DMD Advocates' Newsletter - March 2019

Author:Ms Anuradha Dutt, Fereshte D. Sethna, Vijaylakshmi Menon and Rashi Dhir

It gives us immense pleasure to circulate the third edition of DMD Advocates' Newsletter.

In this edition, we have covered recent and relevant judgements/ orders of the Supreme Court of India, the National Company Law Appellate Tribunal (NCLAT) and National Company Law Tribunals (NCLTs) and some relevant legal updates.

We hope you enjoy reading this edition and find it useful in your area of work.


Maintainability of the execution case to be considered along with the issue of enforceability of the subject foreign award(s): Supreme Court

A two judge bench of the Supreme Court comprising Justice Ajay Rastogi and Justice A.M. Khanwilkar, upholding a judgement and orders passed by the High Court of Calcutta, has held that maintainability of execution case is intrinsically linked with the question of enforceability of respective foreign award(s) and cannot be considered in isolation and de hors the issue of enforceability of the subject foreign award(s).

The Court observed that "the scheme of Section 48 of the Arbitration and Conciliation Act, 1996 does not envisage piecemeal consideration of the issue of maintainability of the execution case concerning the foreign awards, in the first place; and then the issue of enforceability thereof. Whereas, keeping in mind the legislative intent of speedy disposal of arbitration proceedings and limited interference by the courts, the Court is expected to consider both these aspects simultaneously at the threshold. Taking any other view would result in encouraging successive and multiple round of proceedings for the execution of foreign awards. We cannot countenance such a situation keeping in mind the avowed object of the Arbitration and Conciliation Act, 1996 in particular, while dealing with the enforcement of foreign awards. For, the scope of interference has been consciously constricted by the legislature in relation to the execution of foreign awards. Therefore, the subject application filed by the petitioner deserves to be rejected, being barred by constructive res judicata, as has been justly observed by the High Court in the impugned judgement."

Click here to view the judgement dated 20 February 2019.

Inadvertent mistake in the plaint should be allowed to be corrected: Supreme Court

A two-judge bench of the Supreme Court, comprising Justice D. Y. Chandrachud and Justice Hemant Gupta, has set aside an order of the Hight Court of Delhi and allowed an application to amend the plaint filed by the Plaintiff.

Relying on the Supreme Court judgement in the case of Uday Shankar Triyar v. Ram Kalewar Prasad Singh and Another ((2006) 1 SCC 75), the Court observed that "procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure should never be made a tool to deny justice or perpetuate injustice by any oppressive or punitive use."

Click here to view the judgement dated 1 March 2019.

Section 9 application under Insolvency and Bankruptcy Code, 2016 (IBC) is not maintainable if parties settle the matter prior to constitution of Committee of Creditors: National Company Law Appellate Tribunal (NCLAT)

An NCLAT bench, comprising Justice S J Mukhopadhaya (Chairperson) and Justice Bansi Lal Bhat (Member (Judicial)), has...

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