Policy soon to facilitate entry of foreign banks: Rajan
PRESS TRUST OF INDIA
Washington, 13 October
The Reserve Bank of India ( RBI) would soon come out with major
reforms in the banking sector that would allow foreign banks to enter
India in a big way and even take over domestic lenders, Governor
Raghuram Rajan said.
"That is going to be a big, big opening because one could even
contemplate taking over Indian banks, small Indian banks and so on,"
he told a Washington audience on Saturday. The policy framework for
the entry of foreign banks in India, Rajan added, would be unveiled in
the next few weeks.
The banking sector reforms, in particular to those facilitating entry
of foreign banks in India in a " big way", is part of the five pillars
of reforms, including monetary policy framework, which RBI was to
implement in the next few years, the RBI Governor said. "For foreign
banks, if you adopt awholly- owned subsidiaries structure and we are
coming up with details on that in the next couple of weeks, we will
allow you near- national treatment," he said, quickly adding there
would be two conditions. "One, reciprocity. Your country should allow
the same to our own banks and, second, you come through one route.
Either you have a branch or you have a subsidiary; don't do both. That
is primarily to simplify our regulatory function, but also to make it
clean. But once you have a fully owned subsidiary, we would allow you
alot of freedom," he said.
Acknowledging the price situation was an issue for the economy, Rajan
said the ordinary monetary policy would be focused on containing
inflation and not directed towards external sectors. RBI is scheduled
to present the quarterly review of monetary policy on October 29.
Referring to the US shutdown, Rajan expressed full confidence in the
American economy and ruled out selling of US treasury bills, which
India holds to the tune of $ 59.1 billion.
"We ( India) do not worry about that issue ( US defaulting).
We are not selling our US assets. We are holding on to them," he said,
adding, " I have to say, whatever default will be atechnical default.
" From my understanding because repayments can be prioritised, unless
there is a sudden stop and markets stop taking new US debt meant to
refinance the old debt, there is no chance that the US will default."
Rajan said it would be good for the US to adopt fiscal policies
consistent with its current needs and added, " the one and half per
cent of US growth would be so tremendous and welcome to the world
economy." Elaborating on the banking sector reforms, Rajan said, they
would be a part of his five pillars of reforms which would start with
the monetary policy. "We got to get our monitory policy clear and
understood to the broader public. Clearly, RBI has had a monetary
policy framework.
We need to make it much more explicit. And, also bring it up to modern
standards of transparency and credibility." Observing RBI had already
announced free branching in India, Rajan said, " We announced that we
will give new bank licences not just once but we would contemplate
opening it on tap, people come in, submit their application, we
consider them and give licences." Deepening of Indian markets is
another area of policy reforms, he said, adding, " We want deeper
Indian markets — the corporate markets, the government debt markets
and the money markets." Noting the level of technology in India is
tremendous, Rajan said financial inclusion was another sector of his
reform. " We can think about technology- based solutions to intrusions
— spreading payments across the country. Across the board, we would
use to spread financial inclusion technology," he said.
"Whether it be corporate distress or financial institution distress,
we need to improve our mechanism to make it simpler, cleaner and less
value reducing," he said.
RBI Governor Raghuram Rajan speaks during the Institute of
International Finance Annual Membership Meeting in
Washington DC on Saturday PHOTO: BLOOMBERG
The Reserve Bank of India (RBI) Governor Raghuram Rajan, who has
increasingly been portrayed as a " rock star" after occupying the
current position, both in the national and international media, said
he was " not a superman" acknowledging "little bit" of euphoria
surrounding him.
"Expectations are high.
Clearly I am not a superman. There is a little bit of euphoria in
India," Rajan told in Washington on Saturday at an event organised by
the Institute of International Finance. " I have a wife and two kids,"
said the RBI Governor in the city to attend the annual plenary meeting
of the International Monetary Fund and World Bank.
"We can do more than what a central bank in an industrial country can
do. But we can, in some ways, do less. On where we can do more,
clearly there are a lot of low hanging fruit in the financial sector,"
he said, adding, the reforms in the financial sector can be incredibly
positive for growth going forward. He added the emerging market
economies were less understood.
Rajan said the Union government was doing a "fair amount of reforms",
which needs little bit of time for the results to show up. " I think,
with the financial sector reforms, coupled with the real sector
reforms, the growth turn around should be on its way," he said.
PTI 'I am not a superman'
BRIEF CASEN [1] M J ANTONY
SC for guidelines on blacklisting
In a precedent- setting judgment affecting government contracts, the
Supreme Court has asked BSNL to lay down guidelines for blacklisting
firms which respond to tenders and undertake projects. Since
blacklisting is afrequent cause of dispute and bitter government
entities, which enter into supply and works contracts. In this case,
M/ s Kulja Industries Ltd vs BSNL, the firm which supplies optical
fibre and HDPE pipes was debarred " for all times" by the public
sector undertaking on the charge of over- invoicing with the
connivance of BSNL officers themselves. The Bombay High Court upheld
the blacklisting. But the Supreme Court set aside the high court
judgment on appeal. The apex court felt that permanently debarring the
firm, which survives on supplies to BSNL alone, was too harsh. It felt
there should be some " broad guidelines" to provide objectivity and
transparency in imposing penalty on delinquent firms. The court asked
BSNL to frame guidelines in six months and review the period of
exclusion afresh in this case.
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> Relaxation in cheque bouncing cases
The stringent provisions in the Negotiable Instruments Act providing
punishment for issuing cheques without sufficient funds in the bank is
not a means of seeking retribution, but is more a means to ensure
payment of money. The threat of jail is only a mode to ensure
recovery, the Supreme Court stated last week in its judgment, Somnath
Sarkar vs Utpal Basu, while relaxing the sentence on a person whose
cheque bounced. In this case, a cheque of ₹ 69,500 bounced, leading to
an order of compensation amounting to ₹ 80,000 plus twice the cheque
amount apart from threat of prison. Setting aside the order of the
Calcutta High Court, the apex court reduced the liability to ₹ 80,000
as compensation to the payee plus ₹ 20,000 as fine.
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> Cooperative banks not under RTI
The Supreme Court last week held that cooperative banks will not fall
within the definition of ' public authority' for purposes of the Right
to Information Act. The ruling was given in the context of the Kerala
Co- operative Societies Act in the case, Thalappalam Service Coop Bank
Ltd vs state of Kerala. The state government had issued acircular
making the RTI applicable to coop societies. The Supreme Court quashed
it as there was no evidence to show that the coops were owned,
controlled or substantially financed by the government. The full Bench
of the Kerala High Court had upheld the circular and brought coops
within the RTI ambit. Reversing that view, the Supreme Court stated
that coops are not statutory bodies, but are only governed by
statutes. The state did not exercise any direct or indirect control
over the affairs of the society.
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> Copyright in the world of e- commerce
Though the world has taken to ecommerce, with seller and purchaser in
different parts of the world, the old principles of territorial
jurisdiction of courts cannot be abandoned, the Delhi High Court ruled
last week in the trade mark dispute between US corporation World
Wrestling Entertainment and Indian firm M/ s Reshma Collection. If the
basic rules are waived, it would " lead to undue hardship to those
resorting to e- commerce and open them to multifarious litigations in
every nook and corner of the world where their goods or services may
be sold over the Internet," the judgment said. The US corporation had
sought permanent injunction against the Mumbai garment firm selling
products with its copyright and trade marks. It argued that though it
has no branch office or dealer in Delhi, with the advent of " new
media" and transactions over the Internet, the US firm is deemed to
carry on business in Delhi as its website is accessible to consumers
in Delhi and its goods are available for sale in Delhi. Rejecting this
argument, the high court stated that " merely because a person has
embarked upon an e- commerce business model, the tests which apply for
determination of issues, such as — when and where the contract is
made, or whether the vendor carries on business at the place where the
merchandise may be sold, or service may be offered, would not change
and would be the same as apply to communications over telephone and
fax."
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> Suit doesn't bar arbitration
The Bombay High Court last week rejected the argument that once a suit
is filed in a dispute, arbitration cannot be invoked. Though the
parties had an arbitration agreement, a suit was filed in Guwahati
where the court rejected it for lack of jurisdiction. Then arbitration
was invoked, which was again contested, with one party moving the
Bombay High Court for arbitration. Since the parties still could not
agree on arbitrators, the high court named two of its retired judges,
who will choose an umpire. The court remarked in the judgment, Candid
Drug Distributors vs Wanbury Ltd, that the whole controversy was
unnecessary in view of the arbitration clause. " Arbitration would be
the most appropriate and desirable forum since the parties have agreed
to refer their dispute to arbitration," the judgment said.
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> Challenge to tender dismissed
The Bombay High Court has dismissed the challenge to the selection of
HAL Offshore Ltd by ONGC in a tender to set up a Skid Fire Firing
System offshore. One of the contenders, Homa Engineering Works,
alleged that HAL was not entitled to be considered for the bid as it
did not fulfil the technical qualifications. The high court stated
that it could not accept the interpretation given by Homa to the
clauses of the tender document. " We are unable to hold that ONGC's
interpretation of the clause is unsustainable and irrational
warranting interference in a writ petition. The view taken by ONGC is
certainly a possible view and in such matters we would not be inclined
to substitute our view for that of ONGC unless it is absolutely
necessary. To say the least, this is not a case where only one
interpretation of the clause is possible," the judgment said.
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> Minimum wage order quashed
The Calcutta High Court has ruled that medical representatives and
employees under drug manufacturers are not covered by the Minimum
Wages Act as they are not listed in the " scheduled employment" in the
Act. The court stated so while allowing the petition of notification
of the West Bengal government making the employees eligible for
minimum wages. The manufacturers argued that employment under them is
not covered in the schedule of the Act.
A weekly selection of key court orders
L& T judgment opens a Pandoras box
HARISHANKER SUBRAMANIAM
Recently, the larger Bench of the apex court in the case of L& T vs
state of Karnataka, held that any agreement to sell immovable property
entered into prior to construction would fall within the purview of
the term ' works contract', allowing state governments the power to
levy value- added tax ( VAT) on such contracts.
This issue has been a hot debate since the Raheja Development apex
court judgment in 2005, which was with respect to real estate
transaction structures in south India, wherein the sale of land was
separate from the sale of flats unlike in most other parts of India.
The issue was also hotly contested in recent years by the real estate
sector in Maharashtra, and in 2012, the Bombay High Court ruled that
such real estate transactions wherein an agreement to sell immovable
property was entered into prior to construction is subject to levy of
VAT as ' works contract'. In fact, in recent months, states like
Haryana have sought to issue trade notices to bring under purview such
agreements to sell immovable property, entered into prior to
construction within the purview of VAT as ' works contract'.
The L& T judgment has considered both the above judgments in arriving
at the conclusion that states have the power to levy VAT on such
transactions as ' works contracts'.
In the facts of this case, the main object/ substance of the
tripartite agreement was to sell and convey fraction of land with a
fully constructed apartment. At no point was the construction for and
on behalf of the purchaser, the apartment was to be sold as an
apartment and not as an aggregate of its component parts. Even in the
Bombay High Court case of MCHI, the agreement for sale is an agreement
to transfer immovable property with no element of works contract.
Facts and well settled arguments such as even if there is a
construction activity undertaken by a developer, he does not construct
on behalf of the apartment owner; the owner of the apartment has no
say in conceptualising the project or any control; that the ownership
of materials used in construction in such cases remain with developer;
and, that the accretion to the goods happens in the hand of the
developer, allude to the fact that such an activity cannot be treated
as a works contract.
The fact and settled arguments that in a conventional sale, property
of goods gets transferred as intended by the parties while in a works
contract property in goods are transferred through accretion, have all
been negated in coming to the conclusion by the apex court.
The apex court observes that though the ultimate transaction between
parties may be a sale of flat, it cannot be said that characteristics
of works contract are not involved in such a transaction. Hence, when
a contract comprises both — a works contract and transfer of immovable
property — it does not denude it of its character of ' works contract'
and that Article 366( 29- A)( b)) contemplates situations where goods
may not be transferred in the form of goods, but maybe transferred in
some other form which can even be in the form of immovable property.
This apex court judgment would be a matter of intense debate for years
and will have wide implications on real estate transactions across
states.
The judgment is a challenge for the real estate industry and would
bring about a plethora of complications on the ground for an industry
already reeling from a slowdown and high interest rates.
The judgment will result in VAT authorities looking for recoveries
from the industry within applicable limitation period. Further, this
judgment is likely to trigger new valuation issues as the court has
held that only the value addition made post- execution of an '
agreement to sell' an under construction flat would be subject to levy
of VAT giving rise to practical difficulties in implementing at the
ground level. Like in the case of Maharashtra, a practical solution
can be a composition scheme with lower tax incidence of one per cent,
though this judgment can embolden states to fix higher composition
rates. Further, in situations where possession has been handed over by
the developers against full and final settlements, the taxes may have
to borne by the developer. This highlights the challenges of a long-
drawn process of litigation in the country, which can produce outcomes
creating a huge amount of uncertainty of tax costs for the industry,
which may not be possible to recover.
Now a sale of an apartment would suffer stamp duty and VAT, both
levied by state along with service tax levied by the Centre, making
such apartments more expensive.
The early implementation of the goods and service tax can be the only
solution to such multiplicity of taxes and we hope the polity at large
is seized of its importance.
Harishanker Subramaniam is partner and national leader, indirect tax
services, EY. Views expressed are personal
ILLUSTRATION: BINAY SINHA
Early implementation of Goods and Services Tax can help do away with
uncertainty of tax costs for the real estate sector
We want to showcase CSR activities'
Corporates seem to be apprehensive about the new laws on CSR spend. A
general feeling is there are ambiguities in the current draft rules.
To me, there are no ambiguities at all. Section 135 of Companies Act
2013 has been drafted after many consultations, which the ministry has
had with associations, chambers and groups of business and industry
over many months. Their views and perceptions were taken into account
even as the Companies Bill was being drafted. This is the reason why
so many of the major issues have been comprehensively addressed.
Let me tell the corporates, our Act is very enabling. We want to
encourage what they are anyway doing. We want to give them a national
platform where they can showcase their activities. Many corporates are
doing great work and this should enable them to show in the public
domain what they are doing.
But the clause of penalising them ( if they fail to satisfactorily
report CSR spend) with fines and jail term can act as a deterrent.
That is not particular to CSR spend. That section is applicable for
the entire Act. Say, for instance, if a company fails to submit its
financials in time, there are penalties. That will also apply to CSR.
CSR is being added to that list to which penalties are anyway
applicable. So how do you think corporates will align to the new CSR
rules?
Many already have systems and processes (in place) and are extensively
monitoring their CSR programmes. So, they would actually find it easy
to comply with the law. Those not doing any CSR, but now falling
within the parameters of the new law, will have to set up systems and
processes in order to comply. Could you explain the plan for indexing
of companies based on their CSR spend?
This is proposed to be a grading of companies on the BSE, based on
well- defined CSR parameters. A broad overview of what each company is
doing in CSR would be taken. Thereafter, companies would be placed at
different levels of performance. The objective is to inspire, engage,
motivate and support business in continually improving its positive
impact on society while complying with Section 135 of Companies Act
2013. This would also generate awareness about the new CSR agenda in
the country.
For the full interview, visit www. business- standard. com
body and think- tank under the Ministry of Corporate Affairs, has been
closely associated with framing the current set of guidelines that
make CSR spend mandatory for corporates in the Companies Act, 2013.
Earlier in 2010, he was instrumental in bringing PSUs under the ambit
of mandatory CSR spend. In an
interaction with Sahil Makkarand Sudipto Dey,
he tries to allay fears among corporates over the issue of CSR
spending. Edited excerpts:
Handle construction & project agreements with care
Construction and project contracts, and arbitration provisions in such
contracts have to be drafted and crafted by lawyers with utmost care.
There exist certain protocols and different structures for such
contracts. So, beware of templates.
The key features are essentially the same — whether the contract
administration is under FIDIC or Joint Contracts Tribunal ( JCT).
There is the employer, who is usually also the owner or the developer
or both, the architect, who may wear more than one hat, or there could
be the engineer, who is often also the first stop for dispute
resolution, and in certain situations an internal dispute resolution
board. The last resorts are the arbitrators and the court, the latter
is usually reserved for appeals and interim relief purposes.
The contractor is the key figure inasmuch as being the person
executing the project. The key issues in such agreements are that of
the scope of work, time frame, deployment of labour, payments which
could be on the basis of fee plus cost of labour and equipment or
lumpsum.
The protocols of the JCT are probably the oldest, its members
comprising Royal Institute of British Architects, Royal Institution of
Chartered Surveyors and Institute of Consulting Engineers among
others. JCT contracts do not envisage mobilisation advances and
interim payments, though interim certificates for completion of an
itemised item may be released, liquidated damages for defective work,
failure to execute in accordance with scope of work are allowed.
FIDIC suit of contracts are followed in most European jurisdictions,
Switzerland, Italy to name a few — FIDIC's unique selling point is
that it is used in a host of standard forms of contract between
employers and contractors on international construction projects.
FIDIC's Red, Yellow and Orange books cover civil engineering,
mechanical works including erection and turnkey contracts.
In 1999, FIDIC suites were upgraded taking into account project
finance and dredgers contracts. The basic FIDIC characteristic is
lumpsum payment, minimum employer involvement and elimination of major
unforeseen hazards.
In India, building activity is and continues to be rampant. These vary
from mega infrastructure projects, ie, those having horizontal
multiplicity, such as, integrated housing projects and townships to
simpler construction verticals in which the entire suite of players
are not required and a single contract suffices. For large projects,
which are spread out over years, the players are multiple and sub-
contractor involvement is essential.
The architect and contractor are required for all building contracts
in India for passing of plans and execution. The architect's role is a
critical one. From selection of the contractor, preparing the designs
and drawings, plans, estimates and bill of quantities and project and
construction management, the architect's role requires involvement in
the entire process from inception to the point of handing over, as the
owner/ employer's agent.
But the architect's duty is not just construction, it's the details,
such as, measurements and elevations, as they can be held liable for
improper construction in case of failing to discharge the contractual
obligations by reason of their office such as failure to ensure proper
supervision of the building process, improper certification or wrongly
withholding a certificate.
Invariably, the first major document is the advertisement for tender/
bids along with the forms and the process of accepting and evaluation
thereof. The next in line are the requirements for drawing and plans,
and allocation of duties and obligations of the key players such as,
architect, engineer, contractor, designer, and employee.
The first stage is the planning, in which all the parties and agencies
are involved. It involves setting the time lines, the scope of work
for each of the above agencies. In large and small contracts the
architect will not be defaulted and be held liable unless negligence
can be established, and it can be demonstrated that reasonable care
was taken. But a regular, large contract usually includes and provides
for the General & Special Conditions of Contract, Billing of
Quantities, in addition to the above.
The architect very often acts as an on- the - spot trouble shooter/
arbitrator to resolve disputes between the owner and the contractor.
But this does not create a situation of conflict of interests, since
the owner is the one who pays all, which is why it is important to
have a distinction, particularly as the architect could also be a
potential witness in an arbitration proceeding, which is why it is not
always desirable to appoint the architect.
There are multiple contracts — as sub- contracting is a feature common
to most constructions and projects are spread out over several years
and usually not completed. There are no rules as such for these
contracts, though there are norms and practices. In the Indian context
the biggest impediment is that of delay, which cannot always be
predicted in advance.
The legal issues that normally arise are increase or change in the
scope of work and costs. Construction contracts, therefore, require
quick and effective dispute resolution processes and not lengthy
arbitrations.
There could be unwarranted increase in the cost, which often renders
afixed fee contract unviable for more than one party. To ensure that
all disputes are properly addressed, it is important to provide levels
of dispute resolution mechanisms and options, with the rider that
suspension of work should be permitted only by any one authority and
that also in the rarest of rare cases, and the party responsible would
be liable for damages, if so warranted.
Kumkum Sen is a partner at Bharucha & Partners Delhi Office and can be
reached at kumkum. sen@ bharucha. in
LEGAL EYE
KUMKUM SEN
Construction contracts require quick and effective dispute resolution
processes, and not lengthy arbitrations
Source Business line
An individual can register only 5 one-person companies
PTI
NEW DELHI, OCT 6:
Entrepreneurs have a reason to smile with the Government introducing
the novel idea of 'one person company' but an individual can register
a maximum of five such entities for business purposes.
'One person company' opens up plethora for business opportunities for
small entrepreneurs and people, such as those working in the areas of
handloom, handicraft and pottery.
Interestingly, the setting up of OPCs is also subject to certain
conditions unlike other class of companies.
According to the new Companies Act, the words 'One Person Company'
should be mentioned in brackets below the name of such company,
wherever its name is printed, affixed or engraved.
Before the new Companies Act came into effect, at least two
shareholders were required to start a company.
"No person shall be eligible to incorporate more than five One Person
Companies," according to draft rules issued for the Companies Act
2013.
According to experts, OPC could facilitate easier access to funding
sources for entrepreneurs. Besides, having such entities, especially
in SME (small and medium enterprises) sector would help the government
to capture quality data about the sector and form policies
accordingly, they added.
Many countries, including the US, Singapore and China, allow
entrepreneurs to structure their business as One Person OPC.
Meanwhile, as per the new Companies Act, an entity would lose the
status of OPC if it exceeds certain limits of paid up share capital
and turnover.
When the paid up share capital exceeds Rs 50 lakh or average annual
turnover during the relevant period crosses Rs 2 crore, then a firm
ceases to be an OPC.
As per the draft rules, an OPC can get itself converted into a private
or public company by complying with relevant norms including having
the requisite paid up capital for those class of entities.
Only a natural person who is an Indian citizen and resident in India
would be eligible to set up OPCs.
In the case of OPC, the financial statements — duly adopted by the
member — along with all the related and required documents should be
filed with the government within 180 days the end of a financial year.
Recently, Corporate Affairs Minister Sachin Pilot had said that the
concept of OPC is quite revolutionary.
"... also, rather than the middlemen conjuring profits, the one person
company will have direct access to the market and wholesale
retailers," he had said.
(This article was published on October 6, 2013)
Keywords: Companies Act, new company law, One Person Company
--
CS A Rengarajan
9381011200
CS Benevolent Fund is a collective effort towards extending the much
needed financial support to the community of Company Secretaries in
times of distress Let us lend support and join for noble cause.
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