India

By Aparajita H Mannava (Associate, Real Estate and Corporate Practice) Despite the legal requirement to register Agreements to sell (“ATS(s)”), it is often seen in practice that ATSs are left unregistered for various reasons, including but not limited to (a) avoiding stamp and registration charges, (b) being unaware of the requirement to register ATSs or the significance thereof. Nonetheless, can such an unregistered ATS still confer some rights to the purchaser akin to contractual obligations? WHY REGISTER AN ATS? As per section 53A of the Transfer of Property Act, 1882 (“TOPA”), where transfer has not been completed in the manner prescribed by law under an instrument, and the transferee has performed or is willing to perform his part of the contract, then the transferor is debarred from enforcing against the transferee any right in respect of the immoveable property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract. In turn, contracts referred to in section 53A of TOPA are required to be registered under the Registration Act, 1908 (“Registration Act”)[1]. The Supreme Court has upheld this principle.[2], and as such, unregistered ATSs do not validly transfer the intended rights or title pertaining to the property. However, having paid the agreed consideration to the vendor, purchaser is at the risk of not being able to exercise their rights effectively. ADMISSIBILITY OF AN UNREGISTERED ATS AS EVIDENCE As per the Indian Stamp Act, 1899 (“Stamp Act”)[3], instruments not duly stamped cannot be admitted in evidence until proper stamp duty and penalties are paid. Although an unregistered ATS is inadmissible in evidence under the Stamp Act[4], it is not void[5]. Penalties for insufficient stamp duty can be up to ten times the duty payable on the consideration or market value, whichever is higher. Documents requiring both stamp duty and registration must meet these requirements to be admissible as evidence. An instrument, when certified by endorsement that proper duty and penalty have been levied and paid under the Stamp Act[6], such ATS is capable of being acted upon as if duly stamped[7]. SPECIFIC RELIEF Registration Act[8] provides that while a document that requires to be registered cannot be received in evidence unless it is registered, an unregistered document affecting the transfer of immovable property and required to be registered may be received as evidence of a contract in a suit for specific performance under the Specific Relief Act, 1877 or 1963 or as evidence of any collateral transaction not required to be effected by a registered instrument[9]. Further, the Supreme Court has held that once ATS is executed and the payment/receipt of advance sale consideration was admitted by the vendor, nothing further was necessary to prove by purchaser.[10]. The Supreme Court has held that.[11], [12], [13]: Subsistence of the contract is an essential precondition; (Note: This is also provided under the Contract Act[14], wherein: In contracts where time is of essence, and a party has failed to perform its obligations in the stipulated timeline, the contract, or such portion thereof, becomes voidable at the opinion of the promisee; and Vendors are responsible to notify the Purchaser their intent, if any, to discontinue the ATS. Subject to the limitation period prescribed under the Limitation Act[15], which mandates that a suit for specific performance must be filed within three years from the date fixed for performance or from the time when the performance is refused.) Relief of specific performance cannot be granted in case of failure to comply with the stipulated timelines of the contract, and termination of the said contract. Readiness and willingness to perform the plaintiff’s part of the essential terms of the agreement are essential[16], When ATS is terminated for non-performance on part of the purchaser, they are no longer a bona fide purchaser. CONCLUSION An unregistered ATS cannot legally transfer any property, and cannot be enforced to the fullest extent. However, the Purchaser can sue the vendor for specific performance, and is entitled to a refund of the monies paid to the vendor. Purchaser must, however, (a) be mindful of the limitation period, and (b) must demonstrate willingness and ability to pay and perform his obligations in a timely manner. [1] Section 17 (1A) of the Registration Act. [2] As held by the Supreme Court in Shakeel Ahmed v. Syed Akhlaq Hussain [2023 SCC OnLine SC 1526]. [3] Sections 33 and 35 of the Stamp Act. [4] Section 35 of the Stamp Act. [5] As held by the Supreme Court in Jupudi Kesava Rao v. Pulavarthi Venkata Subbarao and others [1971 AIR 1070]. [6] Sections 35, 40 or 41 of the Stamp Act. [7] This principle has been upheld by (a) the High Court of (United) Andhra Pradesh in Linkwell Electronics Limited v. AP Electronics Development Corporation Limited [1997(3) ALD 336], and (b) by the Supreme Court In RE: Interplay Between Arbitration Agreements Under The Arbitration and Conciliation Act 1996 and The Indian Stamp Act 1899, in Curative Petition (C) No. 44 of 2023 in Review Petition (C) No. 704 of 2021 in Civil Appeal No. 1599 of 2020, and with Arbitration Petition No. 25 of 2023. [8] Section 49 of the Registration Act. [9]As also held by the Supreme Court of India on April 10, 2023 in R. Hemalatha v. Kashthuri [(2023) 10 SCC 725].    [10] Section 49 of the Registration Act. [11] P. Ramasubbamma v. V. Vijayalakshmi [(2022) 7 SCC 384]. [12] As held by the Supreme Court on August 10, 2023 in Alagammal and others. v. Ganesan and another [2024 SCC Online SC 30]. [13] As held by the Supreme Court in I.S. Sikandar (deceased) (represented by legal representatives). & others v. K. Subramani & others [AIRONLINE 2013 SC 32]; As also held by the Supreme Court of India in Sabbir (deceased) (through legal representatives) v. Anjuman (since deceased) (through legal representatives) [2023 SCC Online SC 1292]. [14] Section 55 of the Contract Act. [15] Article 54 of the Schedule of the Limitation Act. [16] As also provided under (a) section 16 of the Specific Relief Act, 1963 and (b) section 53A of TOPA

By Midakanti Sai Keerthana, Intern Introduction: The Insolvency and Bankruptcy Code, 2016 (IBC) is a single law that lays down clear, time-bound rules for how companies, partnerships and even individuals in India can deal with financial stress (When they can’t pay debts). It replaced the earlier system where the person who owed money (debtor) stayed in control, with a creditor-in-control system – meaning lenders/creditors decide the company’s fate during insolvency. The IBC, 2016, aims to address the problems of distressed assets in a time-bound manner by maximising the value of assets and balancing the interests of the creditors. But the journey from paper to practice wasn’t smooth. The promise of speed and predictability was diluted by repeated litigation, inconsistent judicial interpretations, and procedural bottlenecks. Instead of a creditor-driven framework, delays and uncertainty began creeping in. The wide judicial discretion of NCLT in admission and rejection of CIRP, even when both the debt and default are established, has added to the prolonged delay. The discretion was expanded by the Vidarbha Industries Judgment, allowing the NCLT to consider matters other than the debt and default in deciding the CIRP applications, which, in a way, enabled the debtors to delay the insolvency proceedings through unnecessary litigation, diluting the code’s objective. The IBC Amendment Bill, 2025, introduced in the Lok Sabha on 12th August 2025, aims to resolve these ambiguities, streamline and expedite the resolution in a time-bound manner, reducing any frivolous and vexatious litigation and align the Indian insolvency with the International best practices. The bill aims to restore the IBC’s original goal of efficient, transparent, and time-bound resolution of insolvency. Pre-Amendment Challenges in Insolvency Initiation: Prior to the 2025 amendment, IBC 2016 was hampered by frequent delays in case admission, conflicting judicial rulings, and heavy backlogs at NCLT, all of which led to unpredictable and slow insolvency resolutions. The code originally required NCLT to admit a financial creditor’s application once debt and default were proven. However, the Supreme Court’s judicial interpretations in the case of Vidarbha Industries Power Ltd. vs. Axis Bank Ltd. vested excessive judicial discretion in the NCLT regarding the admission or rejection of the CIRP application, even if a default was proven. This meant companies could delay insolvency proceedings by showing possible future inflows or awards. The mechanical, time-bound admission process turned into a subjective evaluation, undermining creditor rights. Section 7(5)(a) of the Code has used the word “may” instead of “shall”, which provides NCLT with the discretion to reject an application even if the twin conditional requirement of a debt and default on the part of the corporate debtor (CD) is established by the financial creditor (FC). Though the Court has specifically held in this judgement that “Even though Section 7 (5)(a) of the IBC may confer discretionary power on the Adjudicating Authority, such discretionary power cannot be exercised arbitrarily”. In the Rainbow Paper case - Upsetting the Waterfall Section 53 of the IBC clearly placed secured financial creditors at the top of the repayment waterfall, while government dues ranked much lower. But in State Tax Office vs Rainbow Papers Ltd., the Supreme Court held that government tax claims could be treated as “secured” if state laws created a first charge. This elevated statutory dues to the level of secured banks, creating massive uncertainty for lenders and threatening credit flow to businesses. Videocon Group Insolvency – No Framework for Group Resolution The IBC did not have well-defined provisions and processes for dealing with complicated insolvency situations, like group insolvency and cross-border insolvency. Large business groups often operate through multiple interlinked entities. In the Videocon case, NCLT had to consolidate 13 companies under one process for the resolution to work. While practical, this was done in the absence of a framework for group insolvency. This legal vacuum raised concerns for investors and buyers about the predictability of outcomes.    

By Madala Bindu, Associate, Litigation & Sapavat Teja, Intern, DNLU, Madhya Pradesh. Introduction: The fundamental objective of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (From here referred to as “SARFAESI Act”), 2002, is to empower banks and financial institutions to recover their dues while ensuring that the borrower’s right to fair procedure is not infringed. Broadly, the redemption of mortgaged property is governed under Section 60 of the Transfer of Property Act, 1882[1], read with Section 13(8) of the SARFAESI Act, 2002[2], whereby the borrower is entitled to redeem the secured asset by paying the outstanding dues. In recent times, the Hon’ble Supreme Court of India in the case of M. Rajendran and Ors. v. KPK Oils and Protiens India Pvt. Ltd. and Ors.[3], has reaffirmed that the right of redemption under section 13(8) of the SARFAESI Act, 2002, stands ceased upon the publication of Auction Notice under Rule 9(1) of the Security Interest (Enforcement) Rules, 2002[4]. Whereas the Amendment to the SARFAESI Act, 2016, clarified that the right of redemption of a secured asset stands extinguished upon the publication of the auction notice, and not at the stage of execution of the sale, such clarification shall apply mutatis mutandis to loans availed prior to the said amendment. Analysis of Judgement: KPK Oils and Proteins India Pvt. Ltd. and others availed loan facilities comprising a cash credit limit of approximately Rs. 5 crores along with a term loan of Rs. 30 lakhs, secured by an equitable mortgage, from the bank on 6th January, 2016. On 31st December 2019, the borrower’s loan account was classified by the Bank as a Non-Performing Asset (NPA) due to the borrower's failure to repay the outstanding dues. The Bank issued a demand notice under Section 13(2) of the SARFAESI Act as well as a possession notice under Section 13(4) of the Act on 28th October, 2020. Subsequently, an auction sale notice was published in newspapers on 31st October, 2020. During the auction, the Appellants placed as the highest bidder and deposited the full amount, which resulted in the issuance of a sale certificate. After the sale was confirmed, the borrowers deposited a significant portion of the dues. Thereafter, litigation arose before the Debts Recovery Tribunal (DRT), followed by a writ petition filed by the borrowers before the Hon’ble High Court of Madras seeking redemption of the mortgage. Pursuant to which an appeal before the Hon’ble Supreme Court has been filed regarding a discrepancy between the SARFAESI Act and the Security Interest (Enforcement) Rules, 2002, upon procedural steps under Rules 8 and 9 of the Rules. The Hon’ble Supreme Court held that the expression ‘notice of sale’ must be construed as a composite concept, encompassing service to the borrower, publication in a newspaper, affixation, and uploading, as mandated under the provisions, Rule 8(6), its Proviso, Rule 8(7), and Rule 9(1) of Security Interest (Enforcement) Rules, and elucidated that these are not separate or distinct notices but parts of a single composite process required for a valid sale under Rule 8(5) Security Interest (Enforcement) Rules. The Court harmonised Rule 9(1) of the Security Interest (Enforcement) Rules, which mandates a 30-day gap from publication to sale, read with Section 13(8) SARFAESI Act, 2002, by clarifying that the thirty-day period begins from the latest date of publication, service, or affixation, depending on the applicable mode of sale. However, the Court rejected the contention that the auction sale notice and the notice to the borrower are separate, emphasising that Appendix IV-A to the Rules underscores their unified character within the same procedural framework. In conclusion, the Hon’ble Supreme Court has reaffirmed that the principal object of the SARFAESI Act to facilitate swift and effective enforcement of secured interests must not be compromised by procedural inconsistencies. At the same time, it preserves the borrower’s legitimate right to redemption within the statutory limits. The Court’s pronouncement conclusively clarifies that the mortgagor’s right of redemption stands extinguished prior to the publication of the sale notice, irrespective of the mode of sale undertaken. By declaring that a single composite notice suffices to meet the statutory requirement, the judgment harmonises conflicting judicial views previously adopted by various High Courts. Furthermore, it ensures certainty for auction purchasers by upholding that their acquired rights, arising from a valid and duly conducted auction process, remain unaffected by any subsequent borrower payments. [1] Transfer of Property Act, § 60, Act 4 of 1882. [2] Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, § 13, cl. 8. [3] (2025) ibclaw.in 367 SC [4] Security Interest (Enforcement) Rules, § 9, cl. 1.

By V.V.S.N. Raju and Nivedita Jha The concepts of oppression and mismanagement plays a crucial role in maintaining corporate governance and protecting the interests of shareholders, particularly minority shareholders, in a company. The Companies Act, 2013, provides mechanisms to address issues arising from actions that are oppressive or amount to mismanagement of the company's affairs. This article explores the legal framework surrounding these concepts, focusing on key judicial decisions that have shaped the interpretation and application of the law. Oppression in company law refers to conduct that is burdensome, harsh, and wrongful to shareholders. As defined in Black's Law Dictionary, it is "the act or an instance of unjustly exercising authority or power; unfair treatment of minority shareholders (especially in a close corporation) by the directors or those in control of the corporation." The legal framework for addressing oppression is primarily found in Section 241 (formerly Section 397 of the Companies Act, 1956) of the Companies Act, 2013. This section gives members of a company the right to apply to the Company Law Board (CLB) for relief if the company's affairs are being conducted in a manner oppressive to any member or members. Hon’ble Supreme Court of India in the case of Needle Industries (I) Limited v. Needle Industries Newey (I) Holding Limited (1981 AIR 1298) held that the acts which are Burdensome, harsh and wrongful indicates that it is synonymous with the term oppressive manner. A separate act may be against the law, but it cannot be said to be oppressive if it does not have mala fide intention cloaking it or if the act was harsh, burdensome and wrongful. If there are multiple illegal acts, it automatically means that all the acts were a part of one action with the motive to oppress the persons against whom the acts have been done. The person claiming oppression against another party has the duty to prove in which way the act of oppression led him to compromise on his decision and submit to an act lacking integrity, an act which is prima facie unfair and further on how it has affected his proprietary rights. The Supreme Court, in the landmark case of Shanti Prasad Jain v. Kalinga Tubes Limited (AIR 1965 SC 1535), established that for conduct to be considered oppressive: It must be burdensome, harsh, and wrongful. Mere lack of confidence between majority and minority shareholders is not enough. The lack of confidence must spring from oppression of a minority by a majority in the management of the company's affairs. It must involve at least an element of lack of probity or fair dealing concerning a member's proprietary rights as a shareholder. This principle has been consistently applied and refined in subsequent cases. For instance, in Elder & Watson Limited Lord Cooper (1952 SC 49 (Scotland)) emphasized that oppressive conduct should "involve a visible departure from the standards of fair dealing, and a violation of the conditions of fair play on which every shareholder who entrusts his money to a company is entitled to rely."  Continuous Nature of Oppressive Acts “It's important to note that oppression must be a continuous process, not isolated events. This principle was reinforced in the case of Cyrus Investments Private Limited and others. v. Tata Sons Limited (2021 SCC OnLine SC 272).  In the case of Sangramsinh P. Gaekwad and others v. Shantadevi P. Gaekwad (Dead) (through legal representatives) and others (2005) 11 SCC 314), which emphasized that for invoking provisions related to oppression and mismanagement, there must be a continuous act on the part of the majority shareholders, continuing up to the date of the petition. Isolated incidents spread over a period of time may not be sufficient to establish oppression or mismanagement. Examples of Oppressive Conduct Oppression can manifest in various forms, including: Excluding minority shareholders from the company's affairs; Issuing shares to dilute minority shareholding; Misuse of company funds for personal benefit; and Denying access to company information. However, it's crucial to note that not all unfavourable decisions constitute oppression. In Venus Petrochemicals (Bombay) Private Limited v. Niranjan Kumar Agarwal (2015) 3 SCC 726), the court clarified that appointing or not appointing directors alone doesn't constitute oppression, and non-declaration of dividends isn't automatically oppressive. This ruling reinforces the principle that business decisions, if made in good faith, are not inherently oppressive. Mismanagement Definition and Scope Mismanagement refers to conduct that results in: Material change in the management or control of the company; Substantial impairment of the company's financial position; and A change in the board of directors prejudicial to the company's interests. The Ram Parshotam Mittal and Others v. Hotel Queen Road Private Limited and Others (2019) SCC OnLine NCLAT 447.) The case illustrated that mismanagement can take various forms, including failure to notify directors of board meetings, directors participating in decisions affecting their own interests, and illegal share transactions. Distinguishing Mismanagement from Oppression While oppression focuses on unfair treatment of shareholders, mismanagement relates to improper conduct in managing the company's affairs, which may or may not directly oppress shareholders. However, both concepts are often interlinked in practice. The Concept of "Unfair Prejudice" The Companies Act, 2013, introduced "unfair prejudice" as a separate ground for relief, distinct from oppression. Section 241(1)(a) uses the expression "prejudicial or oppressive" disjunctively, empowering shareholders to bring action not only for oppressive acts but also for those that are unfairly prejudicial. The Vikram Bakshi case (2019 SCC OnLine NCLAT 754) aligns with the principle mentioned in the Sangramsinh P. Gaekwad case, which emphasizes that oppression must be a continuous act up to the date of the petition. Types of Prejudice Public Prejudice: Actions against public interest in general; and Commercial Prejudice: Actions affecting the legitimate expectations of shareholders. The V.S. Krishnan v. Westfort Hi-tech Hospital Limited (2008) 3 SCC 363 case provided some guidance on this concept, stating that "even conduct that is legally permissible may be oppressive if it is against probity, good conduct or is burdensome, harsh or wrong or is mala fide or for a collateral purpose." Remedies and Powers of the Tribunal The National Company Law Tribunal (NCLT) has wide-ranging powers under Section 242 (formerly Section 402) to provide remedies in cases of oppression and mismanagement. These powers include: Regulating the conduct of the company's affairs in the future Making changes to the company's memorandum and articles Appointing directors or removing existing ones Setting aside or modifying agreements made by the company The NCLT can provide these remedies as an alternative to winding up the company when: The company is a going concern; Shareholders have invested substantial amounts, and Winding up would result in unfair prejudice In considering whether to order winding up, the Tribunal must balance the interests of the applicant shareholders with those of the remaining shareholders. As noted in the Sangramsinh P. Gaekwad case, "The interest of the applicant alone is not of predominant consideration. The interests of the shareholders of the company as a whole, apart from those of other interests, have to be kept in mind at the time of consideration as to whether the application should be admitted." Venus Petrochemicals (Bombay) Private Limited Case: A Landmark in Oppression and Mismanagement Jurisprudence Background of the Case Venus Petrochemicals (Bombay) Private Limited was a family-owned business incorporated in 1995. The company's shares were equally divided between two families led by brothers Sunil M. Thakkar and Atul M. Thakkar. The dispute arose in 2015 when Atul M. Thakkar attempted to change the equal representation on the Board of Directors by appointing his son while denying similar appointments to Sunil M. Thakkar's family members. Appointment of Directors The court clarified that the mere act of appointing or not appointing directors doesn't automatically constitute oppression. This ruling demonstrates that: The act of “oppression and mismanagement should be prejudicial to a member of the company and not against the director of the BoD. Technically and legally speaking, the appointment and removal of directors cannot be treated as an act of “oppression and mismanagement. Financial Decisions and Dividend Distribution The court held that the non-declaration of dividends, being a financial decision, is not automatically considered oppressive. This ruling: Aligns with the concept that oppression must involve a lack of probity or fair dealing in relation to shareholders' rights. Continuous Nature of Oppressive Acts The court's examination supports the principle that oppression must be a continuous act: Isolated incidents are generally insufficient to establish oppression. There must be a pattern of behavior that consistently prejudices minority shareholders. Quasi-Partnership in Family-Owned Businesses The court considered whether the company operated as a quasi-partnership, clarifying that: Being family-controlled doesn't automatically make a company a quasi- partnership. The intentions and understanding between parties are crucial in determining the nature of the business relationship. Misuse of Casting Vote The court's examination aligns with the principle that even legally permissible actions can be oppressive if against probity and good conduct.  The manner in which power is exercised, even if technically legal, can be scrutinized for fairness. The Adjudicating Authority took a decision to remove the casting vote in these extraordinary circumstances, which created a company imbalance by one set of 50% shareholders taking all decisions for their own benefits and denying any right to the other 50% shareholders. Unfair Prejudice While primarily about oppression, the case indirectly touches on the concept of "unfair prejudice": Actions can be prejudicial to the interests of some members even if they don't rise to the level of oppression. Implications and Significance The case emphasizes the need to balance the rights of majority shareholders to manage the company with the protection of minority shareholders from unfair treatment. It underscores the need for a holistic, continuous assessment of company affairs rather than focusing on isolated incidents when determining oppression. The case contributes to an expanded understanding of oppression and mismanagement, moving beyond just illegal actions to consider the fairness and probity of technically legal actions. The Venus Petrochemicals case serves as a significant benchmark in the evolving jurisprudence of oppression and mismanagement under Indian company law. It reinforces the idea that determining oppression requires a careful examination of conduct, its continuity, and its impact on shareholders' rights, aligning with and expanding upon the foundational principles established in earlier landmark decisions. Conclusion The Venus Petrochemicals case serves as a significant benchmark in the evolving legal landscape of oppression and mismanagement under Indian company law. It reinforces the idea that determining oppression requires a careful examination of conduct, its continuity, and its impact on shareholders' rights, aligning with and expanding upon the foundational principles established in earlier landmark cases. Recent cases like Venus Petrochemicals and Cyrus Investments demonstrate that courts are moving towards a more nuanced understanding of oppression and mismanagement. This approach considers not just the legality of actions, but also their fairness and impact on shareholders' rights. In conclusion, while the law provides robust protections against oppression and mismanagement, each case must be analysed on its own merits, considering the specific circumstances, the nature of the alleged oppressive acts, and their impact on the shareholders and the company as a whole. As corporate structures and practices continue to evolve, so will the interpretation and application of these vital legal principles.