Appellate Authority (NCLAT) set aside the order of NCLT dismissing application under Section 9 of the Insolvency and Bankruptcy Code, 2016 on the ground of claim barred by limitation and existence of dispute.

M/s Gupshup Technology India Pvt. Ltd. (Operational Creditor) filed application under Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as ‘I&B Code’) against ‘M/s Interpid Online Retail Pvt. Ltd.’ (‘Corporate Debtor’) which having rejected by Adjudicating Authority (National Company Law Tribunal), Bengaluru Bench, Bengaluru by order dated 8th November, 2018, the present appeal has been preferred by the Appellant.

The Adjudicating Authority held that the claim is barred by limitation and there is existence of dispute.

Appellant states that the record of the services carried out as on 5th September, 2017 shows that the Respondent availed the services through the SMS Dashboard and had its own dedicated user name and password for logging. However, the Respondent in their email dated 5th September, 2017 sought details of email logs and other supporting documents in order to verify the invoices. 7. The Appellant issued a Demand Notice under Section 8(1) on 24th October, 2017 and for the first time the Respondent in its reply under Section 8(2) by intimation dated 3rd November, 2017 raised false and frivolous allegations After completion of more than 10 days, the Appellant filed an application under Section 9.

On notice, the Respondent has appeared and filed reply affidavit. But learned Counsel for the Respondent failed to produce before the Appellate Tribunal any letter or email to suggest that a dispute was raised about the SMS services prior to the issue of Demand Notice dated 24th October, 2017.

Therefore it is held by the Appellate Authority t that the Respondent has not disputed that the Appellant has provided text SMS services to the Respondent through internet. The Respondent has availed the services pursuant to the contract in question from time to time till the Appellant terminated the services.

By referring to the decision of the Hon’ble Supreme Cour in the matter “Innoventive Industries Ltd. Vs. ICICI Bank and Ors. – (2018) 1 SCC 407”, it is clear that Section 3(6) defines “claim” to mean a right to payment even if it is disputed. The Code gets triggered the moment default of Rs.1 lakh or more (Section 4) occurs.

So far as limitation is concerned, for filing an application under Section 9, Article 137 of Part II of Third Division of Limitation Act, 1963 is applicable, which reads as follows: - 

PART II – OTHER APPLICATIONS 

Description of application

Period of limitation

Time for which period being to run

137. Any other application for which no period of limitation is provided elsewhere in this division.

Three years Where the right to apply accrues From the aforesaid provision of the Limitation Act, it is clear that the application is maintainable within three years from the date when the right to apply accrues. Since, the Insolvency and Bankruptcy Code, 2016 has come into effect since 1st December, 2016, Appellate Authority  hold that the application is not barred by limitation.

Therefore Appellate Authority set aside the impugned order dated 8th November, 2018 and remit the case to the Adjudicating Authority for passing appropriate order taking into consideration the records submitted by the Appellant in the light of decision of Hon’ble Supreme Court in “Innoventive Industries Ltd. Vs. ICICI Bank and Ors.”, after notice and hearing the Respondent.

Latest Judgement : Bombay High Court : Writ Petition under Article 226 seeking the order of NCLT be quashed and set aside. HELD, not maintainable, Dismissed.

In the matter of Kotak Investment Advisors Limited and Anr. Vs. Mr. Krishna Chamadia, Resolution Professional of Ricoh India Limited and Ors. Writ Petition (L) No. 3621 of 2019  

1. Petitioner filled Writ Petition under Article 226 of the Constitution of India seeking the relief to issue writ of Certiorari, calling for Company Petition dated 28th November, 2019 hereto be quashed and set aside.

2. It is the case of the petitioner that it participated in Corporate Insolvency Resolution Process of respondent No.1 and submitted its Resolution Plan / Bid. The respondent No.1 accepted the bid of respondent No. 2 after the last date of submission. That was done after the bid of the petitioner was already opened. There is an illegality alleged in the acceptance of the bid of the second respondent. 

3. The petitioners state that their bid being the highest, it ought to have been accepted. However, the second highest bid was accepted by the Committee of Creditors. It is this gross illegal process adopted by the Resolution Professional which was challenged by the petitioner.

4. The Resolution Professional – respondent No.1 filed Application. That was accepted by the Tribunal and the Plan was sanctioned. The petitioners’ application has been rejected. 

5. Counsels on behalf of the Petitioner contended that :- they were not heard and objections raised by them were not taken into consideration by the members of the Bench. The petitioners say that they were not allowed to raise any objections as their Miscellaneous Application was already heard and the matter was closed for orders. Then, on 28th November, 2019, the Tribunal proceeded to pass the impugned order. 

6. Further it was contended that “The member (tribunal member) who has passed the order was not even a member of NCLT at the time the matter was heard and reserved for judgment,” said the company in its petition. “The process adopted by NCLT of hearing objections by a separate bench and plan by a separate bench itself was faulty. This entire process is absolutely illegal, and it shows how mechanically the matters are decided.”

7. Considering all this, it is noted that the Section 32 is vital for this purpose and it says that any appeal from an order approving the Resolution Plan shall be in the manner and on the grounds laid down in sub-section (3) of section 61. 

8. The Hon’ble High Court held that a writ petition would not be maintainable in this case and proceed to dismiss it on the ground that the petitioners have alternate and equally efficacious remedy of filing on Appeal to the National Company Law Appellate Tribunal and in that appeal, it can raise all grounds, including the one raised in the Memo of the present petition.

Latest Judgement: NCLAT : Order of AA initiating CIRP under Section 9 of I&B Code, 2016 set aside.

The promoter of the Corporate Debtor have preferred this appeal to set a side the impugned order of AA  impugned order dated 20th September, 2019 under Section 9 of the I&B code preferred by M/s Aanav Construction Co.

‘M/s Aanav Construction Co’. moved an application under Section 9 of the Insolvency and Bankruptcy Code, 2016 (for short the ‘I&B Code’), pursuant to which the Adjudicating Authority (National Company Law Tribunal), New Delhi Bench by impugned order dated 20th September, 2019 initiated ‘Corporate Insolvency Resolution Process’ against ‘Shri Balaji Infradevelopers Private Limited’.

However the Promoters/appellant  have settled the claim of all the 11 Claimants before the constitution of COC  and preferred this appeal .

Therefore this appellate tribunal held that as the Promoters have settled the claim of all the 11 Claimants and the ‘Committee of Creditors’ has not been constituted, Appellate Tribunal in  exercise of powers conferred by Rule 11 of the NCLAT Rules, 2016 set-aside the impugned order dated 20th September, 2019 and dispose of the application under Section 9 of the I&B code preferred by M/s Aanav Construction Co. as withdrawn.

Mandatory compliances of Private Limited Company

1. *Company Name Board-* Every Company shall paint or affix the name and address of registered office and keep the same painted/affixed, outside every office or place in which its business is carried on, in legible letters.

2. *Letter Head of Company-* Every Company shall get its name, address of registered office, CIN, telephone and email printed on all business letters, billheads, letter papers, notices and other official publications.

3. *First Board Meeting-* First Meeting of Board of Directors is required to be held within 30 days of Incorporation of Company. Notice of BM must be send to every director at least 7 days before the meeting.

4. *Subsequent Board Meetings-* Minimum 4 Board Meetings to be held every year with not more than 120 days gap between two meetings. In case of small company, it is sufficient to conduct only two Board Meetings.

5. *Issuing of Share Certificate -* Company is required to issue Share Certificates to the subscribers of memorandum within 60 days of Incorporation of Company.

6. *Filing of Disclosure of interest by Directors-* Every director at:
‐ First meeting in which he participates as director; or
‐ First meeting of Board in every FY; or
‐ Whenever there is change in disclosures

shall disclose in *Form MBP‐1* (along with list of relatives and concern of relatives in the Company as per RPT definition), his concern or interest in any company, body corporate, firm or other association of individuals (including shareholding interest).
Form *MBP‐1* shall be kept in the records of the company.

7. *Resident Director-* Every Company is required to appoint at least one Director who has stayed in India for a total period of not less than 182 days in the previous calendar year.

8. *Alteration in MOA and AOA-* Every alteration of Articles and Memorandum shall be filed with Registrar together with copy of altered Articles, notice of meeting and SR within 30 days of passing Special Resolution. Every alteration made in MOA and AOA shall be noted in every copy thereof.

9. *Registers-* Every Company shall keep and maintain following Registers in the specified format:

‐ Register of Members *MGT-1*
‐ Register of other Security Holders residing outside India *MGT-3*
– Register of Transfer and Transmission of Shares *SH-6*
– Register of Charge *CHG-7*
‐ Index of the Registers

10. *Other Registers-* Every Company shall keep at its Registered Office, a Register of Directors and KMP in the prescribed format containing prescribed particulars.

11. *Resolution-* Copy of every resolution (with explanatory statement, if any) or Agreement for the specified matters to be filed with ROC in *Form MGT‐14* within 30 days. Articles of Company shall have copy of resolution effecting amendment in AOA and Agreements referred in Section 117(3) of the Act.

12. *Minutes of Meeting-* Minutes of every general meeting, Creditors, Board and Committee shall be prepared and kept within 30 days of conclusion of every meeting concerned. All appointments in the meeting shall be included in the minutes. Minutes of each meeting shall be entered into Minutes Book along with date of such entry.

13. *Appointment of Director-* Every person to be appointed as Director shall provide his consent in *Form DIR‐2* and such consent shall be filed by the Company with ROC in *Form DIR‐12,* within 30 Days of appointment.

14. *Provisions related to DIN-* Every individual intending to be appointed as director shall make an electronic application in *Form DIR-3* to Central Government for allotment of DIN.

15. *Qualification of Director-* Declaration from Director at the time of appointment or reappointment in *Form DIR‐8* .Annual disclosure from Director to be taken.

16. *Number of Directorship-* No person shall be a director in more than 20 companies. Maximum number of public companies can be 10 (Director in Section-8 Co. and Dormant Director not to be included)

17. *Resignation by Director-*  Director shall intimate his resignation to the Company, which the Company shall file with ROC in *Form DIR‐12* in 30 days. Company shall put resignation details on its website and in its Directors’ Report.

18. *Return of Director and KMP-* Return of Directors and KMP to be filed with ROC in *Form DIR 12,* within 30 days of appointment or change.

19. *Meeting at shorter notice-* Meeting can be convened on a shorter notice for urgent matters. Consent from not less than 95% of members entitled to vote thereat.

20. *Quorum‐* Quorum shall be one‐third or two directors, whichever is higher. Directors participating through Video Conferencing shall be counted for the purpose of quorum.

21. *First Auditor-* First Auditor of the company shall be appointed by the BOD within 30 days of Incorporation who shall hold the office till the conclusion of 1st AGM. In case of First Auditor, filing of ADT-1 is not mandatory.

22. *Subsequent Auditor-* The BOD shall appoint the auditor in first AGM of company who shall hold the office till the conclusion of 6th AGM and shall inform the same to ROC by filing *ADT-1.* The responsibility to file Form ADT 1 is that of the company and not of the auditor within 15 days from the date of appointment.

23. *Ratification of Auditor-* Shareholders will ratify the appointment of Auditor in every AGM but there is no need to file ADT-1 for ratification.

24. *Casual Vacancy of Auditor-* If Casual Vacancy is arising due to the resignation of auditor, it shall be filled within 30 days of BOD meeting, subject to approval in General Meeting (AGM or EGM). Any auditor appointed in a Casual Vacancy shall hold office until the conclusion of the next Annual General Meeting.

25. *ADT-3-* The auditor shall file with the company a resignation letter stating the reason for resigning and file Form ADT-3 with the registrar within 30 days from the date of resignation. Filing form ADT-3 is the responsibility of the auditor and can only be filed if ADT-1 of the relevant auditor was filed.

26. *Annual General Meeting-* Every Company is required to hold an Annual General Meeting on or before 30th September every year during business hours (9 am to 6pm), on a day that is not a public holiday and either at the registered office of the Company or within the city, town or village where the registered office is situated. A 21 clear days’ notice is required to be given for the same.

27. *Filing of Financial Statements-* Every Company is required to file its Financial Statements within 30 days of its Annual General Meeting with Registrar of Company in *E-Form AOC-4.* The same shall be digitally signed by one director and certified by CA/CS/Cost Accountant in Practice.

28. *Filing of Annual Return-* Every company is required to file its Annual Return with Registrar of Companies within 60 days of Annual General Meeting in E-Form *MGT-7.* A company having turnover of INR 50 Crore or more shall be certified by a Practicing CS in Form *MGT-8.*

29. *Regularisation of Additional Director-* If company wants to appoint additional director as director, then it shall regularize the person as director in General Meeting by passing Shareholder Resolution. File form *DIR-12* for Change in Designation of Director along with ordinary resolution within 30 days of AGM.

30. *Directors’ Report-* Directors’ Report is to be filed within 30 days of AGM along with Form AOC-4. It should be signed by the “Chairperson” authorized by the Board, where he is not so authorized by at least 2 Directors.

31. *Filing of Financial Statements of a Foreign Co.* -Every Foreign Company is required to file Annual accounts (consolidated financial statements/ global accounts) along with the list of all principal places of business in India within 6 months of close of the Financial Year.

32. *Filing of Annual Return of a Foreign Co.-* Every foreign company shall prepare and file annual return of the company in e-Form FC-4 within 60 days from the close of financial year.

Facing Mental Harassment from Boss at Workplace

*Facing Mental Harassment from Boss at Workplace*

*Mental Harassment at workplace*
There are various categories that can be covered under the purview of harassment at workplace against the employees due to which the employees have to suffer humiliation & Mental Torture and are often exploited by their respective supervisors.

These are the key area of focus in this article. So far there are only some State laws which deal with bullying, however, there have been a persistent call for framing national law on bullying.

The most vulnerable to this plight are the subordinates in offices. This is a scenario in private as well as public sector. Most of the bullying is done by seniors, hierarchy plays a key role. To achieve targets supervisors have to force the employees to labor hard especially the young workers have to face most of the harassment due to higher expectations. Bullying and harassment at workplace lead to terrible effect on the health and well being and performance of the employees. In India, there is no special legislation against bullying at workplace.

*Non- Sexual Harassment* – Majority of the people believe in the common notion that harassment at workplace can be sexual only. But this is not the case in reality as the following different types can be categorized under types of Non-Sexual Harassment.

♡.Harassment on the basis of- Race, Sex, Religion and National Origin.

♡.Harassment on the basis of age.

♡.Harassment on the basis of disability.

♡.Defamation- To defame is to damage the reputation or image of the person

♡.Criminal History- An employee may be harassed for his previous criminal record, whose penalty he has already suffered.

♡.Citizenship Status- A person belonging to a different nationality may become subject to harassment.

♡.Racial Harassment- Discrimination on the basis of race.

♡.Harassment due to different Political Beliefs- Though minor issue but can lead to harassment of the employee by the employer or fellow employees.

♡.Sexual Orientation and Marital Status.

♡.Stalking.

Examples include leaving repeated or alarming messages on voice mail or e-mail, following people home, or approaching co-workers to ask for personal information.

♡.Hostile Workplace Harassment.

♡.Bullying by the supervisor.

*Laws against harassment*

Indian labour laws cover a large number of acts under its purview and since labour laws are covered under the concurrent list of the Seventh Schedule of the Constitution of India, so both central and state governments have jurisdiction to pass their own laws on relations between the labourers and relating to issues of the employment.

*1. HARASSMENT BY DEDUCTION OF UNREASONABLE WAGES BY EMPLOYER*

_Payment of Wages Act, 1936_  is intended to be a remedy against the unreasonable and unauthorized deductions made by the ‘Employer’ or unjustified delay in payment of wages.

Section 5 of the Act specifies the Time of payment of wages- Timely payment of wages should be made. If manpower is less than 1000, then 7th day of the month and if more than 1000, then 10th day of the month.

Section 7-13 defines the Deductions- No unreasonable and unauthorized deductions should be made from the wages.

*2. HARASSMENT BY SEX DISCRIMINATION*

Employees can be harassed by not following the Principle of Equal Pay for Equal Work. According to Article 39(d) of the Constitution and Section 2(h) of the Equal Remuneration Act 1976  it is the duty of the employer that every employee should receive same remuneration for similar nature of work.

*3. HARASSMENT BY DEFAMATION*

Section 499 of the IPC defines the Defamation if it is a Criminal Wrong. Otherwise in civil cases defamation can be included under the Law of Torts.

*4. HARASSMENT BY UNREASONABLE CLAUSES IN THE EMPLOYMENT AGREEMENTS*

Dismissal Regulation

Industrial Disputes Act 1947

Chapter 5A: LAY OFF AND RETRENCHMENT

This Chapter lays down that a 30 to 90-day notice period applies in order to terminate ‘workmen’ (as defined in the Industrial Disputes Act, 1947) – that is, employees whose role is not primarily supervisory, administrative or managerial) for convenience.

*5. DISCRIMINATION ON GROUNDS OF PREGNANCY AND DISABILITY*

According to Maternity Benefit Act, 1961 it is unlawful and unauthorized on the part of the lawyer to discharge or dismiss women when she absents herself from work within the provision of this act.

Section 24A of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 guarantees no discrimination in employment.

*10 signs that you’re being bullied at work*

Others in your work group are receiving preferential treatment top projects, travel perks and free time. Meanwhile, you find that most of your requests along the same lines are denied without reasonable explanation.

_Your progress goes unseen_

Say you’ve been given a directive with certain objectives, an ultimate goal and a deadline. You work hard and with focus only to find out, that suddenly there’s a change in direction on the project. Your progress is not celebrated or applied to the new project, but not even taken into account.

_All your decisions are question_

So you are constantly bombarded by excessive micro-managing? You don’t feel like your intuition or decisions are being trusted, and you can’t explain why.Your boss and others hover over you much more than telling you what to do (and what not to do). You get the sense that you are wrongly perceived as incompetent and your decision-making capability is greatly reduced as a result.

_You are socially alienated_

All of a sudden, you’re excluded from meetings you once attended. Your colleagues tend to discuss work prior to your arrival and you are left with absolutely no clue what to do. Besides, you are not marked on important mails. Co-workers tend to avoid you and keep interaction to a minimum. You may also find that you’re no longer invited to post work drinks with your teammates.

_You often feel targeted_

Often, when you make a comment, suggestion or disagree with someone’s opinion, you’re responded to with a plethora of responses by others. It doesn’t matter whether you’re right -the gang mentality is determined to prove you wrong.

_Your health is failing_

Mentally, you’re drained and your energy is zapped. You’re sleeping more and getting out of bed is a real task for you. Exercising and socialising with your folks is a chore. Bullying can lead to depression, anxiety, panic attacks and mood swings. There are physical symptoms such as increased blood pressure, rapid heart beat, and loss of appetite (or excessive eating).

_Have experienced verbal spat_

You’re subjected to negative, abusive language -reprimanded often in front of the entire office. Verbal abuse can also be more subtle than loud insults.You may find that you are being joked around with in a way that makes you feel uncomfortable and small, and that too can be verbal bullying.

_Your work is publicly diminished_

Your dedication to your job is not acknowledged by your boss or they give credit to others (for your hard work) in a public setting such as a meeting.

_Face unnecessary criticism_

It seems that in the eyes of your boss, you are ineffective and unprofessional. Feedback is always provided in the form of criticism and delivered in a way to make you feel awful about yourself. There’s no effort to provide guidance.

_Presented unreasonable obstacles_

So does the boss man purposely throw roadblocks in front of you to prevent you from successfully completing a project? Now, this is a major act of bullying.

*How To Deal With Bullies At Office*

Record everything in a journal. Learn about your company policies regarding bullying and prepare to take action. 

Have a backup plan in place. You may even want to look for another job, because when you have the security of a backup job, you feel more empowered to face the situation.

When you discuss the issue with senior management, provide ample evidence. Be prepared for the eventuality that you may have to quit.

Dealing with bullies at office can be tough. Limit the damage as early as you can, and get out of the company if they are unable to protect their employees.

*CONCLUSION*

Thus we see that Indian Labour Laws not only takes Sexual Harassment At Workplace into consideration  but also all other types of harassment that can happen at the workplace as stated above. Certain acts have been laid down by the government governing every issue to protect the interest of the employees and workmen in almost every sector of the industry.

Still, in India a worker can seek redressal under different provisions provided under the constitution of India, IPC, and C.P.C. The Indian Constitution under various articles provides labor rights. Though not in evident form but indirectly various articles protect the labour rights. For instance, Article 14 of the Indian Constitution lays down the concept of Equality before law. In the case of Mewa Ram v. A.I.I. Medical Science , the Supreme Court, held that.

“the doctrine of ‘equal pay for equal work’ is not an abstract doctrine. Equality must be among equals, unequal people cannot claim equality.”

Indian constitution through various articles21, 23, 24, 38, 39, 39-A, 41, 42, 43, 43-A and 47 provides an idea of what conditions should be provided by the employers.However, some of these articles do not have binding effect which at instances hinders justice. Part 4 of the constitution talks about the duty of the state to promote social welfare and to make effective provisions for securing the right to work, providing education and public assistance in cases of employment, etc., which is subject to limits of its economic capacity, to make special provisions for just and humane condition of work and for maternity relief, etc.

In the case of Consumer Education and Research Centre v. Union of India.

“Right to life includes protection of the health and strength of the worker is a minimum requirement to enable a person to live with human dignity. The right to human dignity, development of personality, social protection, right to rest and leisure are fundamental human rights to a workman assured by the Charter of Human Rights, in the Preamble and Arts.38 and 39 of the Constitution.”