Corporate Insolvency Resolution Process (CIRP)
The IBC, 2016, provides a time-bound process for resolving corporate insolvency. Advocate Shaw represents:
Financial Creditors (Section 7): Banks, NBFCs, and other financial creditors filing CIRP applications against corporate debtors. The application must establish the existence of a financial debt and a default above the minimum threshold (currently Rs. 1 crore).
Operational Creditors (Section 9): Suppliers, service providers, and other operational creditors seeking to recover unpaid dues. The operational creditor must first send a demand notice under Section 8, and the corporate debtor has 10 days to respond.
Corporate Debtors (Section 10): Companies filing for voluntary insolvency when they are unable to pay their debts.
Resolution Professionals (RP): Advising RPs on the conduct of CIRP, including constitution of the Committee of Creditors (CoC), inviting resolution plans, and managing the company as a going concern.
Resolution Applicants: Representing potential resolution applicants in bidding for stressed assets and negotiating resolution plans.
Defending Corporate Debtors: Opposing CIRP applications on grounds that there is no debt, no default, or that the application is a pressure tactic in a genuine dispute.
Oppression and Mismanagement Petitions
Sections 241-246 of the Companies Act, 2013, provide relief to shareholders when the affairs of the company are conducted in a manner prejudicial to the interests of the company, its shareholders, or the public interest. Advocate Shaw handles:
Filing Petitions: On behalf of minority shareholders who are being oppressed or whose interests are being compromised by the majority.
Defending Petitions: On behalf of majority shareholders and management against frivolous or motivated petitions.
Interim Relief: Seeking interim orders — stay on board meetings, restraint on alienation of assets, appointment of observer — to protect the company during litigation.
Settlements: Facilitating settlements through buyout of minority shares or restructuring of management.
Waiver of Minimum Shareholding Requirement: Under Section 244, a petitioner must hold at least 10% of the issued share capital (or 1/10th of the total members, whichever is less) to maintain an oppression and mismanagement petition. The NCLT can waive this requirement. Advocate Shaw argues waiver applications effectively.
Schemes of Arrangement — Mergers and Amalgamations
Corporate restructuring through mergers, amalgamations, demergers, and compromises requires NCLT approval. Advocate Shaw handles:
Drafting the Scheme: Working with financial advisors to draft a scheme that is fair to all stakeholders.
Filing the Application: Filing the scheme application (Company Application) before the NCLT, along with all requisite documents — board resolutions, valuation reports, auditor's certificates, and the scheme document.
Meetings of Shareholders and Creditors: Convening and conducting meetings for approval of the scheme.
Notice to Regulatory Authorities: Serving notice on the ROC, the Income Tax Department, SEBI (for listed companies), the RBI (where applicable), and other regulators.
Final Hearing: Arguing for sanction of the scheme, addressing objections from stakeholders or regulators.
Post-Sanction Compliance: Filing the sanctioned scheme with the ROC and completing the necessary filings.
Appeals to NCLAT and Supreme Court
Orders of the NCLT can be appealed:
NCLAT (National Company Law Appellate Tribunal): An appeal lies to the NCLAT within 45 days (extendable by 45 days). The NCLAT has its principal bench in New Delhi, but hearings can be conducted through video conferencing.
Supreme Court: A further appeal lies to the Supreme Court under Section 62 of the IBC (or Section 423 of the Companies Act) on questions of law.
Advocate Shaw handles appeals at both levels, either through his own practice or through associate advocates in New Delhi.