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National Company Law Tribunal
  • By:
  • 19 Sep 2019
On 01 June 2016, the Ministry of Corporate Affairs has issued three notifications for setting and developing the National Company Law Tribunal (NCLT) and National Company Law Appellate Tribunal (NCLAT). Now, MCA after the constitution of NCLT and NCLAT has come up with the notification of rules, the procedure for filing the application, petition or appeal on 21 July 2016.

The Government establishes the Tribunals under section 8 of the Companies Act, 2013 with effect from 01 June 2016. They have also established the Debt Recovery Tribunal to deal with all insolvency cases speedily.

In the first phase, eleven benches have been set up. The Principal Bench is located at New Delhi and regional benches at New Delhi, Ahmedabad, Allahabad, Bengaluru, Chandigarh, Chennai, Guwahati, Jaipur, Hyderabad, Kolkata and Mumbai. Any company that wants to continue against its debtors can approach NCLT for Winding Up, Liquidation to recover their dues or Strike Off.

'The Corporate Insolvency Resolution Process (CIRP)’ can be initiated by making an application to the NCLT by the Financial Creditors under Section 7 of Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as "IBC") or by Operational Creditors under Section 9 and by the Corporate Debtor himself under Section 10.

Significance of NCLT and NCLAT

It is a semi-legal specialist institution formed by the suggestion provided by the Eradi Committee to promote the amicable settlement amongst corporate matters. It is formed by the notification provided in the official gazette and with an intent to reduce the burden on the traditional court of law. NCLT helps to set off corporate claims, declare the corporate rights, undo the wrong done further deciding the punishment and penalties for the person held liable for the violation of the provision of Companies Act, 2013 and matters incidental to. NCLT is an institutional version of courtroom specifically dealing in matters relating to companies/ corporate entity for filtering the futile claims in providing a conclusion to request coming up to the authority smoothly without unnecessary delays. NCLT is the product of the Eradi Committee which filtered or eliminated all the lacunas of the previous institutions established previously. NCLAT, on the other hand, is a type of audit institution on the decisions provided by NCLT. It is an appellate tribunal handling appeals of in cases filed with the NCLT, by the aggrieved by the decision was given, then to file an appeal against the same. Further, if any person is aggrieved by the decision given by the NCLAT, then he/she may refer the matter to the High Court or Supreme Court.

National Company Law Tribunal powers

NCLT, as a new institution, has been given a few additional powers that were attributed to the previous authorities, all the powers had to be read as additional to previous powers and not in isolation. 

Following are the powers of NCLT:

Class Action SuitA class action suit is to be filed in National Company Law Tribunal when suit consisting of claims are standard for more than one person or people at large. This new pattern of filing a complaint against the company was new method making it is more accessible to people located in different areas, for claims like this an agent is appointed to deal with the matter that had been filed in NCLT.

Registration of Companies: A new stringent scrutinizing committee has been formed to scrutinize the document and other incidental requirements for registering a company under the guidelines issued by the NCLT. It also has been allotted with the powers of wiping out the registration of the company/ companies. A new method of de-registration has supplemented the powers given by the law to authorities.

Order for the Investigation: NCLT now can order a special investigation under the certain order established by the law in this behalf, an order for investigation of the companies result in in-depth checking of the transaction, company affairs and any other matter incidental to company or stated in the investigation order.

Conversion of Company from Public Ltd. to Private Ltd.: A prior approval from NCLT is to be taken for the process of changing status from public to private ltd company, Nclt may after receiving the application for such change of status provide direction to reduce the deviation or providing the precautionary measure for avoiding the violation of provisions of Companies Act, 2013.

The stages of Resolution Process are as below;

  1. Notice Publication - The RP publishes a notice in newspapers to call for filing claims against the Corporate Debtor by a stipulated time.
  2. Processing of Claim - After RP receives the claims, it will check the same from the records of the Corporate Debtor.
  3. Memorandum - After the claims have been verified, the RP prepares the Memorandum which contains all information of Assets and Liabilities of the Corporate Debtor. Moreover, that Memorandum will be sent to all Financial Creditors of the Corporate Debtor, whose claims have been accepted.
  4. Meetings of Committee of Creditors - After sending the Memorandum, a meeting of Committee of Creditors will decide whether the information mentioned in the Memorandum has been correctly prepared or not. The Committee of Creditors will include the financial creditors of the Corporate Debtor.
  5. Resolution Plan - The RP after the formation of the Memorandum will invite the resolution plans for the debtor by an advertisement in the newspaper.
  6. Rejection or Acceptance of Resolution Plan - After receiving the plan of the resolution, the RP will conduct a meeting of Committee of Creditors to check the plan which will result in acceptation or rejection, and after that, the plan is submitted before NCLT for final approval.
  7. Extension - The duration for the completion of the CIRP is 180 days, and if the Committee Of Creditors (COC) does not accept the Resolution Plan within 180 days then they can extend the duration for not less than 90 days.

Rules to be followed by the Ganpati Mandals
The Mandal should take permission from the maintenance department of Brihanmumbai Municipal Corporation (BMC), which sanctions the setting up of the mandap. The willing Mandals need to submit an online application for receiving the consent for setting up the Mandap.

The BMC issues two months prior notice to the Ganesh festival for the Ganesha Mandals across the city to seek permission by applying online. The BMC online application system is linked with the police and traffic department, respectively.

Before submitting the application to BMC, the applicant needs to sign an undertaking cum Indemnity Bond for fire safety requirements of the fire brigade. The Chairman, Secretary and applicant all three have to sign the undertaking or the bond.

After submitting the applications, the applications are forwarded to ward offices along with the police and traffic department within three days for approval.

Apart from the online permission, the Mandals have to obtain permission from the local police station for Agaman, Visarjan and playing sound system.

The notice issued states that the Mandals will have to follow the rules and regulations stated by BMC in Mumbai.
As per the High Court, the core committee of the Mandal has to take the permission of the City Police Commissioner so that police can ensure the right of the citizens, smooth movement of traffic and free pedestrian movement on footpaths.

Mandals should comply with the rules related to the location, immersion, sound limits etc. Some of the rules that should be followed by the Mandals are as follows:

  1. The Mandal cannot set up a Mandap which encroaches a footpath or obstructs traffic. 
  2. The Mandal Committee members shall take measures to prevent sound pollution and should not use loudspeakers after 10 p.m.
  3. The Mandap should be located minimum 10 feet away from a building; also the road leading towards the Mandals should not have any obstructions for e.g. the parked vehicles, hoardings, etc. 
  4. The Mandap should be at least 15 meters away from railway and from combustible places such as an electric sub-station, chimney or furnace.
  5. The necessary fire safety measures should be taken, including electrical wiring, fire extinguishers (both water and dry powdered ones), etc. 
  6. Permission from police and traffic department is essential.
  7. The rules stated by BMC has clearly mentioned that the holes should not be made on the road. If any Mandals is found making holes on the road will be penalized with a hefty fine.
  8. It is necessary to mention the dimension of the Mandap with respect to its height, width, size, etc. while filling up the application form in order to get consent.
  9. No hoardings of advertisement related to tobacco and the related products anywhere within or around the mandap shall be found. The hoardings should not create an obstruction for the movement of people and emergency vehicles like an ambulance.
  10. The Mandal should be responsible for maintaining hygiene and cleanliness all around the Mandap for all days of the festival. After the celebration is done, the very next day, the whole place where the Mandap was built should be cleaned up. There should be no presence of litter/ garbage left around the Mandals. 
  11. No stalls are allowed to set up inside the Mandals. The stalls set outside the Mandals are not permitted as they can possibly create an obstruction to the road.  It is necessary to take permission for setting temporary arches, gates which the Mandals may build temporarily at the entry or exit point of the Mandap.  
  12. Every Mandal should display the telephone or mobile number of the competent authority for various civic services, complaints, health-related complaints,  for security purpose and different type of nuisance.
  13. The toll- free number should be displayed on the Mandap for the public to lodge a complaint if any.
  14. The organisers should not deliver the speeches or try to create violence in any way by insulting or abusing the people coming for darshan.

As per the guidelines issued by Bombay High Court, the Mandals have to give an undertaking that they will not cause inconvenience to the traffic and pedestrian movement, violate fire safety rules, play loudspeaker after the appointed time, create potholes on the road where Mandals are set. The Mumbai Police issues traffic advisory this year to deploy the 40,000 personnel for security of people. The municipal authorities have allowed not more than 200 people to cross the bridges in the allotted time this year and also some roads have been closed ahead for the Ganpati festival.

Over 50 Mandals were found violating the high court norms last year, after which the BMC served a notice stating that they would not get permission to erect Mandaps if they have flouted the rules given by the BMC.

Need to amend CrPC and IPC to increase the conviction rate.
Indian Criminal system has a serious backlog on pending investigations and trials. This shows that the crises are becoming more severe with each passing year. The conviction rate in criminal cases is pitiful as stated by the Union Home Minister Amit Shah while addressing the 49th Raising Day Event of the Bureau of Police Research and Development (BPRD). The level of success depends upon the level of evidence required for conviction. He addressed the age-old police techniques like ministering third degree, and the typical process of phone tapping will not help yield the desired results to curb the crime rate.
 
Suggestion for the Bureau of Police Research and Development

The Union Home Minister has suggested the following steps to improve the rate of conviction substantially:

  1. He indicated that the rate of conviction could be corrected when supported by forensic evidence.
  2. Shah suggested BPRD prepare a blueprint for the creation of modus operandi bureaus at the state and national level.
  3. Bureau will study the technique of crime and the mentality of criminal, and this will help to reduce criminal activities.
  4. They will prepare and suggest better working policies and technology solutions for the police forces
 
Forensic Science Laboratories (FSL):

FSLs are government laboratories equipped and charged to deal in the scientific examination of circumstantial evidence such as examination of poisons, blood, and physical.FSL reports are the reports suggested by the government laboratories in almost all criminal cases. The FSL report given to the court is the final phase in Conviction.

Usage of improvised FSL for increasing the conviction rate:

The use of forensic evidence is the need of the hour for police investigators to clinch convictions against criminals.
The government is revolving to make forensic evidence compulsory in all criminal cases where the quantum of punishment is seven years or more. The usage of FSL should be encouraged and made compulsory under law.
 
Consequences of improvising tools for Forensic evidence:

The Union Home Minister suggests that if charge sheet is supported by forensic evidence, then there will be no more options before the judge and the defence lawyers.  He added that automatically the conviction rate would be improvised. 
Police and national forensic science university will be created at the national level along with college affiliates for students who are willing to pursue a career in police or CAPFs. The ambit of forensic based investigations will be widened. 
 
Upcoming reformations:

As there are no changes in CrPC and IPC for a long time, the suggestions and recommendations of the BPRD will initiate a process for effective changes in CrPC and IPC the primary laws governing the criminal offences in India.

Motor Vehicle Amendment Act, 2019
On 23rd July 2019, the LokSabha has passed the Motor Vehicle Amendment Act, 2019 but they have only recently come into effect. Union Minister of Road Transport and Highways introduced the act to amend the Motor Vehicle Act, 1988. It has introduced the norms for acquiring the driving license and strict penalties for the violation of traffic to reduce the road mishaps in the country. The transport ministry issued a notification on August 28, 2019, listing out all the laws that have come into effect from September 1, 2019.

The notable amendments are as follows:

Driving License: The amendment proposes to remove the minimum qualification required to own a driving license, as long as the applicant holds a certificate from a driving school. As per 1988 law, of the Central Motor Vehicle Rules, 1989 only a person who has completed class VII can hold a license. In the case of expiry of the license, it can get renewed in the period of one year. Drivers may be asked to undergo a driving refresher training course for reviewing the licenses once they are suspended or revoked.

The new law also provides regulation for taxi aggregators such as Ola and Uber. They will now have to get a license from the state government where they operate along with the confirmation of the Information Technology Act 2000.

Accountability: The amendment seeks to fix the liability of contractors for the designs of faulty roads. If the contractor failed to follow the prescribed designs, and if the failure results in injury or death of that person, they will be held responsible for the same. This provision was not included in the earlier Act. Juveniles are not allowed to drive a vehicle, and if found the driving or causing an accident, the guardian or the owner will be held liable for the offence. The penalty for this crime is Rs25000 or 3 years imprisonment for guardian/owner or both

Earlier, there was no law directing manufacturer to withdraw defected models or component of a vehicle from the market. The new amendment empowers the centre to do so if defects are reported by considerable users.

Protect the Good Samaritans: The amendment has empowered the Central Government to make rules protecting the good Samaritans from civil or criminal proceedings. The Good Samaritans are the people rendering emergency care to the road accident victim.

Liability: The maximum compensation a claimant can get from the government is Rs.5 lakh in case of death and Rs.2.5 lakh in case of grievous hurt on a no-fault basis. The no-fault victim is those who are killed in a hit and run accidents in which the vehicle undertaking accident was not identified.

Insurance: The amendment introduced a Motor vehicle Accident Fund that will provide compulsory insurance on all road vehicles and compensation for the victim of a hit and run and other cases of accident. It is necessary to claim petition within six months from the date of the accident. In case of death of the injured person, his legal representatives will have the right to claim the compensation. The amendment has added the concept of the golden hour, i.e. the central government have scheme giving cashless treatment to the victims in the first hour of a traumatic injury.

Penalties:

Offences

Penalty as per old  Act in Rupees

Penalty as per the new amendment in Rupees

Violation of traffic rule and regulation

100

500

Driving a vehicle without holding a license

500

5000

Not wearing a seat belt

100

1000

Drink and Drive case

2000

Imprisonment up to 6 months or fine of Rs. 10000 or both.

Not allowing emergency vehicle to pass

No provision

10000

If driver over speeds the vehicle

400

1000 – light vehicle

2000- heavy vehicle

Driving without qualification

500

10000

Vehicle without permit

5000

10000

Driving without insurance

1000

2000

Travelling without Ticket

200

500

Dangerous Driving

-

Imprisonment of 6 months to 1 year and/or fine of Rs. 1000- Rs. 5000 for first offence and imprisonment up to 2 years and/or fine up to Rs. 10000 for the second offence.

 

Causing obstruction to free flow of traffic

50

500



The Growth of technology Patents in India

The word ‘Patent’ is equivalent to monopoly rights over an invention. Not all inventions are patentable and nor is it essential to protect one’s invention solely through a patent. Once a patent is granted, the patent inventions confer certain rights on the rightful owner, it is a right capable of protection under the Patent Act. 

A patent is essential to a company because it can help to safeguard one’s invention, innovation or an idea. It can protect any product, design or process that meets certain specifications based on its originality, practicality, suitability, and utility.

As a report generated by the World Intellectual Property Organization (WIPO) listed below is a list of reasons as to why one should patent their idea and innovation.

The owner has the following rights:

  1. Patents provide exclusive rights which usually allows your Company to use and exploit the invention for the term of the Patent
  2. Deter competition based on this monopoly/exclusive rights
  3. Controlled deployment and development process of your technology
  4. Through these exclusive rights, your Company can prevent others from commercially using your patented invention. This helps you to establish your Company in the market
  5. You can commercialize on these exclusive rights to obtain higher returns on your investment
  6. You have an opportunity to license or sell your invention in order to optimize on your commercialization and earn a chance to charge a hefty royalty fee 
  7. An IP right such as a Patent will increase your negotiating power in case of a joint venture/ new business
  8. Shareholders will perceive your IP portfolio as a high level of the technological capacity of your Company.

The History of patent law in India can be traced back to 1911 when the Patent and Design Act was enacted, however, it was repealed and the present Patents Act, 1970 came into place to amend and consolidate the earlier patent laws.

The rightful owner enjoys monopoly rights over his patent for a period of 20 years after which it shall be open to exploitation by others. This time period starts soon as you file your patent.

India is on course to become one of the leading hubs for innovation, research and development, because of which even the intellectual property (IP) industry is showing huge potential for growth.

Emerging techs such as the Internet of Things (IoT), Artificial Intelligence (AI), and Cyber Security accounted for 50 % of the tech patents filed in the year 2017 to 2018.

Wipro has filed a patent application to generate a safe navigation path for driverless vehicles, and TCS has filed a patent application for pest management, where the system provided pest forecasting using historical pesticide usage information.

Innovation is the key to drive the transformation, and such IP is a testimony to this transformational growth in India.

As stated in the report updated by NASSCOM ‘Emerging Technologies: Leading the next wave of IP Creation for India', Indian firms filed over 4,600 patents between 2015 and 2018. A majority of these patents were in the technology domain.

The report has showcased how Indian firms are creating IP assets in the United States, which is one of the most favoured countries to file a patent.

Additionally, the report also has found that the share of tech patents are on the rise. During the year 2017-18, the tech patents were 65 per cent of the total patents filed.

Having patents in an emerging tech is definitely a source of competitive advantage, especially as companies are transitioning to build and use products and platforms on which companies compose, design and implement their work and research.

The Nasscom President stated that Innovation is the key to drive transformation and such patents are a testimony to this transformational growth. She further added that as a country,  India could further strengthen its potential as an innovation hub through more frequent investments in research and strategic collaborations. We are confident that we will usher in a new wave of innovation and intelligence in the country.

Nikhil Malhotra, from Tech Mahindra, said that in addition to being a competitive advantage, creating IP can also help to drive long term revenues as well as boost employee morale.

Indian technology companies have stepped up filing patents as they build solutions and products in emerging technologies and look to monetise their IP and grow their business faster. The proliferation of digital technologies across industries is perhaps the biggest reason why these firms are rushing to create IP.


Citizenship under the Indian Constitution

What does the term Citizenship mean?

For many, the word ‘Citizenship’ conjures images of a strong national identity determined by birth, ethnicity, history, culture and. In a legal sense, ‘Citizenship’ indicates the political status and relationship shared by an individual and the nation. Generally, the individual is conferred protection by the nation in return for fulfilling certain obligations owed by the individual to the state.

Citizenship is a status granted by becoming a member of the nation through appropriate law. Any person can become a member of the country by satisfying the legal requirements of the respective country. In simple terms, the virtue of being a citizen of the country is called citizenship.

Every state grants some rights and privileges to its citizens, and they are also bound to follow the regulations framed by the government of the respective country.

Nationality Vs Citizenship

‘Nationality’ and ‘Citizenship’ are one of the most misconstrued and misunderstood terms. For a layman, ‘nationality’ works as a substitute for ‘Citizenship’ and vice versa. However, one of the major difference between the two concepts is that nationality can't be changed while citizenship can. To further explain this statement, we should take the following into consideration: The nationality of a person, reveals his/her place of birth, i.e. from where he/she belongs. It defines the belongingness of a person to a particular nation. And on the contrary, Citizenship is granted to an individual by the government of the country, upon completing legal formalities.

The Citizenship law in India

The Citizenship law in India is governed by the Citizenship Act, 1955 and The Constitution of India. India is one of the very few countries whose Citizenship law is incorporated in the Constitution. Due to unavoidable circumstances that arose because of the partition of India and Pakistan and the freedom of Indian state to either join the Union or leave it, the citizenship law had to be incorporated in the Constitution.

How can one acquire Indian citizenship?

To be entitled to acquire Citizenship by Domicile there are 3 conditions which need to be fulfilled:-

  1. He must have been born in the territory of India,
  2. Either of his parents must have been born in the territory of India,
  3. He must have been ordinarily residing in India for not less than five years immediately preceding the commencement of the constitution.

Ways through which a person can acquire Citizenship and become a recognized citizen are:-

  1. Birth (A Person Born in India shall be Citizen),
  2. Descent (A person born outside India shall be a citizen of India by descent),
  3. Naturalization (Citizenship of India by naturalisation can be acquired by a foreigner who is ordinarily resident in India for twelve years),
  4. Registration (Citizenship of India by registration),
  5. Marriage,
  6. Incorporation of the territory.

Status of Dual Citizenship in India

The Indian constitution does not allow its citizens the right to dual citizenship. But there are some powers that are in relation to dual citizenship, similar if not the same. When you become an Indian citizen, you will be obliged to give up your previous passport.

The provision of Overseas Citizenship of India and Person of Indian Origin is often confused with dual citizenship. There is a misconception that our Indian Constitution grants the provision for dual citizenship. However, the terms are explained below:

Non-Resident Indians: Those who still hold Indian passports but work or live in other countries;

Person of Indian Origin (PIO) cardholder: Someone who is a foreign citizen but who at some point of time held an Indian passport or whose parents/grandparents/great-grandparents were born and permanently resided in India or is a spouse of a citizen of India or a PIO and;

Overseas Citizenship of India (OCI) cardholders: Those who have given up their Indian passports but hold certain rights in India except voting rights.

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Flat Rate Service

Tenant Eviction Notice

Starting from 5000

Leave and Licence Agreement

Starting from 4500

Drafting Memorandum Of Understanding

Starting from 15000

Preparing Affidavit

Starting from 300

Anticipatory Bail

Starting from 12000

Cheque Bounce Notice

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Marriage Registration

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Trademark Registration

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