THE INSOLVENCY AND BANKRUPTCY CODE (IBC) AND THE STATE REGULATORY AUTHORITY (SRA) CAN HAVE CONFLICTS IN HOW THEY HANDLE CORPORATE INSOLVENCY.
The Slum Rehabilitation Scheme (SRS) and the Insolvency and Bankruptcy Code (IBC) are different frameworks that are used to address housing issues and insolvency. Slum Rehabilitation Scheme (SRS) A PPP scheme that encourages private developers to invest in slum rehabilitation projects The Slum Rehabilitation Authority (SRA) oversees, coordinates, and approves the SRS The SRS offers extra Floor Square Index (FSI) to developers in exchange for their investment Insolvency and Bankruptcy Code (IBC) A structured framework that helps resolve insolvencies The IBC aims to recover maximum asset value and resolve distressed entities quickly. The IBC has a stipulated resolution time of 330 days, including litigations POWERS OF SRA Attachment of property The SRA (Slum Rehabilitation Authority) may want to attach property under the PMLA, but the IBC’s Section 32A protects property from confiscation. Pre-CIRP electricity dues The SRA shouldn’t be held liable for pre-CIRP electricity dues once a resolution plan is approved. Stay of acquisition process The RP may want to stay the SRA’s acquisition process, but the HC ruled that the IBC doesn’t allow staying the operation of another law remove defaulting developers under the Insolvency and Bankruptcy Code (IBC). How the SRA can pursue avoidance applications If the Resolution Plan gives the SRA the power to pursue avoidance applications, then the SRA can do so. The SRA can pursue avoidance applications that were filed by the erstwhile Administrator and are pending before the NCLT. How the IBC prevails over other laws The IBC’s Section 238 states that the IBC prevails over other laws in cases of conflict. In the case of Rakesh Kumar Gupta v. Mahesh Bansal, the NCLT ruled that the IBC’s Section 7 can be applied even if there are proceedings pending under other laws. The IBC is a more recent special legislation, so it prevails over earlier laws. However, the IBC is a special legislation that prevails over other laws, including the SRA, in cases of conflict. the Insolvency and Bankruptcy Code (IBC) of 2016 prevails over other laws if there is a conflict, according to Section 238 of the IBC. This means that the IBC takes precedence over any other law, including state enactments. How IBC prevails over other laws. Section 238 includes a “non-obstante clause” that neutralizes any contrary provisions. The IBC’s provisions have effect notwithstanding anything inconsistent with any other law. The IBC’s overriding effect has been upheld by the Supreme Court. Examples of IBC overriding other laws: In Leo Edibles & Fats Ltd v. the Income-tax Department, the court ruled that the IBC overrides the Income Tax Act when determining dues during liquidation. In Alchemist Asset Reconstruction Company Limited v Hotel Gaudavan Private Limited and Others, the Supreme Court ruled that the IBC prevails over state enactments. BUT SLUM LAW AND IBC VIEW OF COURT IS AS UNDER: The provisions of the IBC are not meant to defeat slum redevelopment and similar or allied statutes. To hold otherwise would simply be unthinkable. It would mean that a Writ Court would put a premium on corporate wrongdoing and that even a defaulting corporate debtor who had not complied with the terms of a LoI […]
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ARE LAWS CAUSING THE DESTRUCTION OF THE FAMILY NUCLEUS THREAD?
#BREAKING Union Law Minister Arjun Ram Meghwal confirmed a review of BNS Sections 85 and 86, replicating the repealed IPC Section 498A, due to misuse and inadequate safeguards for men. This is the first review of the new Indian criminal codes, aimed at preventing frivolous complaints while protecting women under domestic violence laws ( 9th January 2025) HINDU MARRIAGES AND LAW – A BRIEF ANALYSIS Why we are discussing this point. Has emotional, civic, cultural and aesthetic moral, values and responsibilities ruptured? Girls are pregnant from illicit or unauthenticated relationship and then when man is not ready to marry, she does two things apply for abortion and FIR for rape. The sense of responsibility towards parents has evaporated? Let’s discuss the various issues. Oyo, a hotel chain has made policy to not to permit couples unless they show marriage certificate. This shows the hotel chain doesn’t want to get involved in criminal and other consequential legal trouble. It says that we are not running a brothel. Hotel authorities are right. But do youngsters understand what path they have chosen? Whether girls understand what matrimonial responsibilities she is objecting is much better than having unauthenticated relationships. In such unauthenticated relation she does not get more than stress, insecurity and no legal rights, sometimes even cut into pieces and thrown in jungle. Misuse of freedom and education will in long run reverse entire process and in future again women will be arrested to household and early marriage. You may say that there is advancement in science but there is no change in biological science. Hindu marriage rituals contains two main ceremony. One is Kanyadaan and another is phera. Marriage has four basic vows. Pious institution of marriage is taken over by physical need. Girls were married at 16 may become right ritual if the trend of unauthenticated relations continue to play real havoc. There are questions asked on social media platforms that does school criminalize love? Those who are involved in school always get married? . All such incidents are not forceful. First phera: The couple prays for nourishment and prosperity, and promises to support each other’s needs and establish a stable home Second phera: The couple prays for strength and courage, and promises to support each other through challenges Third phera: The couple prays for wealth, and asks for the strength to share happiness and pain together Fourth phera: The couple prays for increased love and respect for each other and their families Fifth phera: The couple prays for noble children Sixth phera: The couple prays for a long and peaceful life together Seventh phera: The couple prays for companionship, togetherness, loyalty, and understanding Nowadays youngsters have multiple heart breaks and relationships. Which ultimately leads to mental disorders. Sundown parties and unaccountability take a toll of beautiful life song. Divorces are common and courts also promote by reducing waiting time of six months for mutual divorces. Demand for alimony and maintenance is the main fighting point for which multiple FIRs are filed as per legal advice against husband and his family members. The irresponsibility towards children before coming to conclusion […]
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CAN WE TRANSFER A FLAT IN A HOUSING SOCIETY WITHOUT OBTAINING A PROBATE? IF YES HOW?
A person generates wealth for his survival, comfort and luxury. He earns wealth for growth of his family and children. When becomes old same children start talking of inheritance of his wealth while he is living. There are various provisions of law to bequeath property : a. after death of a person, which is WILL or Vasiyat. When you make a WILL your inheritance is governed by Indian Succession Act 1925. This is very common practice and people always make WILL during their lifetime. This WILL or Vasiyat operates or say becomes live after death of make of WILL. This is where entire drawback or lacuna lies. Court even permits registered WILL in a way rewrites last wish of the deceased. Is it correct to do that? Once challenge to the WILL is permitted the Probate application is converted into Suit. Which takes decades to come up for hearing. Resultant the parties to avoid litigation and waste of time settle the claim in most of the matters. The question arises is whether this was the last wish of the deceased? Answer is No. But it happens. b. Next is inheritance governed by personal law. i. For Hindus its Hindu Succession Act 1956. There are two school of thoughts Dayabhaga which is prevalent in West Bengal where son gets inheritance in fathers property only on death of the father. While in rest of India Mitakshara School of Law is followed. In this a child in the womb gets coparcenary rights in the family property. c. Hindu WILL requires to be probated. ii. Islamic Law 1. The Holy Quran 2. The Sunna – that is, the practice of the Prophet 3. The Ijma – that is, the consensus of the learned men of the community on what should be the decision on a particular point 4. The Qiya – that is, an analogical deduction of what is right and just in accordance with the good principles laid down by God. Muslim law recognizes two types of heirs, Sharers and Residuary. Sharers are the ones who are entitled to a certain share in the deceased’s property and Residuary would take up the share in the property that is left over after the sharers have taken their part. A will executed by a Muslim testator is not subject to the compulsory probate requirements under law. This would be a subject matter of Mohammedan personal law (which differs in its application among Shias and Sunnis). However they do file for probate for transfer of plot of land and other properties in Mumbai. d. In case of a Parsi section 213 (2) of the Indian Succession Act 1925 states that in case of a Parsi dying after the commencement of the Act, a probate is necessary if the WILL in question is made or the property bequeathed under the WILL is situated within the “ordinary original civil jurisdiction” of the Bombay high court. e. For WILL made by a Christian probate is not mandatory under Indian Succession Act 1956. COMMENTS: To obtain probate it takes long-time. Now a days 3-4 years even if not contested. So, […]
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CAN PARLIAMENT SET UP SPECIAL COURT TO DISPOSE OFF PENDING MATTERS? A DISCUSSION AND SUGESSIONS
Indians are a very tolerant community. Citizens are basically law-abiding. But as per data available there are more than 5 crore cases are pending in various courts across India. This includes criminal, civil, DRT, matrimonial, adoption, insolvency, and others. There is always vacancy for Judges and there is also friction between different stakeholders regarding the method of appointment. The pending cases are monetary disputes, land disputes, agricultural land, easement, flat purchasers right, and so on. This also includes international arbitration awards and their execution. When a suit is filed immediate party moves for ad-interim reliefs by way of a Notice of Motion or Interim Application as the case may be. When the order is passed same Notice of Motion comes up for a final hearing after 5 to 10 years. By that time if Plaintiff did not get the order he loses the edge and his right. Then suit may be on board for framing of Issues may be another 5-10 years. The next stage is the affidavit of evidence, admission denial of documents, and cross-examination of witnesses. When a decree is passed it takes time of 2 to 3 years for sealing. When the decree is ready for execution if not executed then we have to take out 21×22 notice in which takes another 2 years to reach and there may be objections. So, for Plaintiff entire exercise is futile. Citizens need a remedy that is speedy and result oriented. The matter doesn’t end here after the ad-interim there is an Appeal from the Order then the Supreme Court and so on and so forth. The litigation is unending and is also costly. To overcome this situation government introduced concept of mediation. It is not much successful. As far as Arbitration is concerned the new concept of institutional arbitration is introduced. It may have been successful but not much accepted by common people like new entrepreneurs, startups, and the common citizens. That is due to cost and fees of an arbitrator. Many petitions are filed in Supreme Court challenging fees of the arbitrator. (See ONGC vs Afcons Gunanusa JV) Does the question arise what is the remedy? The remedy lies in our constitution. Article 217 says the Appointment and conditions of the office of a Judge of a High Court.—(1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal and [shall hold office, in the case of an additional or acting Judge, as provided in article 224, and in any other case, until he attains the age of [sixty-two years]:] 126. Appointment of acting Chief Justice.—When the office of Chief Justice of India is vacant or when the Chief Justice is, by reason of absence or otherwise, unable to perform the duties of his office, the duties of the office shall be performed by such one of the other Judges of the Court as the President may appoint for the purpose. 127. Appointment of ad hoc Judges.—(1) If at any time there should not be a quorum of the Judges of the Supreme Court available to hold or […]
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