CONTENTS recommended by the Dr. J J Irani Committee, the concept of small companies has been introduced in the Companies, Act, 2013. The recommendation of the Irani committee in this

CONTENTSMESSAGE FROM THE PRESIDENT 3

ARTICLES

Concept of Small Company 4

Independent Director under Companies Act, 2013 6

LoanstoDirectorsandetc.:ASimplifiedProcessunderCompanyAct,2013 9

EnhancingYourInnerPowers 11

KNOWLEDGE UPDATE 15

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Readersareinvitedtocontributearticle/sfortheJournal.Thearticleshouldbeona topicofcurrent relevanceonCorporateLaw,TaxLaw,oronanyothermatterorissuerelatingtoEconomicorCommercialLaws.Thearticleshouldbeoriginalandofaround7-8pagesinwordfile(approx.2500words).Sendyourarticlesatemailid:articles@vidhimaan.comalongwithyourstudentregistrationnumber.TheshortlistedarticlesshallbepublishedintheJournal.

INVITATION FOR CONTRIBUTING AN ARTICLE

March 2018 | Student Professionals Today3

Woman is the companion of man, gifted with equal mental capacity. There is no occasion for women to consider themselves subordinate or inferior to men.

~ Mahatma Gandhi

MyDearStudents,

At the outset, let me take this opportunity to extend my heartiest compliments to the candidates for sailing successfully in the Company Secretaryship Examinations held in December, 2017!!!

Penningdownthismessage,IwouldliketosharethatthemonthofMarch,2018holdsgreatersignificancefor the Institute of Company Secretaries of India for reasons more than one. While on one hand, the InstituteproudlycelebratestheInternationalWomen’sDayon8thMarchataPan-Indialevel,withalltheRegionalOfficesandChaptershavingorganizedplethoraofeventstocommemoratethisfabulousdayofwomenachievementsandwomanhood;asecondreasonthatgivestheInstituteitsmomentsofself-appreciationandapplaudistheintroductionoftheNewSyllabusoftheCompanySecretaryshipCourse.HighlyappreciatedbyShriPrakashJavadekar,Hon’bleMinisterofHumanResourceDevelopment forhavingencompassedalltherecentdevelopmentsandsignificantarenas,thenewsyllabusisexpectedtoopenwiderdoorsofspreadingthewaveofprofessionalismandsuccessfortheCompanySecretariesoftomorrow.

Remigrating to thecelebrationsonaccountof InternationalWomen’sDay,genderparityhasbeen thefrontrunnerintermsofissuesbeingencounteredglobally.IntheIndianscenariotoo,theIndiaInc.facessignificantchallengeswhenitcomestoappointmentofwomenprofessionalsinseniorpositions.However,thankfullytheInstituteofCompanySecretariesofIndiahasbeenforeversuccessfulinkeepingthisissueatbaywhenitcomestogenderparityamongstthisleagueofprofessionals.Yet,empowermentofwomen,lendingthemvoiceintheIndiaInc.isnotjusttheneedofthehourbutamorethanpressingdirenecessity.ToquotethethoughtsoftheFatherofthenation,“If by strength is meant moral power, then woman is immeasurably man’s superior. If non-violence is the law of our being, the future is with women”.

TheabovewordssufficetoprovethatifsustainablesuccessistobeachievedinIndiaInc.,thewomenbrigadehastowhilegrabbingthebullbyitshornstakechargeofsignificantdesignationsandmanagementpositions.

Friends,Iamsurethatasaneliteprofessioninthefieldofgovernance,weareandwouldkeepservingourexcellenceinempoweringournationandourprofessionwiththeequalshareofempoweringthewomenin the society.

Wishing you a Happy and Empowering International Women’s Day!

BestWishes

CS Makarand Lele

President

MESSAGE FROM THE PRESIDENT


Concept of Small Company

Dharmendra Sharma, Practising Company Secretary, Delhi

Email ID : [email protected]

This article aims to provide an overview of small company under the perspectives of Companies Act, 2013.

Introduction

As recommendedby theDr. JJ IraniCommittee, theconceptofsmallcompanieshasbeenintroducedintheCompanies,Act,2013.Therecommendationof the Irani committee in this regard was as under:

“The Committee sees no reason why smallcompanies should suffer the consequencesof regulation that may be designed to ensurebalancing of interests of stakeholders of large,widelyheldcorporates.Companylawshouldenablesimplifieddecision-makingproceduresbyrelievingsuch companies from select statutory internal administrativeprocedures.Suchcompaniesshouldalso be subjected to reduced financial reportingand audit requirements and simplified capitalmaintenance regimes. Essentially the regime for small companies should enable them to achievetransparency at a low cost through simplifiedrequirements.Suchaframeworkmaybeappliedtosmallcompaniesthroughexemptions,consolidatedin the form of a Schedule to the Act.”

The concept of ‘Small Company’ has beenintroducedforthefirsttimebytheCompaniesAct,2013(the‘Act’).Aclassificationofaprivatecompanyintoasmallcompanyisbasedonitssize,i.e.,paidup capital and turnover. TheAct provides certainrelief/exemptionstothesecompanies.TheActalsoprovides for a simplified scheme of arrangementbetween two small companies, without requiringtheapprovaloftheTribunal,i.e.,withtheapprovalofCentralGovernment.

Definition

Clause(85)ofsection2definesasmallcompanytomean–acompany,otherthanapubliccompany,(i)paid-upsharecapitalofwhichdoesnotexceedRs. 50 lakh or such higher amount as may beprescribed which shall not be more than Rs. 5crore;or(ii)turnoverofwhichasperitslastprofitandlossaccountdoesnotexceedRs.2croreorsuchhigheramountasmaybeprescribedwhichshall not bemore than Rs. 20 crore. However, (i)aholdingcompanyorasubsidiarycompany,(ii) a company registered under section 8, and(iii) a company or body corporate governed byany special Act have been excluded from thepurviewofasmallcompany.

Clause (XII) of section 2 of the Companies(Amendment) Act, 2017 has increased themonetarylimitsfromRs.5croretoRs.10croreinthecaseofcapitalandRs.20croreincreasedto Rs. 100 crore in the case of turnover. Eventhoughboththeholdingcompanyandsubsidiarycompany may fulfill the capital or turnoverrequirement of a small company, they will stillfall outside the purview of small company andaccordinglythebenefitswhichareavailabletoasmallcompanycannotbeappliedtoacompanywhichisholdingorsubsidiarycompany.Toputitsimply:

l Onlyaprivatecompanycanbeclassifiedasa small company.

l Holding company, subsidiary company,charitablecompanyandcompanygoverned


byanySpecialActcannotbeclassifiedasasmall company.

l For a small company, either the paid-upcapitalshouldnotexceedRs.50lakhortheturnoverasper laststatementofprofitandlossshouldnotexceedRs.2crore.

l Thestatusofacompanyas“smallcompany”may change from year to year. Thus,the benefits which are available during aparticular yearmaystandwithdrawn in thenextyearandbecomeavailableagaininthesubsequentyear.

Privileges/Exemptions Available to a Small Company

The privileges/exemptions available to a smallcompany are same as that available to a one-person company, but not all privileges availabletoaone-personcompanyareavailabletoasmallcompany.Exemptionsavailabletoasmallcompanyareasfollows:

l Signatures in the annual returns – Company secretary (CS) or when there isno CS, a single director of the company can signtheannualreturnsoftheCompany.ButsinceasmallcompanyneednothaveaCS,the director can sign the annual returns.

l Board meetings – Small company may hold only two board meetings in a year.Thereshouldbeaminimumgapof90daysbetweenthetwomeetingsandtheycanbeheld in each half of the calendar year.

l Financial statement – Small company is not requiredtoincludethecashflowstatementasapartofitsfinancialstatement.

l Auditor rotation–Themandatory rotationof the auditor or the maximum tenure ofanauditorbeing5years in thecaseofanindividualand10yearsinthecaseofafirmof auditors do not apply to a small company.

l Merger process –Themerger process ofsmall companies has to be approvedonafasttrackbasiswithoutrequiringtheapproval

of the Tribunal, ROC, official liquidator,membersholdingatleast90%ofsharesandmajoritycreditors.

l Consolidated financial statements – As per sub-section (3) of section 129 of theAct, it appears that small companies are not required to prepare consolidated financialstatements.However, thesmall companieswhich have an associate company or jointventure have to prepare the consolidatedfinancialstatements.

l Fees under section 403 of the Act – Fees forfilingsandotherformalitiesundersection403isalsocomparativelylowerforthesmallcompanies.

Conclusion

A company may classify as a small company in a particular year but may become ineligible inthenextyearandmaybecomeeligibleagain inthe subsequent year. This status is determinedon the basis of theAnnual returnwhich is filedafter the end of every financial year. This formneeds to have an attached certificate whichcertifies thecompany tobeasmall company. Ifthecompanyisnolongerasmallcompany;alongwiththechangeinstatus,thebenefitswhichareaccordedtoasmallcompanyarealsowithdrawn.The moot question which remains unansweredhereisregardingthebenefitswhichareaccordedto a small company. These benefits have beengiveninordertoensurethattheinterestsofsuchcompaniesareprotectedfromtheconsequencesof regulationsdesigned tobalance the interestsofthestakeholders.TheActfacilitatesbusiness-friendly regulations for the small companies and is a positive step taken towards promotinginvestmentsandsmallcompanies.

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Concept of Small Company


Independent Director under Companies Act, 2013

Ankit Mangal, Company Secretary, Outlook Publishing (India) Pvt. Ltd.

Email ID : [email protected]

The article intends to summarize the provisions of Companies Act, 2013 in relation to Independent Directors.

Introduction

An independent director is a director (member) ofaBoardof directorswhodoesnot haveamaterialor pecuniary relationship with company or relatedpersons,exceptsittingfees.TheCompaniesAct,2013(the‘Act’),forthefirsttime,definesan‘Independentdirector’andthedefinitioninclause(47)ofsection2isidenticaltotheoneprovidedintheSEBI(IssueofCapital and Disclosure Requirements) Regulations,2009,which is applicable only to listed companies.Clause (47) of section2 says that an ‘independentdirector’meansanindependentdirectorreferredtoinsub-section(6)ofsection149.

Applicability to Companies

(i) Every listed public company shall have atleastone-thirdof the totalnumberofdirectorsasindependent directors,

(ii) Following class or classes of companies shallhaveatleasttwodirectorsasindependentdirectors:

l PublicCompanieshavingpaidupsharecapitaloftencrorerupeesormore;or

l Public Companies having turnover ofonehundredcrorerupeesormore;or

l Public Companies which have, inaggregate, outstanding loans or borrowingsordebenturesanddeposits,exceedingfiftycrorerupees.

Qualification to Become Independent Director

An independent director means a director other than

amanagingdirectororawhole-timedirectororanomineedirectorwhodoesnothaveanymaterialorpecuniaryrelationshipwiththecompany/directors.Sub-section(6)ofsection149oftheActprescribesthecriteriafor independentdirectorswhichareasfollows:

l WhointheopinionoftheBoard,isapersonofintegrityandpossessesrelevantindustrialexpertiseandexperience.

l Such individual shall not be a promoter orrelated to promoter of the company or its holding,subsidiaryorassociatecompany.

l Suchindividualsmustnothaveanymaterialor pecuniary relationship during the twoimmediately preceding financial years orduring the current financial year with thecompanyor itspromoters/directors/holding/subsidiary/associatecompany.

l The relatives of such person should nothavehadanypecuniaryrelationshipwiththecompany or its subsidiaries, amounting to2percentormoreofitsgrossturnoverortotalincomeorRs.50lakhorsuchhigheramountas may be prescribed, whichever is less,duringthetwoimmediatelyprecedingfinancialyearsorinthecurrentfinancialyear.

l He,eitherdirectlyoranyofhisrelatives,-

(i) doesnot hold or hasheld thepositionofakeymanagerialpersonnelor isorhas been employee of the companyor its holding, subsidiary or associatecompany in any of the three financial



years immediately preceding the financialyearinwhichheisproposedtobeappointed;

(ii) isorhasbeenanemployeeorproprietororapartner,inanyofthethreefinancialyears immediately preceding the financialyearinwhichheisproposedtobeappointed,of–

(A) a firm of auditors or companysecretaries in practice or cost auditors of the company or its holding,subsidiaryorassociatecompany;or

(B) any legal or a consulting firmthat has or had any transaction with the company, its holding,subsidiary or associatecompany amounting to ten per cent. or more of the gross turnoverofsuchfirm;

(iii) holdstogetherwithhisrelativestwopercentormoreofthetotalvotingpowerofthecompany;or

(iv) is a Chief Executive or director, bywhatevernamecalled,ofanynon-profitorganisationthatreceives25%ormoreof its receipts from the company, any of its promoters, directors or its holding, subsidiary or associate company orthatholds2%ormoreofthetotalvotingpowerof thecompany, thenalsohe isnot eligible for office of independentdirector;or

(v) possessessuchotherqualificationsasprescribed inrule5asan independentdirectorshallpossessappropriateskills,experience and knowledge in one ormorefieldsoffinance,law,management,sales, marketing, administration,research, corporate governance,technical operations or other disciplines relatedtothecompany’sbusiness.

Declaration by an Independent Director

Sub-section (7) of section 149, prescribes thateveryindependentdirectorshallgiveadeclaration

thathemeetsthecriteriaofindependencewhen-

(a) heattendsthefirstmeetingoftheBoardasadirector;

(b) thereafteratthefirstmeetingoftheBoardineveryfinancialyearand

(c) whenever there is any change in thecircumstances which may affect his statusas an independent director.

Code of Conduct

Sub-section(8)ofsection149prescribes that thecompanyandindependentdirectorsshallabidebytheprovisionsspecifiedinScheduleIVwhichspecifiestheCodeofconductforindependentdirectors.TheCode includes guidelines of professional conduct, role and functions, duties, manner of appointment, re-appointment, resignation or removal, separatemeetings,evaluationmechanism.

Remuneration

As per sub-section (9) of section 149 anindependent director shall not be entitled to anystockoption.Hemayreceiveremunerationbywayofsittingfee,reimbursementofexpensesincurredforparticipationintheBoardandothercommitteemeetingsandprofitrelatedcommissionasmaybeapprovedbythemembersasprovidedundersub-section(5)ofsection197oftheAct.

Manner of Selection of an Independent Director

Accordingtosub-section(1)ofsection150of theAct,anindependentdirectormaybeselectedfromadatabankofeligibleandwillingpersonsmaintainedby theagency (instituteorassociationasmaybeauthorisedbyCentralGovernment).Suchagencyshall put data bank of independent directors onthewebsiteofMinistryofCorporateAffairsoranyother notified website. Company must exercisedue diligence before selecting a person from thedata bank referred to above, as an independentdirector. It isclarified that it isnotmandatory thatindependentdirectorshouldbeappointedonlyfromthedatabankinviewoftheword‘may’appearingin the section.


Appointment and Tenure

Sub-section(10)ofsection149prescribes,subjectto the provisions of section 152, an independentdirectorcanbeappointed fora termofup tofiveconsecutiveyearsontheBoard.However,incaseofhisre-appointmentforfurtherfiveyearthenspecialresolution passed in general meeting and disclosure ofsuchappointmentismadeintheBoard’sreportshallberequired.Further,independentdirectorcanbeconsideredforre-appointmentafterexpirationofthreeyearsofceasingtobecomeanindependentdirector but hemust not be appointed/associatedwiththecompanydirectlyorindirectlyinanyothercapacity during the said period of three years. Any tenure of an independent director on the date of commencement of this Act is not considered for the aboveterm.Theexplanatorystatementrelatingtotheir appointment should contain a declaration from the Board that in their opinion, the independentdirectorssatisfytheconditionsprovidedintheActfor such appointment as prescribed under sub-section(5)ofsection152.

Sub-section(13)ofsection149prescribesthattheprovisionsofretirementofdirectorsbyrotationarenotapplicableonindependentdirector.

Liability

An independent director and a non-executivedirector, except the promoter or key managerialpersonnel, shall be held liable only in respect ofsuchactsofomissionorcommissionbyacompanywhichhadoccurredwithhisknowledge,attributablethroughBoardprocessesandwithhisconsentorconnivanceorwherehehadnotacteddiligentlyasprescribedundersub-section(12)ofsection149.

Meetings and Committees

TheActrequiresalltheindependentdirector’stomeetat-leastonceinayear.Themeetingmustbeconvenedwithoutthepresenceofthenon-independentdirectorsandmembersof themanagement.An independentdirectorwouldalsoevaluatetheperformanceofthechairpersonofthecompany,reviewtheperformanceofthenon-independentdirectorsandtheBoardasawholeofthecompany.

Resignation

Theindependentdirectormayresignbysendinga

letterofresignationinwritingtothecompanyandsuch letter shall be considered in themeeting ofBoard and when accepted the prescribed returnshall be filed with the Registration of Companies(‘ROC’).Thedirector’sreport(immediatelyfollowingthe date of resignation) shall contain a referenceofsuchresignation.Itisalsoincumbentuponsuchdirector to send such letter of resignation, containing detailedreasonstotheROCwithinaperiodofthirtydays. In theCompaniesAct, 1956, therewas nolegalobligationforanindependentdirectortosendacopyoftheletterofresignationtotheROC.

Removal

An independent director canalso be removedbythe company by passing an ordinary resolutionin generalmeeting after giving him a reasonableopportunity of hearing pursuant to a special notice as permissibleundersection169oftheAct.However,theCentralGovernmentvideCompanies(Removalof Difficulties) Order, 2018 dated 21st February,2018 has amended section 169 to provide thatan independent director re-appointed for secondtermundersub-section(10)ofsection149shallberemovedbythecompanyonlybypassingaspecialresolutioninsteadofordinaryresolutionaftergivinghim a reasonable opportunity of being heard.AppendixItoScheduleIVprescribesthatvacancysoarisenshallbefilledwithinaperiodof180daysfromthedateofeitherresignationorremoval.

Conclusion

The need for the independent director was feltfor providing a strong framework of corporategovernance in the functioning of the company.The Act makes the role of independent directorverydifferent from that of executivedirectors.Hehelps a company to protect the interest of minority shareholders and ensure that the Board doesnot favour any particular set of shareholders orstakeholders.TheActempowers the independentdirectortohaveadefinite‘say’inthemanagementof a company, which would thereby immenselystrengthen the corporate governance. Theconcept of appointment of independent directors is commendable and laudable provided theindependent directors are committed and dedicated tothecompanywithwhichtheyareassociated.

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Surendra U Kanstiya, Practising Company Secretary, Mumbai

[email protected]

Loans to Directors and etc. : A Simplified Process under Company Act, 2013

As you are aware that section 185, which was earlier known to be a difficult one, has now been replaced with a simpler version. Therefore, this article discusses the key features of this newly refined section by Companies Act, 2013.

Introduction

Section185oftheCompaniesAct,2013(‘theAct’)hasperhapsbeenoneof themoststernsectionsoftheActbecauseofitsprohibitorynature.Despitethe fact that few relaxations have been madeavailable through the Rules and the exemptionnotification,thesectioncontinuestoposehardshipsto the corporate sector. Therefore a significantamendment introduced by the Companies(Amendment) Act, 2017 is the substitution ofsection185byanewsection.Thenewsectionhasliberalizedtheactivitiesrelatingtomakingofloans,givingofguaranteesandprovisionofsecuritiesbythe companies and also ensured that the desired safetynetisintroducedsoastoavoidthemisuseoftheliberty.

Prohibited Transactions

According to sub-section (1) of section 185, acompany is prohibited from advancing, directlyor indirectly, advance any loan, including anyloanrepresentedbyabookdebtto,orgivinganyguaranteeorprovidinganysecurityinconnectionwith any loan taken by any of the followingpersons :

Any director of company

Anydirectorthecompany’sholdingcompany

Any partner of any such director

Anyrelativeofanysuchdirector

Any firm in which any such director is apartner

Anyfirminwhichanysuchdirector’srelativeis a partner

Permitted Transactions only if Specific Conditions are Complied with

According to sub-section (2) of section 185, acompanyispermittedtoadvanceanyloanincludinganyloanrepresentedbyabookdebt,orgiveanyguarantee or provide any security in connectionwithanyloantakenbyanyofthefollowingpersonsifthecompanycomplieswithcertainconditions.Allthesepersonsaretermedasthe‘personinwhomany of the director of the company is interested :

Any private company of which any suchdirector is a director

Any private company of which any suchdirectorisamember

Anybodycorporateatageneralmeetingofwhichnot lessthan25percentofthetotalvotingpowermaybeexercisedorcontrolledbyanysuchdirector,orbytwoormoresuchdirectors, together

Anybodycorporate,theBoardofdirectors,managing director or manager, whereof is


accustomed to act in accordance with thedirections or instructions of the Board, orof any director or directors, of the lending company

Toavail thisprivilege, thecompany is required toobtains approval from themembers by way of aspecialresolutionispassedinthegeneralmeeting;and loans are utilised by the borrowing companyforitsprincipalbusinessactivities.TheExplanatoryStatement tobeannexed to thenoticeconveningthegeneralmeetingwherethespecialresolutionisproposedforapprovalshoulddisclosethefollowingparticulars:

Details of the loans given, or guaranteegivenorsecurityprovided

Purpose for which the loan or guaranteeorsecurityisproposedtobeutilisedbytherecipient of the loan or guarantee or security

Otherrelevantfactsregardingtheproposedtransaction.

Exempted Transactions Subject to Certain Conditions

According to sub-section (3) of section 185, theprovisionsrelatingtotherestrictionsorpermissionsas discussed above are not applicable to atransaction relating to loans etc. in the followingsituations.

Giving of any loan to a managing or whole-timedirector. This exemption would be available onlyifmakingof theloan(i) isapartof theconditionsof service extended by the company to all itsemployees; or (ii) the scheme of loan has beenapprovedbythemembersbyaspecialresolution.

Providing loansorgivingguaranteesorsecuritiesfor the due repayment of any loan is an activityperformedby thecompany in theordinarycourseof its business. However to avail this exemption,company has to make sure that an interest ischargedataratenotlessthantherateofprevailingyield of one year, three years, five years or tenyearsGovernmentsecurityclosest to the tenorofthe loan.

Loan made by a holding company to its wholly

ownedsubsidiarycompanyoranyguaranteegivenorsecurityprovidedbyaholdingcompanyinrespectof any loanmade to its wholly owned subsidiarycompany.Thisexemptionwouldbeavailableonlyiftheloansareutilisedbythesubsidiarycompanyforitsprincipalbusinessactivities.

Any guarantee given or security provided by aholding company in respect of loan made byany bank or financial institution to its subsidiarycompany.Thisexemptionwouldalsobeavailableonly if the loans are utilised by the subsidiarycompanyforitsprincipalbusinessactivities.

Fine for Contravention

Sub-section(4)ofsection185providesforbiggerfinesincaseanyloanisadvancedoraguaranteeor security is given or provided or utilised incontraventionoftheprovisionsofsection185.Thesaidprovisionsareasunder:

Thecompanyshallbepunishablewithfinewhichshall not be less thanRs.5 lakhs but whichmayextendtoRs.25lakh.

Everyofficerofthecompanywhoisindefaultshallbepunishablewithimprisonmentforatermwhichmayextendto6monthsorwithfinewhichshallnotbe less thanRs.5 lakhbutwhichmayextend toRs.25lakh.

The director or the other person to whom anyloanisadvancedorguaranteeorsecurityisgivenor provided in connectionwith any loan taken byhimor theotherperson,shallbepunishablewithimprisonment which may extend to 6 months orwithfinewhichshallnotbelessthanRs.5lakhsbutwhichmayextendtoRs.25lakh,orwithboth.

Conclusion

Removalofdifficultiesbyrelaxationinlinewiththerequest from the corporate sector can be termedasamajor step towardseaseof doingbusiness.Whereas the safeguards introduced through the amendment would ensure proper corporategovernance, the tough penal provisions woulddeterthedirectorsfromcontraveningtheapplicableprovisions.

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Loans to Directors and etc. : A Simplified Process under Company Act, 2013


Contributed by Brahma Kumaris, Om Shanti Retreat Centre, Gurugram

Enhancing Your Inner Powers

We all possesses various inner powers, which not only help us in our adverse times, but is also a great tool to be used for our best on day to day basis. Aligning this, the article talks about unleashing the potential of inner powers.

Source of Energy Power

Long ago, humans had powers that today weconsider extraordinary. Our ancestors were abletoconnectbetterwitheachother,dealbetterwithrelationships beyond the physical proximity,moreselfconfidentandhappier.Whatwastheirsecret?Itisjustenergy!Astheysay,lifewasmuchsimplerwhen ‘Apples’ and ‘BlackBerries’ were just fruits.However, the good news is – there is still thatsourceofenergypowerinsideyou–it’sjustwaitingtobeawakened!

Weallpossessvariousinnerpowers,buttheyareoftenina dormant state. In order to awaken these inner powersand start using them, the awareness that we havethemandhow touse them,is required.Theseare skillswe need for living a better,happier,andmoresuccessful life.The fact is thatyou can achieve anything youwant! However, todothesameyouneedtodevelopandmaintainthatmind frame.

It’s human nature to start having doubts whenthingsdon’tgoourway.Allyourexperiencesandqualifications didn’t amount to much anymore.Negativitydoessetsin,andyouarefilledwithfear,self-doubt, your confidence was at its lowest butthiscanchange!

You may be more powerful than you realize.Therearecertainpowerswithinyou.When thesepowers are understood and leveraged properly,you will actually achieve more in life; be it more

wealth,harmony inrelationships, tostayhealthierand to heal a strained relationship. We all havethesepowersbut our inner potential to use themaccordingtosituationsisdifferent.However,attheoutset it is necessary to know the powers beforedevelopingthecapacitytousethem.

Power to Tolerate

It is the ability torespondtobothexternaland internal eventspositively, yet not beaffected by them. It isonlypossiblewhenyouare in charge of your real ‘self’. What wecan give to someone,iswhatwe have insideof us. So are our responses which is basedon what we have inside. So when someoneis rudeorangry;s/he isactingwithwhat theyhave inside and if we respond similarly, weare either affected by their emotions or evenwehavenegativeemotionswithinus.However,if we can augment our ‘power to tolerate’ wewill understand the other person’s vacuum andrespond with what they truly need. Most oftenthishigherenergyusuallynegatesorneutralizesthenegativeemotionsof theotherperson.Justto mention, ‘power to tolerate’ does not makeyousubmissiveandshouldnotbeconfusedwithnot-to-speak-up when needed. It is based onsituationsandyourabilitiestodecidethesame.


Power to Discern

In today’s world we aremore confused to takedecisionaswearenotsureof consequences. Decisionmaking has become acrucialpartofourlifebothinfamilies and organizations.With a plethora of options available to us, we remain

moreundecided.However,with theawarenessoftrueself,wecandeveloptheabilitytodiscerntheright course of action, and separate what is truefromwhat is false. It is necessary for us to stayintrovert and accumulate the power of silence todeveloptheclearvisioninside.

Power to Judge

It is the ability to assessthe quality of choices,decisions and actions to be made by yourself andothers.Tobeable to judgemeanstoacquirethepowerto differentiate betweenwhat is ‘right’ and what is‘wrong’, what is ‘good’ andwhat is not. It is the power to know – an aspectof being knowledgeable where you potentiallyknowabout thechoices that youaremakingandthe consequences of it. You have the ability tounderstandasituationbeforehandandtakeproperdecision.Decisionmakingbecomeseasyoncethesituation properly discriminated and separated the pearls and stones.

Power to Accommodate

We all know it is good topractice the age old saying of ‘forgiveandforget.’Eventhough we know this, mostoftenwefailtodothis.Inthisprocess we hurt ourselvesthe most. Keeping in mindthe positives and not holdonto the pain or any one’s

mistake will actually free us from the suffering.Bearinggrudgesaffectusmorethanthepersonforwhomwehavethegrudges.So,whenyoulearntoaccommodateyoumakewayforpositiveemotionsandyouaretheonewhoishappy.It istheabilityto expand and accept the presence, ideas andemotions of others.

Power to Face

Sometimeswedonotwantto face certain situations in lifebuttheyareinevitable;forexample death to our nearand dear ones or failures or a broken relationship.We need power to acceptthese. We need courage to face those hard truths in our

life.Thispowerkeepsusrelativelystabletobeabletomoveforwardinlife.It istheabilitytofaceandresolveexternal and internal obstacles, testsandchallenges.

Power to Pack Up

Thisisveryimportantwherewelearnnottoponderoversomething that has already happened. Putting a fullstop to past happenings, as in no way can we changethat?Also,discussingitwithothers heightens negativity.So, over-thinking in realityisdrainingouremotionsandenergies.Packingupmeanssimplytostopthinkingaboutitandtomoveon.

Power to Cooperate

Intoday’sworldofstiffneckcompetitionanddemandswegetdisturbedifapersondonot meet our expectations.We somewhere rejectthe person if we see theirweakness. This powerhelps us to accept the other person’s weakness and



supportthemthroughthat.Insteadofrejections,wecanlendthemahelpinghandorahandofkindnessto support them. The more we accommodatepeople,themorewecooperatewiththem;lifewillgive itback tous in return. It is theability togivetime,attentionandshareexperienceintheserviceofothersandtoworkalongsidethem.

Power to Withdraw

Just like a tortoise whowithdrawsitsorganundertheshell, we can withdraw oursenses from the materialistic worldandsituateourselvesinsoulconsciousnesstoo.Thiswillgiveuspowertoperformmoreandwewill beable toconnectwithourinnerpowers

and virtues. This is also known as detachment; tobreak away from your temporary role and connectwith the real self and the Supreme energy. Thisactuallyempowersyoutoachievemoreandtakecareofresponsibilitiesbetter.

Meditation

Meditationcanbeoneofthebest ways to invest whichhelps you to introspect, connect with your innerbeinganddrawenergyfromtheSupremesource.Thisinturnactivatesyourdormantinner energies in the form of powers.Youcannotalwayschange situations. You can never change otherpeople.Theonlythingyoucanchangeisyourself.The eight powers of Raja Yoga meditation arealwaysavailabletohelpyouineverysituationthatyouwillfaceinlife.

Theinnerpowersnotonlyhelpyouintimesinadversitybutcanbea tool thatyoucanuseonaneverydaybasis. Strengthening powers through meditationcan improve the power of concentration, willpower,self-confidenceandmotivation.Spend ten tofifteenminuteseachdaygivingyourselfpositiveaffirmationsorremindingyourselfofyourinnerpowers.Thiswillcleartheinnerchannelsofyourenergyandyouwill

beabletobetteraccessyoursubconscious.Thereinlies all your powers; the more you can clear yoursubconsciousyouwillfindyourselfmorestable,morepowerfulandmorepositive.

Meditationdoes the requisite self-work to resolveissuesthatmaybedisruptingtheflowofenergyinyourfield.Meditationexpandsyourconsciousness,journaling toget in touchwith youremotionsandrelease past emotional traumas, and heal you in ordertoclearyourenergyblockagesandyoureacha higher state of consciousness.

Remain Positive

Beingpositiveandhavingthatpositivemindframewinshalfthebattle.Apersonwhothinkspositivethoughtswillbehappier,morecontent,healthier,achievemoreandbelievetheycandoalmostanything.Yourmindisverypowerful.Thepopularsaying“ifyoucanthinkit,youcanachieveit”isverytrue.Itstartsinyourmindandonceyoudecidethat’swhatyouwantnothingintheworldcanstopyoubutyou.Ifyouexpecttogetthebestoutof life, thenyouwill if youdonotquit.Evenwhenyouhavedifficulttimes,youwillcontinuetobepositiveandseethebrightsideofthings.Youhave trained your mind to be positive, and it willalwaysfeedyoupositiveinformation.Whatyouputinyourmindiswhatyouwillgetout.Yourbrainissimilartoacomputer.Ifyouinputpositivethings,youwillinturngetpositive informationandsolutions. Ifontheotherhandifyouinputnegativethingsyoualsogetnegativeresults.

Positive Thinking is a Choice

You choose to be positive, or you choose to benegative. No one is naturally positive or negative.People wake up every day and decide what daytheyaregoingtohave.Somewilllookatthedayanddecidethattodaywillbethebestdayoftheirlives,andnothingcanchange that. Itdoesn’tmatterwhat theweatherislikeorwhatdemandspeoplearemaking.Whilesomeoneelsewillwakeup, it rainsand theirentiredayisruined.Itishowyouwantittobe.Youarein control of your life and no one else.

Whenyouarepositivewithapositiveattitudeyoumind is clearer, and you can thinkof solutions toproblemsandfindsolutionsthatyouwouldn’thavewhilebeingnegative.Youcannothaveanegative



mindset and expect to be able to come up withpositivesolutions.Itdoesn’tworkthatway.

Although this universal law works for all people,regardless of whether they are conscious of it,there are three important ways in which to tapinto the powers and start using them to bringaboutpositivechangestoyourlife.Ourinnersub-conscious thoughts and projections shape ouroutwardrealities.Meditation,visualizationandthewayinwhichweliveareimportanttoolsinreleasingthepoweroftheLawofAttraction.Startchangingyour perceptions, fine-tune your vibrations andenergy,andstart livingthefulfilling,abundantandmeaningfullifethatyoudeserve.

Conclusion

As we talked about the inner powers, themechanisms to develop them and the potentialof the subconscious, we can see that all routesconvergetothetheoryof‘TheLawofAttraction.’Itsimply means that you attract to you the things that youthinkaboutwith themost focusand intensity.Thisisequallytruefornegativeaspectsaswellaspositiveones; likeattracts like, regardlessofhowdesirableornotthesethingsare.

Many people are starting to use the power ofthe Law ofAttraction to bring about positive andbeneficialchangesintheirlives,focusingonareasranging from relationships to careers, finances tohealthtoacademicachievement.

TheLawofAttractionisnotaquick-fixsolutiontoyourperceivedproblems,butinvolvesatotalchangeinthewaythatyouthinkandactinordertocraftadifferentfutureforyourselfandthisisonlypossiblewhenyouharnessthepotentialofthesubconscious.Changingtheway that you think also involves changingwhoyouare.Howyou feelabout yourselfgovernsyourintentionsandexpectations,whichinturnshapeyourrealityandwhatyoureceive.

Living a happy, content existence, acting withgoodnessandkindness,andtreatingthosearoundyou with respect is vital for using the Law ofAttractiontoyouradvantage.Ifyouaredissatisfied,unhappy,jealous,cruel,fearful,orhaveatendencyto display other negative qualities, these are thesamethingsthatyouwillattractbacktoyou.Ifyouthinkthatyourlifeislacking,itwillbe.Ifyoufeelthatyourlifeisrichandenjoyable,sotoitwillbe.

However,tomakelifehappy,healthyandwealthy(as simple as it may sound here) we have toleverageourinnerpowerswhichwillbringoutourpotentials to the best of their abilities. Our innersub-consciousthoughtsandprojectionsshapeouroutwardrealities.

Although this universal law works for all people,regardlessofwhethertheyareconsciousofit,thereare importantways inwhichyoucan tap into thepowersandstartusingthemtobringaboutpositivechanges to your life.

As I talk about unleashing the potential of innerpowers, let me remindmyself and the readers averyfavouritequoteinthewordsofRumi,“Donotfeellonely;theentireuniverseisinsideyou.”

nnn


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KNOWLEDGE UPDATE

COMPANY LAW

Designation of Special Court

TheCentralGovernmenthasappointed‘AdditionalDistrict and Sessions court -VII, Ernakulam forState of Kerala, District and Sessions Court,Kavaratti for Union territory of Lakshadweep,District and Sessions Judge, Cuttack for Stateof Odisha andAdditional District and SessionsJudge, No.1, Kamrup (M), Guwahati for StateofAssam’as thespecial court for thepurposesof speedy trial of offences punishable withimprisonmentoftwoyearsormorevideS.O.528(E)dated5thFebruary2018.

Companies (Audit and Auditors) Rules, 2018

The Central Government, vide G.S.R (E) dated16thFebruary,2018,hasamendedtheCompanies(Audit and Auditors) Rules, 2014 by substitutingFormsADT-1 andADT-2 with new FormsADT-1andADT-2.

Companies (Management and Administration) Amendment Rules, 2018

The Central Government, vide G.S.R (E) dated16thFebruary,2018,hasamendedtheCompanies(Management and Administration) AmendmentRules, 2014 by substituting Forms MGT-6 andFormNo,MGT-15withnewMGT-6andFormNo,MGT-15.

Companies (Authorised to Register) Amendment Rules, 2018

The Central Government, vide G.S.R (E)dated 16th February, 2018, has amended theCompanies(AuthorisedtoRegister)Amendment

Rules, 2014 by substituting Form URC-1 withnewFormURC-1.

Companies (Registered Valuers and Valuation) Amendment Rules, 2018

The Central Government, vide G.S.R (E) dated9th February, 2018 has amended rule 11 of theCompanies (Registered Valuers and Valuation)Rules,2017,bysubstitutingforthefigures,lettersandword“31stMarch2018”occurringatboththeplaceswith“30thSeptember,2018”.

Companies (Amendment) Act, 2017

TheCentralGovernment, videS.O (E) dated 9thFebruary, 2017, has enforced the provisions ofsections 2 (except clause (i) and clause (xiii)]and section 3), 7, 9, 11, 12, 14, 17, 27 to 29(both inclusive), 32, 34, 35, 38, 41 to 45 (bothinclusive),47,48,50,51,53,59,60,63to65(bothinclusive),72to74(bothinclusive),77to79(bothinclusive),82,84,85,90 to93 (both inclusive)oftheCompanies(Amendment)Act,2017witheffectfrom9thFebruary,2018.

Companies (Removal of Difficulties) Order, 2018

The Central Government, vide Companies(Removal of Difficulties) Order, 2018 dated21st February, 2018, has amended section 169of theCompaniesAct, 2013, to provide that anindependent director re-appointed for secondtermundersub-section(10)ofsection149shallbe removed by the company only by passing aspecial resolution instead of ordinary resolution aftergivinghimareasonableopportunityofbeingheard.


RBI REGULATIONS/NOTIFICATIONS

Relief for MSME Borrowers Registered under Goods and Services Tax (GST)

The Reserve Bank of India, vide DBR.No.BP.BC.100/21.04.048/2017-18 dated 07th February,2018 has decided that exposure of banks andNBFCs to a borrower classified as micro, smallandmediumenterpriseundertheMicro,SmallandMedium Enterprises Development (MSMED)Act,2006,shallcontinuetobeclassifiedasastandardassetinthebooksofbanksandNBFCssubjecttothefollowingconditions:

l The borrower is registered under the GSTregimeasonJanuary31,2018.

l The aggregate exposure, including non-fundbased facilities, of banks andNBFCs, to theborrowerdoesnotexceed₹250millionasonJanuary31,2018.

l The borrower’s account was standard as onAugust31,2017.

l TheamountfromtheborroweroverdueasonSeptember 1, 2017 and payments from theborrowerduebetweenSeptember1,2017andJanuary31,2018arepaidnot laterthan180daysfromtheirrespectiveoriginalduedates.

l Aprovisionof5%shallbemadebythebanks/NBFCs against the exposures not classifiedasNPAintermsofthiscircular.Theprovisioninrespectoftheaccountmaybereversedasandwhennoamount is overduebeyond the90/120-daynorm,asthecasemaybe.

l The additional time is being provided for thepurpose of asset classification only and notfor income recognition, i.e., if the interest from theborrowerisoverdueformorethan90/120days, the same shall not be recognised onaccrualbasis.

INSOLVENCY LAW

Insolvency and Bankruptcy Board of India (Fast Track Insolvency Resolution Process for Corporate Persons) (Amendment) Regulations, 2018

The Insolvency and Bankruptcy Board of India(IBBI)hasamendedtheInsolvencyandBankruptcyBoard of India (Fast Track InsolvencyResolutionProcessforCorporatePersons)Regulations,2017.Keyamendmentsareasfollows:

Term “evaluation matrix” has been defined – “Evaluation matrix” means such parametersto be applied and the manner of applying suchparameters, as approved by the committee, forconsiderationofresolutionplansforitsapproval.

Term “fair value” has been defined-“fairvalue”meanstheestimatedrealizablevalueoftheassetsofthecorporatedebtor,iftheyweretobeexchangedontheinsolvencycommencementdatebetweenawillingbuyerandawillingsellerinanarm’slengthtransaction,afterpropermarketingandwhere theparties had acted knowledgeably, prudently andwithoutcompulsion.

Definition of term “liquidation value” has been amended – “Liquidation value” means theestimated realizable value of the assets of thecorporatedebtor,ifthecorporatedebtorweretobeliquidatedontheinsolvencycommencementdate.

Registered valuers–Theresolutionprofessionalshall appoint registered valuers to determine thefairvalueandtheliquidationvalueofthecorporatedebtor. After the receipt of resolution plans, theresolution professional shall provide the fairvalue and the liquidation value to each memberof the committee of creditors in electronic form, on receiving a confidentiality undertaking. Theresolutionprofessionalandregisteredvaluersshallmaintain confidentiality of the fair value and theliquidationvalue.

Information memorandum – The resolutionprofessional shall submit the informationmemorandum in electronic form to eachmemberof thecommitteeof creditorswithin twoweeksofhis appointment as resolution professional and to eachprospectiveresolutionapplicantlatestbythedate of invitation of resolution plan, on receivingconfidentialityundertaking.

Invitation to resolution applicant–Theresolutionprofessionalshallissueaninvitation,includingtheevaluation matrix, to the prospective resolution

Knowledge Update


applicants. He may modify the invitation as wellastheevaluationmatrix.However,theprospectiveresolution applicant shall get at least 15 daysfromtheissueofinvitationormodificationthereof,whichever is later, to submit resolution plans.Similarly,hewillgetatleast8daysfromtheissueofevaluationmatrixormodificationthereof,whicheveris later, to submit resolution plans. An abridgedinvitationshallbeavailableonthewebsite,ifany,ofthecorporatedebtor,andonthewebsite,ifany,designatedbytheIBBIforthepurpose.

Liquidation value – While the resolution applicant shall continue to specify the sources of funds that will beused topay insolvency resolutionprocesscosts,liquidationvalueduetooperationalcreditorsand liquidation value due to dissenting financialcreditors, the committee of creditors shall specify the amounts payable from resources under theresolution plan for these purposes.

Resolution plan–Aresolutionplanshallprovideforthemeasures,asmaybenecessary,forinsolvencyresolutionofthecorporatedebtorformaximizationofvalueofitsassets.Thesemayincludereductionin theamountpayable to the creditors, extensionof a maturity date or a change in interest rate or othertermsofadebtduefromthecorporatedebtor,change inportfolioofgoodsorservicesproducedorrenderedbythecorporatedebtor,andchangeintechnologyusedbythecorporatedebtor.

Resolution Professional – The resolutionprofessional shall submit the resolution planapproved by the committee of creditors to theAdjudicatingAuthority,at least15daysbeforetheexpiry of the maximum period permitted for thecompletion of the fast track corporate insolvencyresolution process.

Insolvency Professional to use Registration Number and Registered Address in all his Communication

Insolvency and Bankruptcy Board of India, videCircularNo.IP/001/2018dated3rdJanuary,2018hasdirected that the InsolvencyProfessionals, inall his communications whether by way of publicannouncement or otherwise to a stakeholder orauthority,shallprominentlystatethefollowing:

l Hisname,addressandemailasregisteredwithIBBI

l His registration Number as an insolvencyprofessionalgrantedbytheIBBI

l Capacityinwhichheiscommunicating

Relaxation in the Provisions Relating to Levy of Minimum Alternate Tax (MAT) in the case of Companies against which Application for Corporate Insolvency Resolution Professional has been Admitted under the Insolvency and Bankruptcy Code, 2016

With a view to minimise the genuine hardshipin relation to restriction in allowance of broughtforward loss for computation of book profit undersection115JB,facedbycompaniesagainstwhoman application for corporate insolvency resolutionprocess has been admitted by the AdjudicatingAuthorityundersection7orsection9orsection10of theCode theMinistryofFinance,hasdecidedthat with effect from assessment year 2018-19(i.e. financial year 2017-18) the amount of totalloss brought forward (including unabsorbeddepreciation)shallbeallowedtobereducedfromthe book profit for the purposes of levy of MATundersection115JBoftheAct.

Disclosures by Insolvency Professionals and Other Professionals Appointed by Insolvency Professionals Conducting Resolution Processes

Insolvency and Bankruptcy Board of India, videCircularNo.IP/005/2018dated16thJanuary,2018,inordertoprovidetransparencyhasmandatedtheInsolvencyProfessionalforfollowingdisclosures:

l Relationship with corporate debtor, otherprofessional engaged by him, financialcreditor(s),interimfinanceprovider(s)andprospective resolution applicant (s) to theinsolvencyprofessionalagencyofwhichheisamember,withinthetimespecified.

l Relationship, if any, of other professionalengagedbyhimwithhimself,thecorporatedebtor financial creditor, interim finance provider, and prospective resolution

Knowledge Update


applicant (s) to the insolvencyprofessionalagencyofwhichheisamember,withinthetime specified. The nature of relationshiphasbeenprovidedinthecircular.

Fees Payable to an Insolvency Professional and to Other Professionals Appointed by an Insolvency Professional

Insolvency and Bankruptcy Board of India, videCircularNo.IP/004/2018dated16thJanuary,2018,has clarified that an insolvency professional shallrender services for a fee which is a reasonablereflection of his work, raise bills / invoices in hisname towards such fees, and such fees shall bepaidtohisbankaccount.Anypaymentoffeesforthe services of an insolvency professional to anypersonotherthantheinsolvencyprofessionalshallnot formpartof the insolvencyresolutionprocesscost.

SEBI LAW

Securities and Exchange Board of India (Issue of Capital and Disclosure Requirements) (Amendment) Regulations, 2018

SEBI,videNo.SEBI/LAD-NRO/GN/2018/01dated12th February, 2017 has amended theSecuritiesandExchangeBoardofIndia(IssueofCapitalandDisclosure Requirements) Regulations, 2009 byomittingclause(c)inregulation82.

Electronic Book Mechanism for Issuance of Securities on Private Placement Basis

Securities and Exchange Board of India, videNotification No. SEBI/HO/DDHS/CIR/P/2018/05dated 5th January, 2018, has further streamlinedtheprocessofprivateplacementofdebtsecurities,allowed private placement of other classes ofsecuritieswhichareinthenatureofdebtsecuritiesand enhanced transparency in the issuance so thatthereisbetterdiscoveryofprice.TherevisedguidelinescanbereferredtoinSchedule-Atothecircular.

Online filing System for Offer Documents, Schemes of Arrangement, Takeovers and Buy Backs

SecuritiesandExchangeBoardofIndia,videcircularnumber SEBI/HO/CFD/DIL1/CIR/P/2018/011dated 19th January, 2018, in order to ease theoperations under SEBI (Issue of Capital andDisclosureRequirements)Regulations,2009,SEBI(ListingObligationsandDisclosureRequirements)Regulations, 2015, SEBI (Substantial Acquisitionof Shares andTakeovers)Regulations, 2011 andSEBI (BuyBack of Securities)Regulations, 1998and various circulars issued thereunder, hasintroduced an online system for filings related topublicissues,rightsissues,institutionalplacementprogramme, schemes of arrangement, takeoversand buy backs. SEBI Intermediary portal isavailableathttps://siportal.sebi.gov.in.ThelinkforSEBIintermediaryportalisalsoavailableonSEBIwebsite–www.sebi.gov.in.Itshallbeusedbythemerchantbankersandrecognizedstockexchangesforfilingpurposes.

CASE LAW

Rectification of Name of Company

A registered proprietor of a trade mark could make an application within a period of five years of becoming aware of registration of a company with a similar name.

Itisimplicitintheprovisotosub-section(1)ofsection22thataregisteredproprietorofatrademarkcouldmakeanapplicationwithinaperiodoffiveyearsofbecomingawareofregistrationofacompanywithasimilarname.TheRegionalDirector could thusactona representationevenafter twelvemonthshad elapsed from the registration of the company with the undesirable name – Mondelez Foods (P.) Ltd. v. Regional Director (North), Ministry of Corporate Affairs, [WP(C) No.5289/2014 and CM No. 10518/2014, dated 7th July 2017 (Del.)]

Oppression

Where petitioners, having knowledge of the extraordinary general meeting being held,

Knowledge Update


choose not to attend the meeting, there is no act of oppression of the petitioner.

Where the Tribunal, taking into consideration theevidenceon record, rightlyheld thatnoticeof theextraordinary general meeting in question wasservedon thepetitioner,and theydidnotchooseto participate in the saidmeeting, it could not besaid that there was oppression of petitioners onthe part of the respondents – Den Nasik City Cable Network (P.) Ltd. v. Milind Dayaram Kapse [CA (AT) No. 58 of 2017/CA (AT) No. 130 of 2017 dated 23rd August, 2017 (NCLAT)]

Number of Members of Private Company

In computing number of members of private limited company, joint shareholding of members, and shareholding of employees or transfer of shares by employees in favour of their family members or otherwise will have to be excluded.

Where for purposes of definition of ‘privatelimited company’ number of members of thecompany is required to be computed, whiledoing so joint shareholding of members, andshareholding of employees or transfer of shares by those employees in favour of theirfamily members or otherwise will have tobe excluded under sub-clause (b) of clause(iii) of sub-section (1) of section 3 read withproviso-Darius Rutton Kavasmaneck v.Gharda Chemicals Ltd. [CA No. 24 of 2010 & CP Nos. 132/397-398/CLB/MB/2009 dated 4th August 2017 (Bom.)]

Compromise or Arrangement

Compromise or arrangement does not fall within article 20(d) of Schedule IA of the Stamp Act attracting stamp duty.

Inviewofclearlanguageemployedinarticle20(d)ofScheduleoftheStampActandsub-section(1)ofsection394,unlikeamalgamationandmerger,compromiseorarrangementdoesnot fallwithinthatarticleattractingstampduty.Therefore,orderof the Registrar of Assurance directing petitioncompany to pay requisite stamp duty is liableto be set asidebeingbeyondhis power –GVK

Power & Infrastructure Ltd. v. District Registrar of Assurances, Red Hills [WP No. 5399 of 2008 dated 6th July 2017 (T&AP)]

Triggering Insolvency Code

The mandatory condition for triggering the Insolvency Code is clear from a conjoint reading of sections 8 and 9. The application must have a copy of the invoice/demand notice attached to it.

Sub-section(1)ofsection9containstheconditionsprecedent for triggering the Code insofar as an operational creditor is concerned. The requisiteelements necessary to trigger the Code are (i)occurrence of a default; (ii) delivery of demandnotice of an unpaid operational debt or invoicedemanding payment of the amount involved ;and (iii) the fact that operational creditor has notreceivedpaymentfromthecorporatedebtorwithina period of 10 days of receipt of the demand notice orcopyofinvoicedemandingpayment,orreceiveda reply from thecorporatedebtorwhichdoesnotindicate the existence of a pre-existing disputeor repayment of the unpaid operational debt. –Macquarie Bank Ltd. v. Shilpi Cable Technologies Ltd. [CA Nos.15135, 15481 & 15447 of 2017 dated 15th December 2017 (SC)]

Applicability of Securitisation Act

Securitisation Act shall apply to all existing agreements even though lender was not a notified ‘financial institution’ on date of execution of borrowing agreement and was notified subsequently.

Securitisationproceedingsandarbitrationproceedingscangohandinhand.Wherelenderisnota‘financialinstitution’ within the meaning sub-clause (iv) ofclause (m) of sub-section (1) of section 2, it couldinvoketheprovisionof theAct till itwasnotified,astherighttoproceedundertheActwouldaccrueoncethenotificationwasissued.Thedateonwhichadebtisdeclaredasnon-performingassetwouldhavenoimpactinthematter-M D Frozen Foods Exports (P.) Ltd. v. Hero Fincorp Ltd. [CA No. 15147 of 2017 dated 21st September 2017 (SC)].

Knowledge Update