person as a legal nominee or representative by a person during his lifetime in respect of specific assets or properties. In the recent case of Shakti Yezdani & Anr. v. Jayanand Jayant Salgaonkar & Ors, the Supreme Court offered clarification on the status of nominees as nominated under Section 109A of the erstwhile Companies Act, 1956 (‘Act’) in the context of succession laws. The Court emphasized that nomination under the Act should not be viewed as an alternative method of succession. This blog seeks to delve into a comprehensive analysis of the judgment and explore its current implications.  Facts  Jayant Shivram Salgaonkar (‘testator’) had executed a will for the devolution of his properties upon his legal heirs. In addition to the properties mentioned in the will, he had fixed deposits (‘FDs’) and mutual funds (‘MFs’) for which he had made nominations. Following his demise, the legal heirs filed a suit for the administration of his properties. The nominees contested this arguing that the FDs and MFs absolutely vested in them, citing their nomination under the Act. A single judge of the Bombay High Court rejected the contentions put forth by the nominees stating that the appointed nominee retains ownership of the shares/securities in a fiduciary role and is responsible for addressing any claims within the framework of succession law. On appeal, the Division Bench held that the view taken in Harsha Nitin Kokate v. The Saraswat Co-operative Bank Limited and Others was per incuriam and made it clear that nominees were not entitled to the absolute ownership of the properties. Subsequently, the appellants filed an appeal in the Supreme Court.   Issues at hand  The Supreme Court deliberated on the following issues:  What is the aim behind the introduction of provisions concerning ‘nomination’ into the Act?  What is the understanding of the concept of ‘nomination’ under the Act and in relation to the law of succession?  What are the consequences of the term ‘vest’ and the non-obstante clause as employed in Section 109A of the Act and under Bye-Law 9.11.1 of The Depositories Act, 1996?  Observations made by the Court  Object behind the introduction of Section 109A under the Act  The Court observed that the Companies Act, 1956 was introduced to deal with the “incorporation, regulation and winding up of corporations”. Additionally, the primary intent behind introducing Section 109A and 109B by the Amendment of 1999 was to provide momentum to investment in the corporate sector and not to deal with succession. The provision of nomination was introduced to lessen the burden of legal heirs and also to foster a wholesome environment for corporate investment in the country. The Court held that there was lack of any material to show that the Amendment intended to provide absolute ownership of the property to the nominee.   Concept of ‘nomination’ under the Companies Act, 1956 and its connection to the law of succession  The Court referred to the concept of ‘nomination’ as enumerated by various courts under varied legislations (such as the Government Savings Certificate Act, 1959). It was asserted that due to the lack of a universally accepted definition and interpretation regarding the rights and ownership of a nominee concerning the relevant property, the Court would rely on the commonly understood meanings. The Court acknowledged that the Act does not envision a “statutory testament” that supersedes the laws of succession. It does not concern itself with the laws of succession. Nomination under the Act is not put through the same strict requirements as those applicable to the creation and validity of a will under succession laws.  Implications of the term ‘vest’ and the non-obstante clause as used under Section 109A of the Companies Act, 1956 and Bye-Law 9.11.1 of The Depositories Act, 1996   The Court held that the term ‘vest’ can have multiple meanings according to the context in which the word has been used in a provision or legislation and mere usage of the term does not give absolute entitlement over the subject matter. Similarly, it was acknowledged that the non- obstante clause also is to be understood in the context of the object and scheme of the legislation under consideration. Further, the Court stated that the term ‘vest’ has to be understood in line with Section 211 of the Indian Succession Act, 1925. Under Section 211, ‘vest’ does not entitle the administrator or executor with ownership but only entitles him to hold the property until it is distributed among the legal heirs. Section 109A of the erstwhile Act was said to address the vesting of shares or debentures from a holder to their nominee in the event of the holder’s death.. The non-obstante clause temporarily vests securities unto a nominee, to the exclusion of others to help the company in discharging its liability regarding various claims put forth by the successors of the deceased shareholders until the successors have resolved matters and are ready for the transfer of the securities.  Bye-law 9.11.1 under the Depositories Act, 1996 also provides for nomination by shareholders. Similar to Section 109A, the term ‘vesting’ here is used only in a limited context. The non-obstante clause has only been included here to facilitate the depository to handle the securities in the event of the demise of the shareholder.  Analysis & Conclusion  The judgement plays a crucial role in delineating the rights of the nominees as nominated under Section 109A of the Act. The Supreme Court has effectively negated the view held by it in Aruna Oswal v. Pankaj Oswal & Ors. wherein it was stated that the non-obstante clause employed under Section 72(3) of the Companies Act, 2013 which is pari materia to Section 109A makes the vesting of shares unto the nominee absolute. The legal stance taken by the Apex Court aligns the rights of the nominee with those of the heirs in their respective situations, offering a method to facilitate the seamless

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Lifting Or Piercing The Corporate Veil: Clarifying The Two-Step Examination

[By Arunoday Rai] The author is a student of National Law School of India University.   Introduction The doctrine of lifting or piercing the corporate veil is fundamental to the company law. This doctrine acts as an exception to the concept of a company being a separate juristic entity. It allows the court to treat the rights and liabilities of the corporation as the rights and liabilities of its shareholders. The courts in India have recently tried to expand the horizon of this doctrine to pay regard to the new economic realities behind the evolving corporate structure in the modern era.  This article contends that such an expansion of this doctrine has been on a misplaced understanding of Supreme Court (SC) precedents. The courts in India have failed to provide a sound legal basis to expand the contours of this doctrine and have failed to differentiate between various attitudes with which SC has lifted the veil in different cases. It argues that SC has used this doctrine in two types of situations: the first type involves peeping behind/lifting the veil, whereas the second type of cases involves penetrating/piercing the veil. The author sheds light on the confusion caused by the interpretation of the doctrine by the courts due to their lack of understanding of the above-mentioned two-step examination.  The Two-Prong Test   It is essential to understand what is meant when the courts lift the veil of the company. The doctrine is generally been used to impose liability on the shareholders or alter ego of the company by lifting the veil. However, the two-stage analysis in this post highlights that such a view of the doctrine is incomplete. The act of lifting the veil is not always detrimental to the shareholders/alter ego of the company but can be beneficial at times.   Peeping Behind/Lifting the Veil  The first stage in the analysis involves the least discussed act taken by the court, where it merely lifts the veil of the company. At this stage, the court lifts the veil of the company to gather information such as shareholding patterns, shareholders, control, etc. It pulls down the veil once such information is gathered and the company is treated as per the information gathered during the inquiry done by the court at this stage. For instance, the statutory lifting of the veil provided in Sections 2(46) and 2(87) of the Companies Act, 2013 is a classic example of this stage.   The SC in the case of Renusagar had to adjudicate on the issue whether Renusagar was a power plant owned by Hindalco. If both these entities were considered to have no separate existence, then Hindalco would be entitled to certain exemptions on electricity duty by the State government. The SC lifted the veil to hold that both industries had no independent existence and were inextricably linked up together. The judgment by the SC eventually benefitted the Petitioner’s company as the veil was lifted only to investigate the relationship between both entities involved in this petition.  SC has also provided certain prerequisites that need to be fulfilled before the veil is lifted or peeped into. The apex court in LIC v. Escorts had held that a veil can be lifted in various situations such as fraud or improper conduct, evasion of taxing or a beneficent statute, public interest, effect on parties, etc. It did not provide a straight jacket formula but listed broad illustrative situations where the veil could be lifted. However, it went ahead to say that in the present case, no such lifting of the veil is necessitated beyond the governing statutes involved as it is not necessary to the case.  Therefore, it should be noted that this stage only involves the court lifting the veil and is a condition precedent to the next stage of penetrating the veil where a court after gathering information may make an order against the company imposing liability on them or refrain from imposing any liability.   Penetrating/Piercing the Veil  This stage involves the imposition of liability upon the shareholders for the company’s acts through the piercing of the veil. Such liability can be seen through Section 36 of the Companies Act, 2013 where a person who knowingly or recklessly induces persons to invest money can be held liable for action under Section 447 of the Act. This provision is an example of the statutory piercing of the corporate veil where liability is imposed on a person for committing a prohibitive act.  The standard for piercing the corporate veil has been subject to contradictory judgments in India. While some courts have held that fraud is a sine qua non for piercing the veil, other courts have held to the contrary. This article supports the former view by underscoring the importance of demonstrating impropriety or evasion of legal obligations as a prerequisite for piercing the veil.  It has upheld such a view by recognizing that the law does not allow for imposing liability on mere commonality or interlocking shareholding or common directorships. The requirement of fraud or evasion of a legal obligation is essential to protect the fundamental precept that every company is a distinct legal entity. However, various courts have agreed to the latter view as they have conflated the standards to be used during the two-stage analysis while applying this doctrine.  The Confusion  Several courts in India have held that the contours of this doctrine cannot be restricted to the requirement of fraud/sham/façade and could be extended to situations where justice, equity, public interest, and convenience so required. The courts that have taken this view have tended to rely on judgments of the SC in LIC v. Escorts and Renusagar which has been interpreted to enlarge the standard of piercing the corporate veil.   For instance, the Bombay High Court in Bhatia International has held that the doctrine is no longer restricted to the cases of tax evasion but also pertains to cases that are opposed to justice and convenience. It goes ahead to state that once the court

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Decoding MCA’s move allowing Direct Listing of Indian Securities on Foreign Exchange

[By Anand Vardhan & Piyush Raj Jain] The authors are students of Gujarat National Law University.   Introduction   The Ministry of Corporate Affairs has enforced section 5 of The Companies (Amendment) Act, 2020, through a notification dated 30th October, 2023 . This has led to an addition to section 23 of The Companies Act 2013 . It is a welcome move as it seeks to boom the Indian Economy by opening the routes for Indian Companies to raise funds by directly listing their equity on foreign stock exchanges and also opening a million-dollar Indian market for foreign Investors. There is a need for diversification of investors across the Indian economy given ongoing evolution and internationalization of capital market across the globe.   As foreign competitiveness being the need of the hour for our corporate culture, this post analyzes the earlier regime, present amendment and its analysis along with our suggestions for the proposed framework by uncovering the lacunae in the proposal and the regulatory framework needed to address such lacunae.  Earlier regime  Under the existing framework, if an Indian company wished to access the global market to list its equity capital, it can only get listed through the American Depository Receipts (ADR) and Global Depository Receipts (GDR). These depository receipts acted as a security certificate representing a certain number of a share of a company of other country, not listed on stock exchange of that country, which can be purchased by investors. Further, an Indian company can directly list its debt securities on foreign stock exchange through Foreign Currency Convertible Bonds (FCCB), also known as masala bonds, and foreign currency exchangeable bonds, which are issued by companies in currencies other than the domestic currency of the company issuing it.   Present Amendment   The new provision allows direct listing of the public companies registered in India on foreign stock exchanges as permitted by the government. The added provision also empowers Central Government to exempt certain classes of public companies from following the procedural requirement prescribed in the Companies Act to get listed on the stock exchange, which may include declaration by beneficiary to the company share, filing return of significant beneficial owners of the company, punishment on non-payment of dividend etc.  Analysis  Implications  One of the most important implications and benefits which this amendment would provide to Indian Companies, especially startups is the option of a new jurisdiction to raise funds. Further, this will also help the companies in increasing their valuation. The option for companies incorporated in India to list their shares on Foreign Exchanges will enhance and diversify their sources and pool of capital as well as provide them with a larger and diverse base of investors. This will help the Indian Companies to trade their securities in major currencies across the world, like Euro, Dollar, or Renminbi.   As discussed earlier, for raising funds overseas in the earlier regime, ADR and GDR were used to list in the foreign exchanges, but it required a complex procedure even a complex restructuring such as externalization, but this amendment may do away with any such requirements by providing an alternate route to raise funds overseas. Further, this will even allow companies incorporated in India to access foreign funds at a lower cost. In the earlier regime, Indian companies had to invest cost and time for accounting in Generally Accepted Accounting Principles (GAAP) and International Financial Reporting Standards (IFRS) for ADR and GDR respectively, but the direct listing will allow Indian companies to prepare accounts in Indian Accounting Standards (IndAS) only which will help them to reduce the cost and time involved as IndAS is now globally accepted.   The implications that this amendment will have on the Indian Economy are threefold, i.e., it will lead to the spreading of the strength of the “India” brand across the globe. Along with it, the amendment will also lead to boost competitiveness for Indian Companies which will further lead to boost efficiency and growth for Indian Economy.   This amendment to the Companies Act will also contribute to the development of a clear and advanced legal regime for reverse-flipping the holding structure of companies incorporated in India by allowing the shifting of such holdings’ domicile to India.   Lacunae  There are certain lacunae concerning the amendment. These need to be clarified by the MCA at the earliest through detailed rules and regulations so that the companies incorporated in India can get the benefits of listing in a foreign exchange and explore the foreign market.  Certain points which need to be clarified by MCA at the earliest are that which kind of securities can be listed in the foreign exchanges, in which foreign exchanges could the listing be done and by which class of companies it can be done.  The amendment even talks about the power of the Central Government to exempt any class of public companies from procedural requirements under the Companies Act, but it doesn’t talk about what kind of exemptions and the procedure to give those exemptions along with the eligibility of the companies to avail those exemptions.   The other lacunae that revolve around these amendments are will the investors give the valuation same to the company listed on foreign exchange same as that they would have provided in India and also what will be the commercial benefits of the listing of a company incorporated in India on a Foreign Exchange.   There are other legal challenges, mainly related to the disparities between the compliances required by the companies in the Indian regime vis-à-vis the securities regime of the overseas countries where the company intend to be listed.   The implementation of the amendment will also require the amendments to the current legal regime governing the listing of securities on stock exchanges and foreign exchanges, namely FEMA, Companies Act and SEBI Regulations.   Suggestions for Proposed Framework  In order to do away with the above-discussed lacunae, the MCA could take its route through the following proposed frameworks.  The main question before the MCA being the criterion to choose the

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