JAN2013-INST16A.qxd 1/5/2013 5:55 PM Page 1 JAN2013-INST16A.qxd 1/5/2013 5:55 PM Page 2 JAN2013-INST16A.qxd 1/5/2013 5:55 PM Page 3 The Council ISSN 0972-1983 R 01 President Nesar Ahmad CHARTERED SECRETARY Vice President [ Registered under Trade Marks Act, 1999 ] S. N. Ananthasubramanian Vol. : XLIII No. 01 Pg 01-136 JANUARY - 2013 Members (in alphabetical order) Anil Murarka Ardhendu Sen From the President & 06 Arun Balakrishnan Ashok Kumar Pareek Legal World & 72 (LW-01-12) Atul Hasmukhrai Mehta Atul Mittal From the Government & 84 (GN-01-21) B. Narasimhan Gopalakrishna Hegde News from the Institute & 106 Harish Kumar Vaid P. Sesh Kumar Our Members & 136 Pradeep Kumar Mittal Renuka Kumar (Ms.) Sanjay Grover 498 ( A 01-45 ) Sridharan R Articles Sudhir Babu C Resolution versus creditor rights: India strongly needs to tame SARFAESI Act 14 U D Choubey (Dr.) Restructuring and Insolvency 19 Umesh Harjivandas Ved Vikas Yashwant Khare Will NCLT Prove to be the Panacea for Sick Industries? 22 Schemes of Arrangement - Fairness Rules the Roost 26 Secretary & Corporate Restructuring Would Court Lift Veil? 33 Chief Executive Officer Intangible Assets - Impact on Mergers and Amalgamations 37 N. K. Jain (upto 31.12.2012) Corporate Restructuring and Insolvency 41 Secretary M. S. Sahoo (w.e.f. 01.01.2013) Corporate Restructuring and Insolvency 46 Procedural Aspects including documentation forMergers and Amalgamations 51 Chief Executive Sutanu Sinha (w.e.f. 01.01.2013) Annual Subscription Editorial Advisory Board Inland : Rs. 1000 (Rs. 500 for Students of the ICSI) Foreign : $100; £60 (surface mail) Single Copy : Rs. 100 Members (in alphabetical order) Chartered Secretary is normally published in the first week of every month. Non- receipt of any issue should be notified within that month. D.P. Dash Articles on subjects of interest to company secretaries are welcome. G.R. Bhatia Views expressed by contributors are their own and the Institute does not accept Girish Ahuja (Dr.) any responsibility. The Institute is not in any way responsible for the result of any Harish K. Vaid action taken on the basis of the advertisement published in the journal. All rights reserved. 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Padmanabhan 01 CHARTERED SECRETARY January 2013 JAN2013-INST16A.qxd 1/5/2013 5:55 PM Page 4 ICSI IMAGES 01 02 03 04 05 06 07 08 Meeting of ICSI delegation with Hon'ble Governor of Maharashtra - Standing from ICSI-WIRC - 41st Foundation Day Celebrations - Inauguration - Lighting of Lamp by 01 Left: N.K. Jain, Mahavir Lunawat, S.N. Ananthasubramanian, K. Sankaranarayanan 02 S.N. Ananthasubramanian. Others standing from Left: Keyoor Bakshi, Mahavir (Hon'ble Governor of Maharashtra), Nesar Ahmad and Sutanu Sinha. Lunawat, P.K. Malhotra (SAT Presiding Officer), Ashish Chauhan (CEO, BSE), B. Narasimhan and S.M.A. Milath (RD, MCA). ICSI- WIRC - Inauguration of New Chapter Office at Bhayander - Sitting on the dais ICSI-NIRC and ICSI-CCGRT - Joint Seminar on Turnaround Management & 03 from Left: Sunil Khandelwal (Corporator, Mira-Bhayander Municipal Corporation), 04 Corporate Restructuring - Inaugural Session - Nesar Ahmad addressing. Others Catleen Pereira (Mayor, Mira-Bhayander Municipal Corporation), Nesar Ahmad, S.N. sitting on the dais from Left: Ranjeet Pandey, Rajiv Bajaj, S.N. Ananthasubramanian, M.S. Sahoo and Mahavir Lunawat. Ananthasubramanian, Atul Mittal and NPS Chawla. ICSI-WIRC - Revival of ICSI-WIRO Library - A glimpse of the meeting in progress. Opening of Revived ICSI-WIRO Library - From Left: Mahavir Lunawat, S.N. 05 06 Ananthasubramanian, Nesar Ahmad and M.S. Sahoo cutting the ribbon to mark the opening of the library. Institute of Chartered Secretaries of Bangladesh (ICSB) - Fourth National 07 Convention on Modernization of the Companies Act: Enhancing Good Governance - SIRC - Madurai Chapter - ICSI - CII Joint Interaction Meeting with President, The Nesar Ahmad addressing. Others sitting on the dais from Left: Md. Shahid Farooqui 08 ICSI - Nesar Ahmad addressing. Others sitting from Left: Kathir Kamanathan ( VP, (Sr. VP, ICSB), Mohd. Sanaullah (President, ICSB) and M. Naseemul Hye (VP, ICSB). CII Madurai Zone) and S Kumararajan. 02 January 2013 CHARTERED SECRETARY JAN2013-INST16A.qxd 1/5/2013 5:55 PM Page 5 At a Glance Articles (A 01 - 45) P-14 Schemes of Arrangement - P-26 Fairness Rules the Roost Resolution versus creditor rights: India P-14 Dr. K. S. Ravichandran rofessional practitioners such as the Company Secretaries, Chartered strongly needs to tame SARFAESI Act P Accountants and Lawyers have a larger role to play to ensure that schemes prepared and presented by them not only adhere to the applicable Vinod Kothari and Soma Bagaria provisions of law but also they are intended to achieve genuine business goals esolution of sickness, liquidation and enforcement of security interests in the most transparent manner. Fairness must rule the roost. Therefore R need a balance. Enforcement of security interests is a topical remedy, company secretaries who may form part of the core team of advisors preparing while liquidation is a holistic remedy. Before either of these, the possibility of and presenting schemes owe a duty to ensure that they understand all the revival of a bankrupt entity need to be evaluated, as the society cannot afford aspects of the scheme rather than listing down procedural steps involved and to kill businesses which have a chance of survival. Unbridled enthusiasm in ensuring compliances. enforcing the provisions of the SARFAESI Act has created a situation where the very philosophy of revival of companies has been put to question. We have long ignored the need for a comprehensive reform of bankruptcy laws, Corporate Restructuring Would P-33 and depended on piecemeal changes in law, as also on judicial precedents, Court Lift Veil? for such important issues as priorities of claims, conflicting needs of revival and liquidation, etc. Vivek Sadhale and Anand Chapekar he basic objective of forming a company is to shield the personal assets T of the shareholders from unlimited liability for the acts of the company. Restructuring and Insolvency P-19 With all the advantages available to the corporate form of entity, it must also be ensured that there are no fraudulent activities carried out in the company. Nilesh Sharma Corporate veil may be lifted either under express provisions of law; or under he US financial crisis started in mid 2007 has now become a global judicial pronouncements. It is important to study the various theory of Lifting T financial crisis engulfing all the countries and all the sectors in its reach. Corporate Veil being applied by the Courts in case of holding - subsidiary The same has given rise to defaults in interest and loan repayments by the relationships. With Courts potentially taking aggressive stand on lifting of borrowers to the banks and financial institutions. The banks are flooded with corporate veil smelling a single instance of fraud, it is important that bona fide the requests for restructuring of their loans. A number of borrowers have holding and subsidiary companies do their transactions on arms-length basis referred their matters to CDR. Banks have also initiated actions for and witness all the corporate formalities, to pass the "look at" test. enforcement of their securities under the SARFAESI Act, 2002. Restructuring and insolvency are the talk of the town. This article throws some light on the Intangible Assets - Impact on P-37 meaning of the terms "restructuring" and "insolvency", their advantages and disadvantages, insolvency laws in India, the process of CDR and the current Mergers and Amalgamations restructuring scenario in India. V. Ahalada Rao his article signifies the role of Intangible Assets in mergers & Will NCLT Prove to be the Panacea P-22 T amalgamation in the light of recent amendments in Schedule VI with separate disclosure of Intangible Assets. Various Intangible Assets, their for Sick Industries? disclosure and impact on the valuation in general and also with specific reference to industry are presented in detail and lucid manner. This article also Dr. S D Israni and Satyan S. Israni specifically focuses on errors in valuation of Intangible Assets that help the estructuring and rehabilitation of sick industries should be one of the industry to identify the gaps, improves the financial strength and increase the R priorities of the Government. It has been over ten years since the law value per share. The impact will be win - win situation to all viz. stakeholders, relating to creation of NCLT was passed by amending the Companies Act regulators and management, with the benefit of better transparency. during the year 2002, but till now no headway has been made. At the same time, BIFR has continued to exist with the sword of abolition hanging on its Corporate Restructuring and Insolvency P-41 head, very much like the plight of sick companies it deals with from day to day. The article highlights the problems that need to be addressed by the M.Kurthalanathan Government and it states that mere creation of NCLT as a Tribunal will not orporate restructuring is the superlative tool available for the companies solve all the issues relating to restructuring and rehabilitation of sick industries C to restructure their organization in an efficient manner.