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Specified Value

Section 2(i) of Act [1] explains the word ‘specified value’ with relation to commercial dispute as to the value of the subject-matter of a suit as determined in accordance with Section 12 of the said Act.

The amount for the subject matter of the suit must be equal to or more than Rs. 1 crore or any higher value which is notified by the Central Government.

The transactional disputes which qualify as a commercial dispute, are mentioned in the Act itself. [2] If the valuation of the subject matter in these commercial disputes is not less than Rs. 1 crore, this Court as the Commercial Division of the High Court would have jurisdiction. [3] Once a plaintiff seeks to bring a suit, which otherwise is below the minimum pecuniary jurisdiction of this Court for original civil disputes, he must establish that the suit arose out of a commercial dispute. [4]

Determination of Specified Value

According to Section 12 of the act, the Specified Value concerning the commercial dispute will be established in the following manner: [5]

i. When the relief prayed is for recovery of any money, the money which is sought to be recovered inclusive of any underlying interest shall be calculated up to the date of filing of such suit or application;

ii. When the relief prayed narrates to movable property or any right accruing therein, the market value of such movable property as on the date of filing.; [6]

iii. When the relief prayed is related to immovable property or any right accruing therein, the market value of the immovable property, as on the date of filing; [7]

iv. When the relief prayed relates to any intangible right [8], the market value of the rights that will be assessed by the plaintiff;

v. When the counterclaim is preferred, the total value of the subject-matter of the dispute in such a counterclaim as specified on the date of the counterclaim.

Introduction of Mandatory Pre-institution Mediation

(a) Scope and Extent

The Act [9] provides that the remedy of pre-institution mediation has to be exhausted before a plaintiff files a suit that does not contemplate any urgent interim relief. 

The authority constituted under the Legal Services Authorities Act, 1987 will conduct the pre-institution mediation. This process of pre-institution mediation will be regulated with the rules that are notified by the Central Government. [10] This pre-institution mediation has to be conducted within 3 months from the date of filing of the application by the plaintiff, although this period can be extended with the mutual consent by parties. [11]

Plaintiff is not required to mandatorily go through pre-institution mediation where a suit contemplates an urgent interim relief. Such cases can arise if mediation would result in an irreparable loss; irreparable loss being one of the essential elements for the grant of an injunction. [12]

If a court is sufficiently convinced that the relief sought by a plaintiff is not of urgent nature and the plaintiff must go for pre-institution mediation, it can refuse to issue summons and also reject the plaint as being barred under Order VII Rule 11(d) of Civil Procedure Code, 1908.

(b) Confidentiality  

The mediator, parties, or their authorized representatives or counsel shall maintain confidentiality about mediation and the mediator shall not allow stenographic or audio or video recording of mediation sittings. [13] This is in the nature of external confidentiality. The mediator shall also maintain the internal confidentiality of discussions made in separate sittings with each party and only such facts which a party permits can be shared with the other party. [14] There exists a duty upon the mediator to uphold the principles of trust and confidentiality. [15]  

References

[1] Section 2(i). The Commercial Courts Act, 2015.

[2] Section 2(1)(c) in Clauses (i) to (xxii)

[3] Section 7 read with Section 2(1) of the Commercial Courts Act.

[4] Shriram EPC v. Rioglass Solar SA, 2018 SCC Online SC 1471.

[5] Section 12, The Commercial Courts Act, 2015.

[6] M. V. Durga Prasad, Commentary on The Commercial Courts Act, 2015 44 (Asia Law House, Hyderabad, 1st edn. 2018).

[7] Mukesh Kumar Gupta v. Rajneesh Gupta, 2016 SCC Online Del 3148.

[8] Microsec Capital Limited v. Ankit Bimal Deorah, 2016 SCC Online Bom 4795.

[9] Section 12A, inserted by The Commercial Courts, Commercial Division and Commercial Appellate Division Of High Courts (Amendment) Act, 2018

[10] Section 21A, The Commercial Courts Act, 2015.

[11] Rules under Commercial Courts (Pre-institution Mediation and Settlement) Rules, 2018 [Section 21A read with Section 12A, The Commercial Courts Act, 2015.]

[12] M/s M.K. Food Products v. M/s S.H. Food Products, Civil (Revision) Petition No. 3690/2018; GSD Constructions Pvt. Ltd v Balaji Febtech Engineering, MANU/MP/0451/2019.

[13] Rule 9, Commercial Courts (Pre-institution Mediation and Settlement) Rules, 2018

[14] Rule 7(1)(vi), Commercial Courts (Pre-institution Mediation and Settlement) Rules, 2018

[15] Rule 12, Commercial Courts (Pre-institution Mediation and Settlement) Rules, 2018

Introduction

The Insolvency and Bankruptcy Code, 2016 (‘the Code’) has amended and as well as replaced many provisions of other statutes that could have created an overlap of powers and functions with respect to the resolution of insolvency and liquidation of certain entities. Among these statutes, One Person Company [1] (‘OPC’) and Limited Liability Partnership ('LLP') has also been covered in order to give power to National Company Law Tribunal (‘NCLT’) to regulate the insolvency resolution process as well as the liquidation process for the abovementioned entities. [2]

Amendment in Limited Liability Partnership Act, 2008

In the 10th Schedule of the Code, the provisions of winding up of an LLP as mentioned in other statutes [3] were omitted. On the other hand, for OPC, Schedule 8 was enacted for the same purpose. These schedules, when coupled with the overriding power of the Code [4], states, that from the date of enforcement of the Code, all the insolvency and liquidation matters of the entities as mentioned therein [5] will be governed by the Code alone. This is also evident from the provisions which give power to the Code [6] to apply the provisions of the statute on any OPC/LLP. [7] 

Initiation of Insolvency Proceedings

1. Insolvency Proceedings against an OPC and LLP can be initiated by any Financial Creditor [8], Operational Creditor [9], or the entities themselves [10] when there is any debt [11] with respect to any of these creditor(s) [12], and there exists a default of payment [13] with respect to these debts.

2. It must be noted that, in order to initiate a corporate insolvency resolution process (‘CIRP’) against an OPC/LLP, the default of payment must be at least Rs. 1 lakh [14] and falling in the ambit of financial debt [15] or operational debt [16] as mentioned in the Code. 

3. Because of the fact that time is an essential aspect, the whole process of CIRP is to be completed in 180 days [17]. However, if the NCLT is of the opinion that the process will not be able to be completed within such prescribed time-limit, and extension of 90 [18] days can be granted by it. Thus, the total time period for the CIRP to be completed must not exceed a period of 330 days from the date of commencement of insolvency proceedings against the corporate debtor. [19]

Steps after the admission of application for CIRP

1. Once the application for initiation of CIRP is admitted by NCLT, it appoints an Insolvency Resolution Professional (‘IRP’) [20] who takes charge of the management of the firm in order to take necessary steps to help revive the company and pay-off its debts. [21] He can also raise fresh funds [22] to continue the operations of the OPC/LLP and has to make all the endeavors to protect the value of the property of the corporate debtor. [23]

2. During this period, the NCLT also initiates the period of moratorium [24], while the IRP makes a public announcement to call out all the creditors of the firm to claim their debt. [25] 

3. The firm is deemed to be insolvent on the very date when an application for initiating CIRP against the firm is admitted by NCLT. [26]

Committee of Creditors

1. The Creditors give their claims to IRP, and submission of these claims are regulated by the Code. [27]

2. After all the claims are collated by the IRP, he forms a Committee of Creditors (‘CoC’) [28] which contains all the creditors of firm tom whom the debt has not been paid off. The constitution of the CoC also has certain conditions and priorities with respect to the category of creditors. [29]

3. The CoC has the power to appoint IRP as the Resolutions Professional (‘RP’) or appoint any other eligible Insolvency Professional as RP. [30] 

4. The CoC has the power to decide the actions taken by the RP [31] for managing the business of the corporate debtor. 

5. The voting rights of members of the CoC are in proportion to the financial debt owed to them by the corporate debtor. [32]

6. The CoC has to conduct regular meetings to discuss the next steps to be taken for the insolvency resolution of the corporate debtor. These meetings are to be in conformity with the provisions of the Code. [33] 

Preparation of Information Memorandum

When the CoC has appointed an RP, the next step is to create an information memorandum [34] that contains all the relevant information that acts as an aid for the CoC to make better decisions with respect to the situations, which the committee might have made without any analysis. This memorandum is created by the RP. [35] There is a time limit and a manner in which the memorandum has to be submitted by the RP. [36]

Resolution Plan

The Resolution Plan is one of the most important aspects of the whole CIRP. This Resolution Plan is made with the objective of maximizing the value of assets of the corporate debtor. [37] The contents of the Resolution Plan as mentioned by the regulations must adhere to. [38] 

This resolution plan is submitted by a Resolution Applicant [39] and must be in conformity with provisions of the Code [40] in order to be approved by the NCLT for the resolution of the corporate debtor.

After RP has verified the Resolution Plan in accordance with the provisions of the Code [41], he has to present the Plan to CoC to obtain its approval. [42] If the Plan is approved by the CoC [43], the Plan is forwarded to NCLT, which decides whether the Plan is fit to be approved or not. [44]

Approval/Rejection of Resolution Plan

The Resolution Plan has to be approved by the CoC [45] as well as the NCLT [46] in order to continue the business of the corporate debtor as a going concern and prevent its liquidation. Thus, there are two situations that can occur if either CoC or NCLT approves or rejects the Resolution Plan.

(a) When Resolution Plan is Rejected/Disqualified

      (i) If the NCLT does not receive a resolution plan [47]

   (ii) If the Resolution Plan is rejected by RP on account of it being in non-conformity with the provisions of the Code. [48] 

     (iii) If the Plan has not been able to obtain at least 66% of the voting share of the CoC, and if there is no other alternative to resort to within the specified period, the NCLT will have no other option except proceeding with the liquidation of the corporate debtor. [49]

(b) When the Resolution Plan is approved

   (i) If the Resolution Plan is approved by at least 66% of the voting share of the CoC and is submitted to the NCLT by the RP within the prescribed time limit. [50] 

Contingent Situations with respect to the Resolution of Insolvency

(a) When insolvency is resolved

If the Resolution Plan is accepted, the corporate debtor will be prevented from liquidation and maximum efforts will be put in order to revive the business and pay off the debts of the creditor of the corporate debtor. It is to be noted that if the approval of the NCLT is obtained, then the period of moratorium ceases to exist. [51]

(b) When insolvency is not resolved

If the Resolution Plan is rejected [52], or if there is a mutual agreement by the members of the CoC to liquidate the business of the corporate debtor [53], then the NCLT has no other option but to give the order to liquidate the business of the corporate debtor. This decision by the CoC to liquidate the business of the corporate debtor must be taken before submitting the resolution plan to the NCLT.

Process of Liquidation

1. After NCLT has passed the order for liquidation, a liquidator is appointed [54] who consolidates [55] and verifies the claims of all the creditors. [56] He has the power to accept or reject the claims [57] provided he give sufficient reason for doing so. Further, he has to determine the value of claims. [58]

2. The assets that can be liquidated in order to satisfy the claims of the debtors are called ‘Liquidation Estate’. Provisions of the Code contain a list of assets of the corporate debtor that can be liquidated.[59]

3. After all the assets are liquidated, they are to be distributed in accordance with the priority of claims as mentioned in the Code. [60] When the proceeds obtained from the liquidation of such assets are distributed, the liquidator has the responsibility to make an application to the NCLT for the dissolution of the Corporate Debtor. [61] 

4. When the application for the dissolution of the corporate debtor is approved by the NCLT, the corporate debtor is dissolved and ceases to exist. [62]

References

[1] Section 2(62), Companies Act, 2013.

[2] Section 2(62), Companies Act, 2013; Section 2(n), Limited Liability Partnership Act, 2008 r/w Section 2(a), Insolvency and Bankruptcy Code, 2016.

[3] Section 64(C), Limited Liability Partnership Act, 2008.

[4] Section 238, Insolvency and Bankruptcy Code, 2016.
[5] Section 2, Insolvency and Bankruptcy Code, 2016.
[6] Section 2(a) r/w Section 255, Insolvency and Bankruptcy Code, 2016.
[7] Section 3(7) r/w Section 3(8) and Section 3(23), Insolvency and Bankruptcy Code, 2016.
[8] Section 5(7) r/w Section 7, Insolvency and Bankruptcy Code, 2016.
[9] Section 5(20) r/w Section 8 and Section 9, Insolvency and Bankruptcy Code, 2016.
[10] Section 5(5)(a) r/w Section 10, Insolvency and Bankruptcy Code, 2016.
[11] Section 3(11), Insolvency and Bankruptcy Code, 2016.
[12] Section 3(10), Insolvency and Bankruptcy Code, 2016.
[13] Section 3(12), Insolvency and Bankruptcy Code, 2016.
[14] Section 4, Insolvency and Bankruptcy Code, 2016.
[15] Section 5(8), Insolvency and Bankruptcy Code, 2016.
[16] Section 5(21), Insolvency and Bankruptcy Code, 2016.
[17] Section 5(14) r/w Section 12(1), Insolvency and Bankruptcy Code, 2016.
[18] Section 12(3), Insolvency and Bankruptcy Code, 2016.
[19] First Proviso of Section 12(3), Insolvency and Bankruptcy Code, 2016.
[20] Section 13(c) r/w Section 16, Insolvency and Bankruptcy Code, 2016.
[21] Section 17 and Section 18,  Insolvency and Bankruptcy Code, 2016.
[22] Section 5(15) r/w Section 20(2)(c), Insolvency and Bankruptcy Code, 2016.
[23] Section 20, Insolvency and Bankruptcy Code, 2016
[24] Section 13(a) r/w Section 14, Insolvency and Bankruptcy Code, 2016.
[25] Section 13(b) r/w Section 15, Insolvency and Bankruptcy Code, 2016.
[26] Section 5(12), Insolvency and Bankruptcy Code, 2016.
[27] Section 18(b), Insolvency and Bankruptcy Code, 2016. r/w Regulation 12(1), IBBI (CIRP) Regulations, 2016.
[28] Regulations 12(3), 16, and 17(1), IBBI (CIRP) Regulations, 2016.
[29] Section 21(2) and Section 21(3), Insolvency and Bankruptcy Code, 2016.
[30] Section 22, Insolvency and Bankruptcy Code, 2016.
[31] Section 28, Insolvency and Bankruptcy Code, 2016.
[32] Section 24(6), Insolvency and Bankruptcy Code, 2016.
[33] Section 24, Insolvency and Bankruptcy Code, 2016.
[34] Section 5(10), Insolvency and Bankruptcy Code, 2016.
[35] Section 29(1), Insolvency and Bankruptcy Code, 2016.
[36] Regulation 36, IBBI (CIRP) Regulations, 2016.
[37] Regulation 37, IBBI (CIRP) Regulations, 2016.
[38] Regulation 38, IBBI (CIRP) Regulations, 2016.
[39] Section 5(25), Insolvency and Bankruptcy Code, 2016.
[40] Section 30, Insolvency and Bankruptcy Code, 2016.
[41] Section 30(2), Insolvency and Bankruptcy Code, 2016.
[42] Section 30(3), Insolvency and Bankruptcy Code, 2016. r/w CIRP Regulation 39(2) & 39(3).
[43] Section 30(4), Insolvency and Bankruptcy Code, 2016 r/w Regulation 39(3), IBBI (CIRP) Regulations, 2016.
[44] Section 30(6), Insolvency and Bankruptcy Code, 2016. r/w Regulation 39(4) & 39(5), IBBI (CIRP) Regulations, 2016.
[45] Section 30(4), Insolvency and Bankruptcy Code, 2016. r/w Regulation 39(3), IBBI (CIRP) Regulations, 2016.
[46] Section 31, Insolvency and Bankruptcy Code, 2016.
[47] Section 30(6), Insolvency and Bankruptcy Code, 2016.
[48] Section 30(2), Insolvency and Bankruptcy Code, 2016.
[49] Section 33(1), Insolvency and Bankruptcy Code, 2016.
[50] Section 30(6), Insolvency and Bankruptcy Code, 2016.
[51] Section 31(2), Insolvency and Bankruptcy Code, 2016.
[52] Section 33(1), Insolvency and Bankruptcy Code, 2016.
[53] Section 33(2), Insolvency and Bankruptcy Code, 2016.
[54] Section 34, Insolvency and Bankruptcy Code, 2016.
[55] Section 38, Insolvency and Bankruptcy Code, 2016.
[56] Section 39, Insolvency and Bankruptcy Code, 2016.
[57] Section 40, Insolvency and Bankruptcy Code, 2016.
[58] Section 41, Insolvency and Bankruptcy Code, 2016.
[59] Section 36, Insolvency and Bankruptcy Code, 2016.
[60] Section 53, Insolvency and Bankruptcy Code, 2016.
[61] Section 54, Insolvency and Bankruptcy Code, 2016.
[62] Section 302, Companies Act, 2013.

(i) Directors (or their relatives);
(ii) Key managerial personnel (or their relatives);
(iii) Subsidiaries;
(iv) Holding companies; and
(v) Associate companies.

“Cyber terrorism could also become more attractive as the real and virtual worlds become more closely coupled”

- Dorothy Dennings

Introduction

One of the most misunderstood and confusing terms in Cyber laws are Cyber-terrorism, cybercrime, and cyber warfare. The difference between them is not known by masses which often leads to miscommunication of information. Cybercrimes are crimes conducted in cyberspace, and cyber warfare means actions by a nation-state to penetrate other nation’s computers or networks for the purposes of causing damage or disruptions [1], still, the term cyber-terrorism has a different take. Dorothy Denning, a professor of computer science gave one of the best definitions of cyber-terrorism to ever exist, defining Cyber terrorism as “The convergence of cyberspace and terrorism. 

The main essence of the word includes all the unlawful attacks as well as the threat of committing such attacks against the computers in order to compel the government or its people to pursue a political or social objective.

Another requirement is that the attack must generate fear among the people, or create a situation of violence against individuals or property. This can include attacks that result in death, severe economic breakdown, and explosions, and attacks against critical infrastructures.” [2]        

Narrowing down to the Indian scenario, according to reports, the easiest way to attack India is through the cyber networks. Although it is cost-intensive but will spare the cyber-terrorists of risking manpower and, the impact of such an attack will be immense on the national economy and infrastructure. Cyber Terrorism is a crime that has emerged in recent times in India. Well, the laws through the implementation of the Information Technology Act, 2000 was a big step towards creating punishment for such offences. [3] But due to the ever-changing and ever-evolving nature of the internet, the laws have become more or less ineffective. There is a need for innovative laws and global standards on preventive action.

India has gradually been shifting from traditional to e-governance, which can be observed from the fact that sectors like income tax, visa, and passports have been transformed into electronic form. This proves that India has started to rely heavily on technology. Other instances where we can see the reliance on technology are banking and financial institutions, travel sectors, e-commerce, and stock markets. Due to this, these sectors are considered to be lucrative targets to create havoc in the country. The damage done can be catastrophic and irreversible. [4]

An individual is considered to be the smallest and most essential element to create a nation, and any crime against the individual should be considered as an important aspect for the government to maintain law and order. There is a wide range of attacks and vulnerabilities which can be considered as a crime against the Nation. The most important among them are:

With almost all the countries adopting the e-governance infrastructure, India is also doing the same in the shape of e-administration.

The most important goal of e-governance is to make it easy for the citizens to interact with the offices of administration and to share the information with reliability and transparency. The main essential of democracy is that the people have the power to govern themselves and to do this effectively, they must be aware of every aspect of human society such as social, political, and economic issues. This form of governance thus becomes the primary target of terrorists to destroy the communication system.

When compared to other tangible damages that are caused by the activities of traditional terrorists this would be more disastrous. Thus terrorists have the ability to obtain the information illegally which has been protected from public access and in the interest of the nation.

The main ability of the network system is the availability of the system when required. When it comes to the administration or the government, the network has to be secure and robust with appropriate network information security due to the fact that it contains the data which are in the interest of the Nation and if this data is accessed by an unwanted entity, it can create a dangerous situation for the whole country. The online security experts in India thus suggest that online security stems should be strengthened because DDoS and defacing a site attach are the most used attacks.

The primary objective of the actions resorted to by cyber terrorists is to damage or disrupt the networks, which helps in diverting the attention of the security agencies giving them extra time to make their task comparatively easier. This process can involve combinations of many many other attacks, such as virus attacks, tampering with electronic devices, or hacking. Due to this, around 6000 websites originating in India were defaced in 2009. [6]

Challenges to Indian Cyber Security and Cyber Laws

There are a lot of reasons which have resulted in India’s cyber-security to such vulnerability to cyber-terrorism even after implementation of laws such as IT Act, 2000 and existing counter-cyber security initiatives such as National Informatics Centre (NIC), Indian Computer Emergency Response Team (Cert-In), National Information Security Assurance Programme (NISAP), and Indo-US Cyber Security Forum (IUSCSF). Some of the reasons are mentioned as follows:

Suggestions/Measures to counter Cyber-Terrorism
(a) Need to create awareness among the general public about the dangers of cyber terrorism. The counter cyber-terrorism bodies should follow an aggressive strategy and engage academic institutions.
(b) Joint efforts by all Government agencies including defense forces to attract qualified skilled personnel for implementation of countermeasures.
(c) The organizations dealing with cybersecurity should be given all support and no bureaucratic dominance should be allowed.
(d) Agreements relating to cybersecurity should be given the same importance as other conventional agreements.
(e) More investment in this field including finance and manpower. 
(f) Indian agencies working after cybersecurity should also keep a close vigil on the developments in the IT sectors of our potential adversaries.
(g) The use of digital signatures, encryption of data, security audit, and cyber forensics should also be focused on as a subject matter of creating awareness.
(h) E-discovery investigation should also be given support to prevent cases of cyber crimes, corruption, and serious frauds. [8]
(i) Bleeding edge technology to keep up with modern measures against cyber threats.
(j) Laws should meet requirements made by modern technology developments.
(k) With a combination of knowledge and expertise, a counter-cyber terrorism team can build an effective strategy for preventing cyber-terrorist incidents.
(l) More international co-operations are necessary for the eradication of the threat. [8]

Introduction

In developing countries like India where the problem of unemployment is great, there is a chance of exploitation of labourers being poor and having no bargaining capacity. In such circumstances, the employer may offer the labourer wages even below the subsistence level resulting thereby into starvation of labour, Therefore, the legislature thought fit to control the unfair practices of the employer of paying wages below the subsistence level to the employees. As per the Minimum Wages Act, 1948 every employer is bound to pay the minimum wages to his employees. These wages are said to be statutory wages. Even public works ostensibly initiated by the government for the sole purpose of providing employment are subject to this Act.

The Validity of the Act

In the case of Shamrao v. State of Bombay, the constitutionality of the Act was challenged by the employers to be violative of fundamental freedom under Article 19(1)(g) of the Constitution of India. But the Supreme Court held that the Act is constitutional as per the provisions of Directive Principle of State Policy embodied under Article 43 of the Constitution of India. The same was held in the V. Unichonoy v. State of Kerala, and Golmohammad Tatyasaheb v. State of Bombay. 

It was argued that this Act is violative of Article 14 as the provision in question, that is, section 3(3)(iv) of this Act was not in contravention to the equal protection clause of the constitution. This was decided in the case of Bhikusa Yamasa Kshatriya v. Sangamner Akola Bidi Kamgar Union.

In the case of N.M. Wadia Charitable Hospital v. State of Maharashtra, it was held that fixing different minimum wages for different localities is permitted under the constitution and under the labour laws. 

Object and Scope

To provide for fixing minimum rates of wages in certain employments. The employments are those which are included in the schedule and are referred to as ‘Scheduled Employments’. The Act extends to the whole of India.

Purports to achieve is to prevent exploitation of labour and for that purpose empowers the appropriate Government to take steps to prescribe minimum rates of wages in the scheduled industries.  In an underdeveloped country which faces the problem of unemployment on a very large scale, it is not unlikely that labour may offer to work even on starvation wages. 

The policy of the Act is to prevent the employment of such sweated labour in the interest of the general public and so in prescribing the minimum rates, the capacity of the employer need not be considered. 

What is being prescribed is minimum wage rates which a welfare State assumes every employer must pay before he employs labour. This Act aims to ensure not only bare physical subsistence but also maintenance of health and decency.

It ensures and secures adequate living wages to the labourer in the interest of the general public. To keep the family of the labourer living and to add to his efficiency and ensure a decent standard of life and full of employment of leisure and social and cultural opportunities.

What are Wages?

The meaning of the term ‘wages’ is defined under Section 2(h) of the Act. It means all remunerations capable of being expressed in terms of money, which would, if the terms of the contract of employment, express or implied, were fulfilled, be payable to a person employed in respect of his employment or of work done in such employment, and includes house rent allowance.

There are some exceptions to this definition. The term wages under this Act does not include:

The act recognizes Scheduled Employment. The meaning of the term ‘scheduled employment’ is defined under Section 2(g) of the Act. It means employment specified in the Schedule or any process or branch of work forming part of such employment. The schedule is divided into two parts namely, Part I and Part II. When originally enacted Part I of Schedule had 12 entries. Part II relates to employment in agriculture. It was realized that it would be necessary to fix minimum wages in many more employments to be identified in the course of time. Accordingly, powers were given to the appropriate Government to add employments to the Schedule by following the procedure laid down in Section 21 of the Act. The State Government and Central Government have made several additions to the Schedule and it differs from State to State.

Who is an Employee?

The meaning of the term ‘employee’ is defined under Section 2(i) of the Act. It means any person who is employed for hire or rewards to do any work, skilled or unskilled, manual or clerical in scheduled employment in respect of which minimum rates of wages have been fixed; and includes an outworker to whom any articles or materials are given out by another person to be made up, cleaned, washed, altered, ornamented, finished, repaired, adapted or otherwise processed for sale purpose of the trade or business of that other person where the process is to be carried out either in the home of the out-worker or in some other premises, not being premises under the control and management of that person; and also includes an employee declared to be an employee by the appropriate Government. 

The definition does not include any member of the Armed Forces of the Union.

Who is an Employer?

The meaning of the term ‘employer’ is defined under Section 2(e) of the Act. It means any person who employs, whether directly or through another person, or whether on behalf of himself or any other person, one or more employees in any scheduled employment in respect of which minimum rates of wages have been fixed under this Act and includes:

Offences and Penalties

The offences and penalties recognized by this Act have been dealt with under Section 22. They are listed as below:

The government under the Minimum Wages Act, 1948 has made it mandatory to provide the workers working in a factory with minimum wages. Therefore, Section 3(1)(a) of this act states the Fixation of Minimum Rates of Wages. This will help the employees to get their hard-work paid appropriately.

Any minimum rate of wages fixed or revised may consist of:

The Dearness Allowance (DA) is a cost of living adjustment allowance paid to Government employees, Public sector employees (PSE) and pensioners. It is payable to monthly, daily and piece-rate earners. The respective State Governments issue the Cost of Living Index number every six months for each and every scheduled employment.

For calculation, DA is divided into two separate categories: Industrial Dearness Allowance and Variable Dearness Allowance.

Industrial Dearness Allowance (IDA) applies to the Public sector employees of the Central Government. The Industrial Dearness Allowance for public sector employees undergoes quarterly revision depending on the Consumer Price Index to help offset the impact of rising levels of inflation.

Variable Dearness Allowance (VDA) applies to the employees of the Central Government. It is revised every six months according to the Consumer Price Index to help offset the impact of rising levels of inflation. VDA in itself is dependent on three different components as given below.

Dearness Allowance% = (Average of AICPIN for the past 12 months – 261.4) * 100 / 261.4

Dearness Allowance% = (Average of AICPIN for the past 3 months – 126.33) * 100 / 126.33

AICPIN stands for the All India Consumer Price Index. Dearness allowance is calculated from the AICPIN value, once the AICPI(IW) for a particular month is published by the Government. AICPIN is issued by the Ministry of Labour and Employment, which are revised periodically.

The dearness allowances are revised by the government twice a year. It was increased by the Central Government from 15% to 17% when was revised in July 2019.

The minimum rates of wages include the basic rates and Variable Dearness Allowance. The revised rates of Variable Dearness Allowance on the basis of the average Consumer Price Index for Industrial Workers.

Financial Creditor

A financial creditor is defined under Section 5(7) of the IBC to mean "a person to whom a financial debt is owed and includes a person to whom such debt has been legally assigned or transferred". In order to ascertain whether a person is a financial creditor, the debt owed to such a person must fall within the ambit a 'Financial Debt' as under Section 5(8) of the IBC. Financial debt is defined under Section 5(8) of the IBC to mean: "a debt along with interest, if any, which is disbursed against the consideration for the time value of money and includes:

Homebuyers are also considered to be the financial creditors [1] provided only if 10% or 100 homebuyers (whichever is less) or moe debenture holders agree to move the application for insolvency. [2] Furthermore, it has also been held that dissenting financial creditors cannot be allowed to scramble CIRP. [3] Also, the commercial freedom of individual financial creditors is non-justiciable, [4] while the dissenting financial creditors should not be discriminated against. [5] The dispute with the financial creditor is not relevant for deciding the admission of insolvency resolutions process.[6] A notice is required to be given to the corporate debtor for the initiation of CIRP. [7]

Operational Creditor

An operational creditor is defined under Section 5(20) of the IBC to mean "any person to whom an operational debt is owed and includes any person to whom such debt has been legally assigned or transferred".

In order to ascertain whether a person would fall within the definition of an operational creditor, the debt owed to such a person must fall within the definition of an operational debt as defined under Section 5(21) of the IBC.

An operational debt is defined under section 5(21) of the IBC to mean: "a claim in respect of the provisions of goods or services including employment or a debt in respect of the repayment of dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority". 

Furthermore, statutory dues (income tax, sales tax, VAT) are also treated as operational debt.[8] Passing an arbitral award and steps taken to challenge the arbitral award constitutes a valid dispute with regard to operational debt as well as a pending appeal under Arbitration and Conciliation Act. [9] The demand notice of unpaid operational debt can be issued by a lawyer on behalf of the operational creditor. [10]

The distinction between Financial and Operational Creditor

The distinction between a financial creditor and an operational creditor has been drawn by the Bankruptcy Law Reforms Committee in para 5.2.1 of its final report [11]. It states: "Here, the Code differentiates between financial creditors and operational creditors. Financial creditors are those whose relationship with the entity is a pure financial contract, such as a loan or debt security. Operational creditors are those whose liabilities from the entity come from a transaction on operations...The Code also provides for cases where a creditor has both a solely financial transaction as well as an operational transaction with the entity. In such a case, the creditor can be considered a financial creditor to the extent of the financial debt and an operational creditor to the extent of the operational debt."

The Hon'ble Tribunal while deciding the question of whether a flat purchaser could be considered an operation creditor [12] considered the observations of the Bankruptcy Law Reforms Committee in paragraph no. 5.2.1 of the Final Report [13]:

"Operational Creditors are those whose liability from the entity comes from a transaction on operations. Thus, the wholesale vendor of spare parts whose spark plugs are kept in inventory by car mechanics and who gets paid only after the spark plugs are sold is an operational creditor. Similarly, the lessor that the entity rents out space from is an operational creditor to whom the entity owes monthly rent on a three-year lease."

From the case law discussed above, it is evident that the Tribunals are stringent in construing the definition of 'Operational Creditor' under the IBC and are refraining from entertaining applications wherein the applicants are not strictly falling within the scope of the IBC and have alternate effective remedies available. The Hon'ble Tribunal has also in subsequent cases before it passed similar orders [14].






References

An Overview Of SEBI

The Securities and Exchange Board of India (SEBI) plays an instrumental role in regulating the securities market in India. SEBI was established in 1988 but was given statutory recognition on 30 January 1992 through SEBI Act 1992. SEBI has its headquarters at different part of the Country. Before 1992 there was no such legal statute which was binding upon the securities market. There were different regional stock exchanges like Calcutta Stock Exchange, Bombay Stock Exchange In order to facilitate better regulation of the securities market SEBI Act was passed. The act provides us with different purposes like:

To protect the interest of the investors investing in such markets. Generally, the people investing in such market lacked technical knowledge, which was required so it also wanted to educate such investors so that their knowledge about the market gets enhanced. 

To stop malpractices like Insider Trading, Price Ragging etc. Though such practices are often done by some people but it has its impact upon large group of investors. SEBI imposes heavy penalty on such people. So that such practices could not be practice in future.

To promote the development of, and also regulating the securities market and for matters connected therewith or incidental thereto. This is one of the most important purpose for which the Act provides for. The capital economy is one of the vital tools of the Indian Economy, so it should be regulated in an efficient and smooth manner. 

An Act without Management or without proper implementation is useless. Therefore, for better implementation of the Act a board has been established. Section 4 of the SEBI Act provides for the management of securities and exchange board of India. It states that SEBI shall consist of the following members - namely a Chairman, 2 members amongst the officials of the Ministry of Central Government dealing with Finance and Administration of the Companies Act, 2013, 1 member from amongst the officials of the Reserve Bank, 5 other members of whom at least 3 shall be whole time members, to be apportioned by Central Government.
The Chairman and the other members of the board shall be persons of ability, integrity, and standing who have also shown some capacity on dealing with the problems relating to the securities market or have special knowledge or experience of Law, finance, economics, accountancy or in any other discipline which, in the opinion of the CG, shall be useful to the SEBI. Section 7 provides for the meetings of the board, that how the meeting shall be conducted.

Powers of SEBI

SEBI is vested with the powers of civil court in respect of discovery and production of books, documents, records, accounts, summoning and enforcing the attendance of persons company and examine them on oath. SEBI may take the following measures in the interest of investors or securities market: 

1. Suspends the trading of any security in stock exchange.
2. Retain or prohibit any person from accessing the market.
3. Suspend any officer of stock exchange.
4. SEBI can levy fines for violation relating to failure to submit information to SEBI. 

Securities Appellate Tribunal

Establishment of SAT the Central Government may by notification establish one or more appellate tribunal which is known as SAT. Tribunal shall consists of one presiding officer, and two other members both theses members shall be appointed by central government. For the purpose of discharging the function SEBI Act, the SAT shall also have the same powers as vested upon civil courts. The main function of SAT is to adjudicate matters related to SEBI and pass orders related to it. Any person aggrieved by decision of the SAT may file an appeal to the Supreme Court of India, it should be noted that an appeal can only be made on point of Law, not on point of fact. appeal shall be filled within 60 days from receiving the order of SAT.

In Sterlite Industries v. Union of India:  It was held in this case that SEBI has wide and discretionary powers to regulate the securities market and protect the interest of the investor.

In Dalmia Securities v. G.S. Reddy: It was held in this case SEBI can put some restrictions and conditions registration or renewal. However, such conditions must be fair, reasonable and abide the principle of natural justice as SEBI is a Public Authority.

The Change in the Method after SEBI

The law pertaining to trading and regulating of Securities and exchange market in India was passed in the year 1992 but the concept of trading in securities was much before that earlier there were different regional stock exchanges in India like Bombay stock exchange Calcutta stock exchange Madhya Pradesh Stock Exchange etc. Following the recommendations of A.D. Gorwala Committee the Securities Contracts (Regulation) Act, 1956 was passed to provide for direct and indirect control of virtuality in all aspects of Securities trading and running of stock exchanges and to prevent fraudulent transactions. Different companies were listed in such regional stock exchanges and people used to trade in such different commodities and securities listed in such talks stock exchanges.
The main change which has occurred in the trading of the stock exchanges was in the method prior to 1992. The physical share concept was there the investors used to gather in such regional stock exchanges and followed the Public Outcry method which was a primitive method. Actually, the e shares concept was introduced by Depositories Act Of 1996 the primitive method was replaced by the method of Online Trading of shares and securities which resulted into nonfunctional of many regional stock exchanges. This is a classic example of technical obsolescence but the Bombay Stock Exchange moved with the time and followed the method of online trading of shares and securities and has evolved as one the recognized stock exchange.
National Stock Exchange is also a recognized stock exchange of India. Both these stock exchanges have their own software NSE uses the software named National Exchange Automated Trading and BSE uses BOLT BSE Online Trading. Earlier trading in securities didn’t have much options but concept of online trading has provided for various options to the investors. This method was also appreciated by Companies because it was more convenient to them and also helped in expanding the horizons of their business. 

Role of Securities and Exchange Board Of India 

The Securities and Exchange Board of India plays a very dynamic role it has to perform different roles at different time. With the advent of time Securities Market of India is growing as the market is growing misconducts are also growing like insider trading, delivery of share lately, price ragging and violation of statutes. However, in order to promote the efficient working of the market and to protect the interest of the shareholders SEBI plays an active role.

Protective Role

SEBI constantly keeps a check upon the insiders who buy securities of the company. Insider Trading is also prohibited by the Companies Act, 2013. Insider trading States that no person shall do Act of counselling about procuring or communicating directly or indirect any non-public price sensitive information to any person as defined under Section 195 of the Companies Act. Now, if a person contravenes such provision, he shall be punishable. In order to be stricter and to stop such unfair practice SEBI has its own regulation named SEBI (Insider Trading) Regulation, 1992. Strict punishment is provided by SEBI in such cases, further chapter 4A of the SEBI act provides for that Section 15(G)(1) if an insider either on its own or on behalf of any person has dealt on the behalf on the company has published any information he may be fined or charged with Rs.25 crores or three times the profit made whichever is higher. Section 15(G)(11) if an insider has given any price sensitive information then he may be fined with 25 crores or 3 times the profit made. Now, according to Section 15(G)(iii) if an insider has procured any other person to deal in Securities of anybody corporate on the basis of published information then he may be fined with 25 crores or three times the profit made whichever is higher. Also, Section 11 of the SEBI act empowers the board to investigate upon the matters which looks doubtful or suspicious. Every Director at time of his appointment has to furnish the details about his shareholding in the company. Moreover, it is the duty of the director to lay down in the meetings in which they have own interest.

In the case of Dilip Pendse v. SEBI:

Nishkalpa was a wholly owned subsidiary of TATA Finance Ltd (TFL) which was a listed company. The Managing Director of TFL ltd. was Dilip Pendse. On March 31 2001, a huge loss of Rs 79.37 crores was incurred by Nishkalpa and this was going to affect the profits of the company. This was however an unpublished price sensitive information of which Pendse was aware of. The information regarding this was published to the public on April 30, 2001. Thus, any further transaction by an insider between March 31, to April 30, 2001 would impliedly fall within the scope of Insider Trading. This information was passed by Dilip Pendse to his wife who had sold shares of TFL ltd amounting 2,90,000 in her own name as well as in the name of the Companies controlled by her father in law. 

SEBI made an investigation against Dilip Pendse and after completion of the investigation, SEBI founded and was of the opinion that Pendse has used unpublished price sensitive information and thereby avoided loss. Thereafter, he was found guilty and punished with a penalty of Rs500000 imposed on each Dilip Pendse, his wife and also Nalini Properties Limited. 

SEBI also makes attempt to prohibit unfair trade practices for example is doesn’t not allow the company to make misstatements in prospectus and raise any kind of money from the public. A prospectus needs the approval of the SEBI before hitting the market than only the concerned company can issue its prospectus. The Companies Act 2013 provides for misstatements in prospectus i.e. Section 34 which provides for criminal liability, section 35 provides for civil liability and there is also a general provision for punishment in case of fraud prescribed in section 447.
SEBI Companies (Prospectus and Allotment of Securities) Rules 2014, Rule 3 states about contains of a prospectus.

Rule 4 of the PAS Rules contains details regarding the reports to be set out in the prospectus      which contains the report by auditors with respect to profit and losses statement, and also assets and liabilities. If the company has any subsidiary company then statements in regard to those companies should also be stated. 

SEBI also takes steps to educate the investors in order to decrease the changes of fraudulent transactions. It also wants the investors before investing to carefully go through the documents of the concerned company in which they are interested.

Functioning of SEBI

It is very clear that a dynamic and efficient capital market is vital and indispensable part of nations financial infrastructure. Capital Market play an important role in providing direct finance to the corporate sectors which leads to infrastructure development. In India the capital market comprises of debt, equity shares and other derivatives, capital markets in India is growing tremendously and role played by SEBI is indispensable however there are certain problems which are there in the functioning of SEBI they are:

1. Excessive Regulations and Circulars: SEBI provides for various regulation for the effective control of capital market. Frequent amendments and alterations in such rules and regulations adversely affects the transaction which are in process. SEBI is known to issue Circulars under regulations, it is extremely difficult to keep the track of every circulars issued by the apex authority. Moreover, the interpretation of regulations and effects of the circular are also sometimes contrary. For instance, in SEBI (Mutual Fund Regulations) 1996, Regulations no 7 states that any person who holds 40% stake in the mutual fund will be deemed to be a sponsor and then he has to comply with criteria of sponsor.  However later on the circular declared 10% stake holders in any mutual funds shall also comply with the criteria of sponsor.

2. Investigation by SEBI: SEBI is empowered under Section 11 of the SEBI Act to conduct Investigation and is vested with the same power as of Civil Court.  But the process of investigation initiated by SEBI has no time limitation. There is no such provision which provides for limitation hence the investigation can be pending for any number of years. 

3. Securities Appellate Tribunal: Securities Appellate Tribunal is the adjudicating Authority and it is situated in Mumbai. Any person aggrieved by the decision of SEBI can appeal at Sat, Litigant all over the world have to travel to Mumbai to settle their disputes. In India more investor friendly measure should be adopted and proceedings are not Mumbai centric. Moreover, SEBI doesn’t have the authority to settle monetary disputes but can only impose disciplinary action.

4. Composition: SEBI is the apex authority in matters related to securities market. SEBI is a statutory regulator that has the autonomy to enact a regulatory framework to the whole country, as well as to discharge quasi-judicial functions which affects the fundamental rights of a citizen. It would be prudent that the regulator has at least one full time member who has had practical experience in the field of law. Generally, a person expert in the field of law will provide better legal framework. Generally, in every developed country like in USA the committee knows SEC also have a whole-time legal expert. 

5. Prospectus Approval: A public company in order to raise funds from the public issues prospectus a prospectus before hitting the market needs a prior approval of the SEBI and after SEBI approves it  then it reaches the office of ROC for getting subsequent approval and then only the Prospectus hits the general market and is available to public at large. Still after getting double approval from the Authorities still Company Law provides for punishment for Misstatements. There are various instances where after approval also misstatements are found in the prospectus which poses a question upon the authority of SEBI.

6. Maintaining a digest of Case Laws:  SEBI is party to all litigations where not only SEBI has passed order but also where the constitutional validity of SEBI has also been challenged. SEBI requires a comprehensive interpretation of its statues and definitions. Maintaining a digest of case law will promote uniformity and will establish some procedures which would help the smooth functioning of the authority.

Deciding the Future of SEBI: Uday Kotak Committee Report on Corporate Governance 

In order to facilitate better Corporate Governance amongst the officials who are running their respective heads in their listed firms, SEBI has constituted a panel consisting of about 21-member committee which is headed by the leading banker Mr. Uday Kotak and has entrusted upon them to submit a report within 4 months regarding the recommendations on Corporate governance. Proper Governance structure and ethical principles helps in identifying and distributing rights and responsibilities among different participants in the corporation. SEBI has identified that a proper structure of Corporate Governance is needed in a country like India as it helps in reducing the conflict of interests between the different stakeholders of the company. Corporate Governance also focus upon Disclosure and Transparency. Recommendations provided by the said committee are as follows; 

1. Composition of the Board of Directors - The Committee recommended that there shall be 6 directors minimum on board and this recommendation shall be effective from April 1, 2019 for top 1,000 listed entities and from April 1,2020 it shall be applicable to top 2000 entities. In the listed company at least one independent director shall be a woman director and this recommendation shall be valid from April 1 2019 to top 500 listed entities and from April 1 2020 will be applicable to top 1000 listed entities. The committee also provided recommendation in connection to maximum number of directorships it has reduced the number of directorships to eight from 2019 and has further reduced it to seven from the year 2020.
2. Role of Board Of Directors - The Chairperson of the  Company shall be a non-executive director and shall be not related to MD or CEO of the company as per definition of related party transactions, company in  which more than 40% is of public shareholding this recommendation shall be binding from April 1 2020 and shall be applicable to top 500 listed entities. Furthermore, the Committee has increased the quorum of the Board meetings. Quorum refers to the minimum number of members required to be present physically to constitute a valid meeting, quorum provided is higher of one-third or three Directors including one independent director. It shall be applicable from 1 April 2019 to top 1000 listed entities. There shall also be disclosure about the expertise/ skills of the director. 
3. Role of an Independent Director has also been enlarged by the recommendations provided by the Uday Kotak Commission Report. At least half of the board members to be Independent Director in listed companies. Criteria for a person to be qualified as an Independent Director has also been revised, further appointment of an Alternate Director for an Independent Director would not be permitted. When he resigns before the contract period a detail as regards to that should to be given. 

Some other recommendations are:

• Enhancing the Role of Audit Committee, Nomination and Remuneration Committee, and Risk Committee provided to certain conditions.
• Disclosures of Auditors credentials, audit fee, reasons for resignation of Auditors.
• Enhanced disclosure about the Related Party Transaction and related parties to be permitted to vote against Related Party Transactions. 
• Increasing the responsibility’s and obligations upon the listed entities with respect to their subsidiaries.
• Top 100 listed entities to hold Annual General Meetings within 5 months after the end of the financial year 2018-2019 which is by 31 August 2019. Webcast of Annual General Meetings will be compulsory for top 100 listed entities by market capitalization. 
• Shareholders’ approval regarding royalty, brand payments to the related party transaction exceeding 2% of consolidated turnover though the committee provided for 5%. 
• Disclosure about the Utilization of Fund from preferential issues. 

Effects of the Committee 

If the recommendation regarding minimum Director was to be implemented: 256 companies (15 per cent) would have to increase the size of their board which must be beyond 5. At present, a board of 5 directors are there for 154 companies (9 per cent), 4 directors on their board for 82 companies (5 percent), for 19 companies (1 percent) 3 directors are there on their board and 1 company has just 2 directors on their board. As a result of which, a number of 379 new directors shall have to be appointed in these companies. If there is a recommendation regarding Independent Director will be implemented: As many as 326 companies (20 per cent) would have to change the composition of the board to ensure that at least 50 per cent of the total number of directors are independent.
There is 1 company which would need to appoint 7 independent direct out of these 326 companies further if there are 3 companies they would need to appoint 5 independent directors each, if the number of companies are 4 than would need to appoint 4 independent directors each, if 18 companies than they would need to appoint 3 independent directors each and in case of 59 companies, 2 independent directors each would need to be appointed and in case of 241 companies they would need to appoint 1 independent director each, hence a total of 451 independent directorship positions. If the recommendation regarding Chairperson being a non-executive director to be implemented: At present, in more than even half i.e. 860 companies (51per cent), the chairperson is considered as an executive director.
However, all these companies would need to change this. If the recommendation regarding the Annual General Meetings is to be implemented: The companies which got listed before 1st April 2017 and whose financial year ended on 31st March 2017, out of 1567 only 626 such companies had their AGM within 5 months viz. before 1st of September 2017. The remaining 941 companies (or a huge 60 per cent) had their AGM after 5 months from end of financial year. Further, if the recommendation related to maximum number of directorships to be implemented: The courtesy of the Companies Act and SEBI regulations already in place, there are presently not more than 2 persons who are holding more than 8 directorships.

Conclusion

SEBI has taken the charge since 1992 to control the securities market in India, and from that time onwards it has passed various regulations to facilitate effective control over the market in India. It has an objective for which it works efficiently. Protecting the rights of small investors is one of the main purposes of the SEBI, it also prohibits Insider Trading and also provides for various penalties in case where there is a breach of any provision. SEBI has two-fold function i.e. Protective as well Progressive. A quasi-judicial body in the name SAT was also established by it which adjudicates matters related to the securities market.