SKS Partners

Case Studies

Case 8 - Issue : Directors cannot be made liable for the criminal acts of the Company


Forum : Bombay High Court


Case synopsis : Our client, the appellants, were Directors In a company that had issued cheques In relation to commercial transactions that had taken place between the company and the other party. The negotiable instrument bounced; proceedings were Initiated against the company, Directors and our clients. A decree was passed wherein our clients and the company were required to make good the amount to the


Solution : We suggested that an appeal be Tiled against the decree and establish that the Directors’ liability is different from that of the Company and that the decree was not maintainable against our client even If they were the Directors. The matter was decided in favor of our client. The Hon’ble Bombay High Court passed an order that the decree should not be pressed against our client and could be executed against the Company.


Case 7 - Issue : Valid issuance of a tender by the tendering authority


Forum : Punjab and Haryana High Court


Case synopsis : A writ petition was filed before the Hon’ble High Court of Punjab and Haryana, wherein the tender conditions in the tender floated by our client, a governmental undertaking, for LiDar aerial survey of land. The tender floated by our client was challenged for alleged restrictive conditions in the tender documents. It was further alleged that the tender conditions were favorable to a niche.


Solution : Our objective was to get the petition dismissed on the first Instance by convincing the court of a technical legal point that the tendering authority was the best judge to decide on the relevant conditions while floating the tender. We were able to convince the court that the matter was pre mature.


We also demonstrated that the tender conditions were not restrictive and that the tender conditions were suitably justified without favoring any niche.


Case 6 - Issue : Valid issuance of a tender by the tendering authority


Forum : Delhi High Court


Case synopsis : The matter pertained to a dispute concerning the tender floated by our client, a government undertaking. The dispute was raised by the L2 bidder. According to the L2 bidder, there was a breach In the tender of essential conditions. The award of the contract to the L1 bidder by our cllent was also challenged. The L2 bidder also challenged the process of selection and the selection basis.


Solution : The L1 bidder did not submit an essential annexure forming a part of the tender documents; the contents of the annexure could be found In other documents comprising the tender documents. Our commercial and practical approach in convincing the court that even if the specific document was not signed but having regard to the other documents submitted It could be inferred that the L1 accepted the conditions. Hence, the approach of the tendering authority was not arbitrary. We succeeded in convincing the court that the decision making process was multifold and there was no arbitrariness In L1 bidder selection. The division bench of the High Court of Delhi held that there was no material breach, unreasonableness, bias or malafides in awarding the tender to L1. The matter was adjudicated in favour of our client.


Case 5 - Issues : Recovery of money invested in a real estate project


Forum : Various Judicial fora in Kolkata including the Calcutta High Court


Case synopsis : Our client, an Indian conglomerate, had invested in a proposed real estate project of a premier real estate giant in Kolkata. However, the developer’s position deteriorated thereafter. The project ( funded by one of India’s largest NBFCs, became non-starter ).


Solution : The client approached us to suggest ways to recover their money. Multiple companies of our client’s group were involved. The case appeared complicated as the amount was large, a number of winding up applications were pending against the real estate company and there were no visible assets available for recovery. The litigation strategy involved identification of the party / assets that could be legally claimed for recovery. Multiple litigations were involved in multiple for a; notices were issued on the identified solvent party, otherwise a known party to the transaction. The complex legal strategy empowered our client to negotiate and arrive at a mutually acceptable settlement.


Case 4 - Issues : Participation of absconding director in an ongoing investigation to safeguard the interest of the company


Forum : Calcutta High Court; Delhi High Court


Case synopsis : Our client, a financial institution who had advanced facility to a company, had initiated proceedings against the company in New Delhi. As a result of such proceedings criminal case was filed and warrants were issued against the absconder directors. Delhi Police raided the premises of the company and arrested the absconder director at Kolkata. However, the director was granted bail within a fraction of hours. Case was filed against Delhi police in Kolkata by the company and its directors.


Solution : We were engaged by the financial institution with the mandate that they wanted an out of court settlement and recovery. Strategies were decided and implemented by us to the effect that the absconder director that was granted bail participates in investigation in Delhi before the Delhi police and approaches our client for settlement. As a result of our combined commercial and litigation strategy within a span of 8-10 weeks the settlement was arrived, and we could deliver what was expected by the client.


Case 3 - Issue : Execution of a foreign arbitral award before the Indian court


Forum : Calcutta High Court


Case synopsis : Our client, an Indian conglomerate, suffered an award from a foreign arbitral tribunal, which came up for execution before the Hon’ble High Court in Calcutta. We were engaged for defending our client and their Directors in the execution proceedings.


Solution : We examined the award in detail and advised to contest the award and simultaneously pursued for an out-of-court settlement. The strategies resulted in the matter being settled out-of-court without any coercive action taken against the company or its Director. The office premises, sealed on the basis of an ex parte order, was unsealed. The decree was satisfied with the settlement amount and the party parted ways on a happy note. This resulted in a settlement of the dispute by paying an amount less than the amount awarded by the foreign arbitral tribunal resulting in client benefit within the shortest possible time, which could have lingered around in the court for years at a large cost implication.


Case 2 - Issue : Wilful default by the promoter / director of a company


Forum : Calcutta High Court; wilful defaulter committees of banks


Case synopsis : Our client, a renowned businessman and industrialist, was the promoter of a company that availed of financial assistance from various banks and financial institutions. The Company defaulted in loan repayment. One bank issued a showcause notice declaring our client as a wilful defaulter on the alleged ground of funds diversion, among others.


Solution : We challenged the showcause notice on the grounds of natural justice. We made out a representation challenging the classification of our client as a wilful defaulter. The issuance of notice was held to be without jurisdiction by the Hon’ble Single Bench of the Calcutta High Court.


Case 1 - Issue : Issuance of a Red Corner Notice in connection with an alleged crime committed by an Indian national


Forum : Interpol


Case synopsis : A Red Notice was issued by INTERPOL against our client in connection with a criminal case initiated outside India. A Red Corner notice sought the location and arrest of the person named in the notice for prosecution or serving a sentence.


Solution : We examined the issued notice and discerned technical errors. The objective was to get the notice deleted since it was not connected to ongoing disputes concerning our client. We also made a case that the jurisdiction exercised by the complainant was illegal and bad in law. The strategy was to challenge the issuance of notice before INTERPOL in their foreign jurisdiction rather than recourse to Indian authorities. We were successful in getting the notice quashed and deleted from the INTERPOL database within the shortest time possible based upon our findings and advice.