Section 10A Of The IBC: A Constitutional Aberration Or Economic Necessity?

Banking & Finance laws By 0

This article critically examines Section 10A of the Insolvency and Bankruptcy Code, 2016 (IBC), which was introduced as a pandemic-era measure to temporarily suspend the initiation of Corporate Insolvency Resolution Process (CIRP) under Sections 7, 9 and 10. While Parliament’s intention was to provide relief to businesses facing financial hardship during COVID-19, the broad wording of the provision, particularly the phrase “shall ever be filed”, resulted in a permanent and retrospective prohibition on creditors applications for default that occurred during the specified stay period. The article argues that such a blanket prohibition, without any leeway for judicial discretion or revival of claims, creates procedural and constitutional anomalies. It disproportionately restricts the rights of creditors, undermines the legislative balance envisaged by Sections 7 and 9 and violates Articles 14 and 21 of the Constitution by encouraging arbitrariness and denying access to justice. Through a doctrinal and jurisprudential analysis of the main decisions of the Hon’ble Supreme Court, the National Company Law Appellate Tribunal (NCLAT) and the National Company Law Tribunal (NCLT), this artilce highlights the inconsistencies of interpretation and practical challenges in determining the date of default and the applicability of Section 10A. In addition, it draws on comparative perspectives from jurisdictions such as the United Kingdom, the United States and Singapore, which have implemented more balanced insolvency responses to the pandemic. In conclusion, the article proposes legislative reform, including the insertion of a revitalization mechanism or sunset clause, and recommends a judicial review of the constitutional validity of section 10A in order to restore fairness and consistency in the insolvency framework.

Safeguarding Electrical Brand Legacy: Key Insights from the GM vs. GMW Rectification Petition

Intellectual Property By 0

This case revolves around a rectification petition under Section 57 of the Trade Marks Act, 1999, where the petitioner sought the cancellation or removal of the respondent’s trademark ‘GMW’ in Class 11, arguing it was deceptively similar to their own ‘GM’ marks used since 1999 in the electrical goods sector. The court, presiding over an ex-parte proceeding due to the respondent’s non-appearance, emphasized the overriding principle that prior adoption and continuous use, backed by substantial goodwill evidenced through sales and registrations, prevail over later registrations that could lead to confusion or passing off.

Hempushpa vs. Activepushpa: Unpacking the Phonetic Similarity Ruling

Intellectual Property By 0

The court ruled in favor of the petitioner, emphasizing how extensive historical usage and acquired reputation can trump subsequent registrations that appear to capitalize on established goodwill. This decision not only reinforces the protective mechanisms of the Trade Marks Act but also highlights the judiciary’s role in maintaining the purity of the trademark register by eliminating marks that could lead to consumer confusion and unfair trade practices. At its core, the case illustrates the delicate balance between innovation in branding and the safeguarding of legacy marks in competitive markets like pharmaceuticals and ayurvedic products, where phonetic and structural similarities can easily mislead the average consumer.