The Insolvency and Bankruptcy Code 2016 (‘IBC’)overhauled the erstwhile insolvency regime with a focus onthe resolution of insolvency via re-organisation as opposed to liquidation. It aims to fairly balance the interests of creditors and the company undergoing Corporate Resolution Insolvency Process (CIRP).

Prior to the insertion of Section 29A via the IBC (Amendment) Act 2018, there was no qualification for being a resolution applicant. This allowed backdoor entry ofdefaulting promoters to regain control over the company at significant haircuts, at times with deliberate and mala fideintention, thereby frustrating the said purpose of the IBC. The Insolvency Law Committee, under the chairmanship of Mr. Injeti Srinivas, painstakingly delved into lacunae of IBC and its 2018 Report recommended adequate reforms, including on the eligibility to submit a resolution plan. Albeit the insertion of Section 29A cured a few lacunae, it hurled new challenges concomitantly, owing to its wide ambit of interpretation. Its jurisprudence is thus still evolving. Before proceeding further, let’s have a glance at Section 29A.

BAR UNDER SECTION 29A OF IBC

Operating upon the four layers of ineligibility, being himself, persons acting in concert, connected persons and related parties, Section 29A renders the following persons ineligibleto be a resolution applicant:

a) undischarged insolvent

b) wilful defaulters

c) persons (except non-related financial entity) whose account, or that of a corporate debtor under management or control of such person, is classified as a non-performing asset (NPA) for one year or more unless he discharges all the dues along with interest and consequent charges, at the time of the submission of the resolution plan.

d) convicts of any offence punishable with imprisonment for two (or seven as the case may be) years or more, unless two years have passed from the date of his release.

e) disqualified to be a director

f) prohibited by SEBI from trading in or accessing the securities markets.

g) promoters, management or guarantors of the corporate debtor, or connected therewith, against which an order has been made by the Adjudicating Authority for entering into a preferential, undervalued, fraudulent, or extortionate credit transaction.

h) guarantors of such corporate debtor where the underlying guarantee invoked by creditor(s) remains unpaid to any extent.

i) disqualified by any law of other countries for any of the clauses (a) to (h).

j) connected with ineligible persons as under clauses (a) to (i).

The layers of ineligibility of being a resolution applicant are further elucidated in the explanations attached to the Section, rendering its diverse interpretations inevitable.

THE CRUSADE OF SECTION 29A IN THE COURTS OF LAW

The flexible interpretation of clause (c) of Section 29A

In Chitra Sharma v. UOI and ArcelorMittal India (P) Ltd. v. Satish Kumar Gupta (“ArcelorMittal”), the Supreme Court interpreted Section 29A as a provision to ensure that thepersons responsible for distress and downfall of the companydo not participate in the CIRP, thereby upholding the public interest and facilitating effective corporate governance.

To not bar genuine resolution applicants from onboarding theprocess, it was flexibly interpreted in RBL Bank Limited v. MBL Infrastructures Limited and Sreeram E. Techno School Pvt. Ltd. v. Beans and More Hospitality Pvt. Ltd. to concludethat Section 29A does not squarely bar all the promoters and directors from filing a resolution plan rather it only prohibitssuch persons “who on account of their antecedents may adversely impact the credibility of process under the IBC.” Accordingly, promoters or directors are not barred by section 29A if they meet all the three conditions viz. –

(i) not met with the disqualifications mentioned in Section 29A;

(ii) their resolution plan is pursuant to Section 30; and

(iii) a majority of creditors agrees with the plan sosubmitted.

Retrospective effect and the Constitutional Validity of Section 29A

As articulated in “nova constitutio futuris formam imponere debet non praeteritis” expressing that “a new law ought to regulate what is to follow, not the past”, unless a statute either explicitly or impliedly provides for its retrospective effect, a presumption of its prospective application is followed. However, to curtail the mischief, the legislature has consciously given a retrospective effect to Section 29A in explicit terms w.e.f. 23.11.2017.

On the question of the stage at which the retrospective operation comes into effect, the Supreme Court in theArcelorMittalcase clarified that it is at the stage of the submission of the resolution plan when ineligibility is attached to the person. The person eligible on the commencement date would not make him eligible on the date of submission of the plan.

In Swiss Ribbons (P) Ltd. v. UOI, the Apex Court dealt with its constitutional validity, with a particular focus on clause (c). Relying on its judgments in Chitra Sharma v. UOI and ArcelorMittal, it upheld the validity of Section 29A with retrospective effect while affirming with the raison d’être for the IBC (Second Amendment) Act, 2018.

Lately, in Arun Kumar Jagatramka v. Jindal Steel and Power Ltd., the Apex Court again upheld the Section 29A(c) by stating that the purpose of introducing ineligibility is to achieve a sustainable revival and to ensure that a person who is the cause of the problem either by a design or a default does not become a part of the process of solution.

Thus, Section 29A is not only constitutionally valid but alsoinstrumental in achieving the objectives of the Code in its true spirit.

CONCLUSION

The IBC has undergone momentous changes since its inception to provide expedite solutions and has marked the advent of pre-packaged, cross border insolvency resolution procedures and so on. Section 29A might have opened up pandora’s box; however, neither any law can be an infallible one nor the niche of insolvency resolution is a child’s play. In this light, the interplay of nascent disputes, diverse interpretations and thus the inexorable judicial interventions might hinder the goals of time-bound insolvency settlements.Consequently, a paradigm shift in the evolving insolvency jurisprudence is bound to happen.

In a welcome, wonderful and wise judgment titled “Court on its own motion v State” in CRL.REF. 1/2020 that was pronounced on October 27, 2021 and then finally released on October 29, 2021, the Delhi High Court has ordered that investigating officers probing offences committed by juveniles should obtain documents related to age proof and ensure that the ossification test for determination of age is done within 15 days from the date the Juvenile Justice Board (JJB) issues such directions. It must be mentioned here that this remarkable, rational, robust and refreshing judgment was passed by a Bench of Delhi High Court comprising of Justice Siddharth Mridul and Justice Anup Jairam Bhambhani. It also deserves mentioning here that the Court also very rightly directed education institutions and other authorities to cooperate and give priority to the request made by investigating officers for verification of age of juvenile accused which is perfectly in order also as this alone will serve the true purpose of justice by ensuring that the investigation is completed well in time and the trial also starts at the earliest.

To start with, the Bench first and foremost states in para 1 that, “In para 16 of order dated 29.09.2021, this court had passed the following directions :

“i. In all cases alleging petty offences against children/juveniles, where the inquiry has been pending and remains inconclusive for longer than 01 year, regardless of whether the subject child/juvenile has been produced before the JJB, all such inquiries shall stand terminated with immediate effect; a formal order closing all such matters shall be passed by the JJBs in each file within 02 (two) weeks from the date of this order; and any children/juveniles detained in relation to such inquiries, shall be released immediately without waiting for recording the formal orders. In issuing this direction we take note of the fact that when a report/final report is filed alleging a petty offence, it is the State’s own case, that the subject is a child or juvenile. We are passing these directions ex debito justiciae, to correct an error in the judicial dispensation, since we believe there is no justification in keeping such matters pending any longer;

ii. Insofar as cases against children/juveniles who are alleged to have committed petty offences, where inquiries are pending for between 06 months and 01 year, the State is directed to apprise this court of the number of such cases pending in each JJB in Delhi along with the date of institution of the inquiry and the date of first production (if any) in each case, within 10 (ten) days from the date of this order, so that further necessary directions in that behalf may be passed by this court.””

For sake of information, the Bench then puts forth in para 2 that, “In compliance of the directions contained in para 16(i) of order dated 29.09.2021 extracted above, Ms. Nandita Rao, learned Additional Standing Counsel (Criminal) appearing for the State, has placed on record certain documents vidé Index No. 869725 dated 26.10.2021 indicating the status of cases as referred to above in our order dated 29.09.2021, in all 06 Juvenile Justice Boards (‘JJBs’) in Delhi by way of tabulated summaries. Furthermore, Ms. Rao has also handed-up in court an additional tabulated summary relating to JJB-II, Delhi Gate, New Delhi which gives the status of pendency of cases as of today 27.10.2021.”

Of course, the Bench then envisages in para 3 that, “We are informed that as of date, only 19 inquiries relating to petty offences against children/juveniles are pending before JJB-II, while all such inquiries pending before other JJBs either stand closed; or it transpired that there were no such inquiries pending before such Boards.”

Adding more to it, the Bench then enunciates in para 4 that, “Insofar as the 19 cases pending before JJB-II are concerned, Ms. Rao informs us that there are specific reasons for which these inquiries are yet to be closed, details of which are contained in the tabulated summary. Let the tabulated summaries relating to JJB-II as updated to 27.10.2021 be filed on record. In any case, Ms. Rao assures the court that these 19 inquiries will also be closed within the next few weeks.”

While apprising of the latest situation, the Bench then lays bare in para 5 that, “Accordingly, going by the number of inquiries indicated in the tabulated summaries relating to the various JJBs in Delhi, it transpires that according to the State, a total of 913 inquiries alleging petty offences against children/juveniles stand closed as of 27.10.2021.”

Furthermore, the Bench then points out in para 6 that, “Insofar as the directions contained in para 16(ii) of order dated 29.09.2021 extracted above are concerned, Ms. Rao seeks further time to furnish to the court details of the number of inquiries alleging petty offences against the children/juveniles pending for a period between 06 months and 01 year, along with the date of first production, if any. Furthermore, Ms. Rao submits that the rehabilitation plans/individual childcare plans in relation to these juveniles would also be furnished within this timeframe.”

To put things in perspective, the Bench then states in para 7 that, “Ms. Anu Grover Baliga, learned Secretary, DHCLSC who is assisting the court in the matter further suggests that since the first and most significant point of delay in disposal of inquiries is that no timeframe has been stipulated under the Juvenile Justice (Care and Production of Children) Act, 2015 or Model Rules, 2016 for completing the process of age-determination of juveniles, this court may lay-down timeframes within which the age-determination process ought to be completed. Ms. Baliga submits that it is common for an Investigating Officer to take substantial time to collect documents relating to proof of age; and even longer to get an ossification test conducted if directed by a JJB. She suggests that a timeframe of 02 weeks be stipulated by this court for each of the said two stages/processes of age-determination. She points-out that at present S.O. No.68/2017 dated 17.11.2017 issued by the Commissioner of Police stipulates a period of 30 days for determination of age of a child reckoned from the date of making of the application before CWC/JJB. We are informed that this timeline of 30 days was in fact contained in Rule 12 of the earlier Juvenile Justice (Care and Production of Children) Rules, 2007; which timeline is however missing in the Juvenile Justice (Care and Production of Children) Act 2015 and in the Rules framed thereunder.”

Be it noted, the Bench then crucially notes in para 8 that, “Mr. H.S. Phoolka, learned Senior Counsel/Amicus Curiae appearing in the matter has further drawn our attention to the following two aspects:

(a) That though a sizeable corpus is available in the Juvenile Justice Fund set-up under section 105 of the JJ Act, it appears no significant sum has been disbursed for the intended purposes over the past several years;

(b)That there was a proposal to set-up 11 JJBs for a territory as large as Delhi, which at present has only 06 JJBs, though it has 11 judicial districts.”

As a corollary, the Bench then discloses in para 9 that, “In view of the above, it is Mr. Phoolka’s suggestion that information be called from the State about the quantum of funds allocated and those disbursed from the Juvenile Justice Fund; and to also seek an update on the timeframe as regards setting-up of more JJBs to cater to the increasing requirements of Delhi.”

Graciously enough, the Bench then hastens to add in para 10 that, “We have heard learned counsel appearing for the parties at length. We have also given our serious consideration to the suggestions made by Ms. Rao, Ms. Baliga, as well as Mr. Phoolka.”

Most significantly and also most remarkably, what must capture the maximum eyeballs as it forms the backbone of this learned, laudable, latest and landmark judgment is then laid bare in para 11 wherein it is put forth quite aptly that, “Upon considering the various submissions, at this stage, we are persuaded to issue the following additional directions for further streamlining the process of inquiries relating to juveniles, for scrupulous compliance by all concerned authorities :

(a) In all cases pertaining to juveniles in conflict with law, regardless of the nature of offences alleged, upon directions issued by a JJB after production of a juvenile before it, the Investigating Officer of the case shall collect and file before the JJB requisite documents towards proof of age of the juvenile within 15 days from the date of issuance of such directions;

(b) In all cases pertaining to juveniles in conflict with law, regardless of the nature of offences alleged, upon directions issued by a JJB after production of a juvenile before it, the Investigating Officer of the case shall ensure that the ossification test in relation to the juvenile is completed, a report is obtained and filed before the JJB within 15 days from the date the ossification test is ordered by a JJB;

(c) In all cases pertaining to juveniles in conflict with law, regardless of the nature of offences alleged, the JJB shall ensure that the process of age-determination of the juvenile is completed within 15 days from the filing of documents relating to proof of age/ossification test report by the Investigating Officer, as the case may be;

The concluding part is available on thedailyguardian.com

(d) It is further directed that all persons/educational institutions/medical institutions/governmental authorities to whom a request is made by an Investigating Officer for providing documentation towards age-determination or for conducting ossification test on a juvenile, shall give priority, cooperate and undertake necessary procedures and processes to enable compliance with the time-lines set-out above.”

As we see, the Bench then directs in para 12 that, “We grant to the State 04 weeks’ time for furnishing the information as directed in para 16(ii) of order dated 29.09.2021 relating to inquiries for petty offences pending before all JJBs in Delhi between 06 months and 01 year, giving the number of such cases pending in each JJB in Delhi along with the date of institution of the inquiry and the date of first production of the juvenile, if any, in each case; and preferably also including the rehabilitation plan/individual care plan for each child/juvenile. It is further directed that data for each JJB be presented in the same/common format of the choosing of the State, so that the data is easily comprehensible and comparable as between various JJBs.”

What’s more, the Bench then further adds in para 13 that, “The State is further directed to apprise the court as to the quantum of money sanctioned and allocated for the Juvenile Justice Fund; and the quantum disbursed from the said fund, along with the purpose for which money was disbursed, as of 30.11.2021. (cf. Rule 83 of JJ Rules 2016).”

Not stopping here, the Bench then also adds in para 14 that, “The State is also directed to apprise the court as to the status of the proposal to increase the number of JJBs in the city, including the timelines proposed for the purpose.”

Finally, the Bench then concludes by holding that, “List for further consideration of the matter on 14.12.2021.”

In sum, we certainly have to keep our fingers crossed as this notable case is yet to be finally decided. But one thing is for sure: The extremely commendable directions that the Delhi High Court has issued in this notable judgment as laid bare in para 11 must be implemented forthwith in right earnest as this alone will serve the true purpose of justice. In other words, the age verification of juveniles must be completed within 15 days as directed by the Delhi High Court in this noteworthy judgment also! No doubt, all the educational institutions, medical institutions and government authorities also must accordingly cooperate in this direction meaningfully so that the age determination of the juvenile is completed within the stipulated time of 15 days. This is the crying need of the hour also!

Sanjeev Sirohi, Advocate,

In the past few decades, the world has become heavily dependent on information technology. With this we also come across the various instances of cyber crime where it is not just limited to being a mere computer crime but has a huge impact on the society as well. With our maximum number of tasks being performed through the medium of internet it exposes a lot of private data to the network. It has also resulted in becoming an evident threat to an individual’s privacy. The openness and unboundedness of the network has made it easier for the criminal to escape, he goes unchecked as the legal provisions remain superfluous. It has overtaken the conventional infrastructures be it of cables, voice industry, broadcasters, or the print world. It has turned out to be a new opportunity for the criminal mind. Another arena of intellectual property has also been severely affected by it. There is an abundance of information on the internet and this leads to poor patent quality, more copyright and trademark infringements. It even results in a negative impact on the prosecution procedure as the workload and pressure of the patent examining authorities is increasing with the rising number of issues related to the same. The amount of information on the internet is mammoth and this has even affected the economic factor as the cost of retrieving the relevant data has risen up. The problems concerning theft of data through the medium of internet or the unauthorised publication of some one’s work has become a common issue. The easy ways of cut, copy and paste has blurred the boundaries between original and copied work. The storage of vast amounts of data has resulted in its mass copying by uncountable netizens. The criminals take advantage of anonymity on the platform and resort to various ways of defrauding people. Expanding horizons of internet and digitization has resulted in an entire new generation of crimes- the cyber-crimes.

In the contemporary times, computer glitches, cyber crimes and informational harms rising rapidly. The investigation process which involves fact finding and the search for truth is facing legal, technical, operational, and political challenges on its path. To check the behaviour of an individual online and to achieve the purpose of criminal law traditional laws have geared up to some extent and are changing, thereby suiting to the environment of the internet age. To meet the changing legal needs newer technology specific laws are coming in advanced societies. The internet boom has expanded the horizons of criminal activity and has also empowered the non-deviant and inactive criminal to take up new criminal activities which are online. Some of the cyber activities that have been brought within the legal entrenchment are hacking, obscene electronic material, stalking and a few others. But others escape regulation because of their esoteric nature. As it is important for a civilised society to have law similarly it is important to have a legislation to regulate electronic activities. The effect of these crimes is found in the real world though it is committed in the virtual surroundings. However, it is not as easy as it sounds.

In India, cyber laws are contained in the Information Technology Act, 2000, which came into force on October 17, 2000. The main purpose of the Act is to provide legal recognition to electronic commerce and to facilitate filing of electronic records with the Government.

“The existing laws of India, even with the most compassionate and liberal interpretation could not be interpreted in the light of the emergency cyberspace, to include all aspects relating to different activities in cyberspace. In fact, the practical experience and the wisdom of judgement found that it shall not be without major threats and pitfalls, if the existing laws were to be interpreted in the scenario of emerging cyberspace, without enacting new cyber laws. Hence, their is a need for enactment of relevant cyber laws.”

These technological changes have affected jurisdiction and evidence which are two of the most sensitive areas of the legal system.

Jurisdictional issues:

In the technological spree it is the worst from of casualty. Jurisdiction has always remained a complex issue in international/ transnational matters but it has become even more of a complex issue in cyber-crimes. The majority of cyber-crimes such as stalking, spamming, unauthorised access etc. are often done remotely from a different country. For example, in the case of United States vs. Ivanov, the statue such as the CFAA was explicitly stated to be applied extraterritorially but in several other statues no such provisions are there and are thus the courts are left to decide with the jurisdictional decisions.

Evidence collection and privacy concerns:

There has been an unending conflict between the collection of evidence and upholding the privacy of the individual so concerned. Computers in a household are one of the most personal assets of the occupant and illegally searching or seizing them might give rise to serious privacy concerns and might lead to the infringement of one’s personal rights. In the light of the same we would discuss two cases. The first one is a case of the United States of America. In Washington vs. Nordlund, the Washington court of appeals had held that warrants which the describe particularly the likelihood that a computer contains data evidencing a crime must show nexus between the crime and data. In India right to privacy is a constitutional right, safeguarded in several judgements. For example, in the case of People’s Union for civil liberties vs. Union of India, it was held by the supreme court that tapping of phone is a serious invasion of privacy which is a part of the individual’s right to “life and personal liberty” and these rights cannot be taken away in by the state except in cases of public emergency.

It can be observed that there exists a policy vacuum regarding how computer technology should be used. Adequate policies must exist for conduct in these situations i.e., policies should be formulated to guide the actions of the users of the network. Another observation made while the research work was done that people are still not fully aware of the correct and safe usages of internet and awareness is required. It is also essential to bring transformations in the traditional laws to suit to the changing times of technological innovations. Digital training for the law enforcement agencies is very much the need of the hour for better functioning of the justice system. Science and technology are an inevitable part of our life and thus the laws also need to evolve accordingly.

Pakistan that was carved out as a separate dream homeland for South Asian Muslims has gone astray. Instead of pursuing Jinnahism and following the tenets of its founder, it has chosen to follow Jihadism. It has made supporting terror a part of its state policy.

Instead of building on the common Indian pluralistic heritage, where Muslims also contributed and shined, successive Pakistani regimes and the intelligentsia have preferred to build the idea of Pakistan on pillars of Islam and antagonism towards India. The hate India has been made as a national narrative. Time has proved that Pakistan’s paranoia regarding India is unfounded.

Using terrorist groups as part of its security and foreign policy shows its obsession with India which it perceives as an existential threat. The ideology of Pakistan is built on twin pillars of Islam and antagonism towards India. Pakistan never realized that as a nation-state it should create its history and move forward but lived with historical appropriation and distortions of the past.

India’s relations with Pakistan have been defined by the Partition in 1947, the Kashmir conundrum and the military conflicts fought between the two South Asian neighbours. The relations have always been plagued by conflicts, hostilities and suspicion even though the two-share common linguistic, cultural, geographical and economic linkages.

India always offered an olive branch to sort out amicably some of the pressing issues including Kashmir. Indian Prime minister Pt Jawahar Lal Nehru was engaged with Pakistan leadership from 1948 onwards. Pakistan’s third Prime Minister Mohamed Ali in April 1953 approached Nehru for discussing the bilateral issues. They met on the sidelines of the 6th Commonwealth Conference in London in June 1953. Both sides discussed issues of canal waters, evacuee properties and other issues, except the Kashmir, cordially. Ali invited Nehru for a visit to Karachi. Various issues were being discussed by the officials separately. Nehru realized engagement with Pakistan would benefit in removing irritants in bilateral relations.

He was under impression that an engagement may not take Pakistan for a military buildup and join a military alliance with the US. He was also of the view that it may lead to the relaxation of tension in the sub-continent and it could rescue India from the dangers of Cold War politics etc. Nehru, therefore, visited Karachi in July 1953, where he received tumultuous reception.

SHEIKH’S TANTRUMS IN KASHMIR

But in August 1953 political developments turned ugly for India in Kashmir because of Shiekh Abdullah, who already was being perceived as a thorn in the flesh of the body politic of India.

On August 7, BBC reported a speech of Shiekh on Martyr’s- day in July:

“If I felt by remaining Independent, Kashmir Would be well off, I would not hesitate to raise my voice in favour of complete freedom for Kashmir. If I felt that Kashmir’s betterment lay in its accession to Pakistan, no power in the world could silence my voice.”

Shiekh was arrested on 8-9th August 1953. Pakistan’s joining the US in a defence pact changed the context of bilateral negotiations. Nehru took a firm stand by saying Pakistan is irrelevant as far as Kashmir is concerned. He said Jammu and Kashmir Constituent Assembly shall henceforth decide the future of Kashmir. He confidently said: “if Kashmir Constituent assembly, did not approve of the State’s accession to India, New Delhi would walk out of the State.” The assembly finally voted in favour of India.

Pakistan’s brazen belligerence continues towards India despite the extension of an olive branch from time and again by India for good neighbourly relations. Pakistan’s Kashmir rants echo always in United Nations Human Rights Council at Geneva and rake up the issue at UNGA. India fiercely replies calling Pakistan “Terroristan” and asserts J&K as its integral part. India is not willing to renegotiate Kashmir’s territorial status. The bilateral issues can be addressed through talks and negotiations.

There have been military wars, continuing undeclared wars, numerous skirmishes and standoffs. Many successful attempts to improve relations through Shimla Agreement, Agra and Lahore summits, etc, have fallen apart. The relations soured after the Siachen conflict of 1980, the Kashmir insurgency of 1989 onwards and the Kargil war. Terror attacks on the Indian Parliament in 2001 almost brought two nuclear nations to the brink of war. Mumbai terror attack of 2008 by Pakistani terrorists that killed hundreds, and its continuous support to terrorists in Kashmir to delegitimise the idea of India has soured our relations further.

The US has always been helpful and concerned about regional security in South Asia. US experts feel that India-Pakistan tensions will complicate and spoil Peace interests in the region and the Chinese incursions in Ladakh has put India’s geostrategic interests in Jeopardy. The foreign policy experts wish to alert Mr Modi on the implications of the close China-Pakistan relations as Beijing is trying to remake geography by launching huge infrastructure roads and bridges on the borders on the one hand and the other continue with belligerence the incursions in Ladakh Therefore, persistent and astute diplomatic engagement at a comprehensive level with nations in the region becomes important. That is how PM Modi is attempting to toggle out of the current diplomatic Catch -20 syndrome.

DOWNSLIDE IN RELATIONS WITH ITS FORMER ALLIES

Despite having started to reboot its diplomatic ties with the US to end the stalemate of the last few years, Islamabad’s relations with other nations have been on the downside because it lied to the world about the presence of Al Qaeda chief — Osama bin Laden — in Pakistan. The Americans nailed these lies by carrying out Operation Neptune Spear and he was found in Abbottabad near the elite military school in Pakistan and was liquidated. All eyes are on Pakistan and it has to come clean and stop breeding terrorists in its backyard and root them out.

The Modi government’s policy to isolate Pakistan from erstwhile friendly countries such as the UAE, Central Asian countries and other relevant nations have succeeded. By now the world has acknowledged the stark truth that Pakistan is the sponsor of terrorism and poses a serious threat to security in the South Asian region. As such at the moment no dialogue with Pakistan is the Indian policy.

India’s astute diplomacy and her latest strategy may require a change in Pakistan’s unrealistic rigidity that Kashmir is the unfinished business of Partition. That view, having no legal merits has not many takers internationally.

The United Nations Now, with 193 members, shows virtually no interest in the issue. Pakistan’s leaders still refuse to recognise that the territorial status quo and a better life for Kashmiris might be all they can hope for. They prefer to keep Kashmir alive as a problem that is neither solved nor set aside.

Pakistan’s desire for an international solution to Kashmir seems farther from possibility than ever. In the aftermath of the recent Modi Government decision, the US noted that India considers it an internal matter.

Chinese reaction was focused more on its territorial dispute with India over Ladakh than on Pakistan’s stance although the Chinese statement did refer to the dispute as “an issue left from the past between India and Pakistan.”

Sri Lanka, Bangladesh, and the Maldives – all members of the South Asian Association for Regional Cooperation (SAARC) – acknowledged the internal nature of the constitutional changes. Among member states of the Organisation of Islamic Cooperation (OIC), United Arab Emirates (UAE) took the lead in expressing the hope that the changes would improve the lives of Kashmiris.

BIDEN TOES TRUMP’S POLICY ON PAKISTAN

Imran Khan’s call to Turkey’s Preside Recep Tayyip Erdogan elicited a promise of “steadfast support” without condemnation of India. A similar call for support to Malaysia’s Prime Minister Tun Mahathir bin Mohamad resulted only in a lukewarm expression of concern. Despite having started to reboot its diplomatic ties with the US to end the stalemate of the last few years, Islamabad’s relations with other nations have been on the downside because it lied to the world about the presence of Al Qaeda chief — Osama bin Laden — in Pakistan. The Americans nailed these lies by carrying out Operation Neptune Spear and he was found in Abbottabad near the elite military school in Pakistan and was liquidated. All eyes are on Pakistan and it has to come clean and stop breeding terrorists in its backyard and root them out.

Former US President Trump had voiced his strong-arm policy against terrorism. Now the almost same policy is echoed by the current Joe Biden Administration. Pakistan has to take it seriously if it wishes to get financial aid from the US. Financial Action Task Force is eyeing Pakistan. China removed the objection to putting Pakistan on the grey list by FATF.

Pakistan is being placed on the global terrorist-financing list from June 2018 onwards that would endanger its handful of remaining banking links to the outside world causing financial pain to its economy. Saudi Arabia has also removed its objection and now only Turkey is supporting Pakistan.

President Trump has said it is time to expose and hold responsible those countries who breed, support and finance terror groups. The US administration has charted a new South Asia policy in which it has sought a larger role for India in South Asia and has put Pakistan on notice.

Pakistan’s temper tantrums and petulance responses have not convinced the US and other nations. Pakistan has to take a hard look at options. It has to play tough against Hizbul Mujahideen, Lashkar-e-Taiba, Jaish-e-Mohammad and all other similar groups.

International relations are seldom about legalistic and moral arguments of the kind Pakistanis offer about the invalidity of then Maharaja Hari Singh’s accession and subsequent UN resolutions on Kashmir. Countries care more about their interests and Pakistan offers less and less in terms of value concerning others.

China’s annual trade with India amounts to $95 billion compared to $13 billion with Pakistan. Turkey’s trade with India stands at $8.6 billion against $1 billion with Pakistan. Malaysia-India trade at $14 billion is 14 times more than the $1 billion of goods and services Malaysia exchanges with Pakistan.

BUYING PEACE WITH HOSTILE NEIGHBOUR

Modi by now is conscious that he may not be able to transact any big issue with Pakistan because it wants business on Siachen and Sir Creek, which in turn is always demurred. India does not buy any formula on Kashmir, as it firmly believes terror and talks cannot go together and until and unless Pakistan brings to the book perpetrators of the 26/11 Mumbai killings. The territorial status of Kashmir is not negotiable. Thus, the only issue that can find an agreement is enhanced trade relations and other economic development schemes but that too will take some time to materialise.

Conducting frequent talks at different levels, which do not yield a satisfying outcome, is part of diplomacy. India and its Prime Minister are to be seen as a participant in the process of buying peace with even the hostile neighbour country to promote his credentials as a moderniser internationally.

It is time for Pakistan to take these harsh realities into account instead of just emotional and religion-based appeals to settle what could not be settled in 1947. The civilizational ethos of foreign policy should be a strong belief in universal brotherhood- VASUDHAIVA KUTMBAKAM

The Modi government’s policy to isolate Pakistan from erstwhile friendly countries such as the UAE, Central Asian countries and other relevant nations has succeeded. By now the world has acknowl- edged the stark truth that Pakistan is the sponsor of terrorism and poses a serious threat to security in the South Asian region. As such at the moment no dialogue with Pakistan is the Indian policy.

In a recent, refreshing, rational and robust judgment titled Sanno Kumari vs Krishan Kumar in MAT.APP.(F.C.) 119/2020 and C.M. No.25687/2020 delivered as recently as on October 28, 2021, the Delhi High Court has dissolved marriage between a couple by decree of divorce on the ground of cruelty observing that the husband had viewed his wife as a cash cow on getting a job with Delhi Police without any emotional ties. How could this be permitted under any circumstances? The Bench of Delhi High Court comprising of Justice Vipin Sanghi and Justice Jasmeet Singh was dealing with an appeal filed by a wife challenging the Family Court order after observing neither of the grounds of cruelty or desertion was established by her.

C.M. No. 25688/2020

To begin with, the ball is set rolling first and foremost in para 1 of this judgment authored by a Bench of High Court comprising of Justice Vipin Sanghi and Justice Jasmeet Singh wherein it is put forth that, “Considering the fact that the impugned judgment was passed by the Family Court on 20.01.2020, whereafter the COVID-19 pandemic hit the country, and affected the ability of the parties to pursue their rights, inter alia, before Courts, the application is allowed, and delay in filing of the appeal is condoned.”

MAT.APP.(F.C.) 119/2020

To put things in perspective, the Bench then envisages in para 2 that, “The present appeal is directed against the judgement dated 20.01.2020 passed by the learned Principal Judge, Central District, Family Court, Tis Hazari, Delhi in HMA Petition No. 904/2017 preferred by the appellant wife against the respondent husband under Section 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act, 1955 (HMA) to seek decree of divorce. By the impugned judgment, the learned Family Court has dismissed the said divorce petition by returning the findings that neither of the grounds of cruelty or desertion has been established by the appellant wife.”

While dwelling on the background of this case, the Bench then enunciates in para 3 that, “Both the parties come from poor background. The marriage between the parties was solemnized on 07.12.2000. Pertinently, at that point of time the appellant was minor. She was barely 13 years of age, whereas, the respondent was 19 years old. The appellant attained majority on 05.03.2005. She was residing in her parental home all through. Even though, the appellant attained majority in the year 2005, she continued to reside at her parental home till November 2014. During this period, she was studying and on account of her own merit, she was able to secure a job with Delhi Police in the said year.”

It would be instructive to note that the Bench then brings out in para 4 that, “We may note that the case of the appellant is that since 2005, the appellant’s family was trying to persuade the respondent to take the appellant to the matrimonial home. However, the respondent showed no interest. It was only after the appellant got a job with Delhi Police in the year 2014, that the respondent became interested in calling the appellant to the matrimonial home on account of the fact that she had secured a stable job and income.”

Worse still, the Bench then observes in para 5 that, “The case of the appellant is that she started living with the respondent on 20.11.2014. The respondent was unemployed and was an alcoholic, and used to physically abuse the appellant, and demanded money from her. She has stated that the respondent and his family were only interested in her salary which she was deriving from her job. They were insisting that she parts with her salary since the respondent himself was unemployed.”

Furthermore, the Bench then remarks in para 6 that, “Further case of the appellant was that in March, 2015 the respondent demanded Rs. 1 Lakh from her on account of some emergency. The appellant, however, refused since she was not having that kind of money. The appellant has stated that the respondent gave her beating on that occasion. She further stated that since she was subjected to physical and verbal abuse, and she was also finding it difficult to balance her work and family life with an abusive, alcoholic, and demanding husband, the relationship between the parties sored, and the appellant was kicked out from her matrimonial home on 11.04.2015. After that she has never been taken back into the matrimonial home.”

As a corollary, the Bench then divulges in para 7 that, “In these circumstances, she preferred the aforesaid divorce petition. The reason why the Family Court has dismissed the said divorce petition is that the appellant did not lead any independent evidence to establish the allegations made against the respondent, namely, that he was an alcoholic, and; that he used to beat her up. The Family Court found that the appellant had not established the incident of the appellant being beaten up on 11.11.2015 as there was no medical examination report of the appellant to support that she was subjected to any physical beating. There was no police complaint made by the appellant in that regard. So far as desertion is concerned, the Family Court has found that the appellant had left the matrimonial home on her own, and that there was nothing to suggest that she had been turned out of matrimonial home. The Family Court found that there was no animus deserendi established on the part of the respondent.”

As it turned out, the Bench then observes in para 8 that, “We have heard the learned Counsels for the parties. We have also interacted with both the parties today. During our interaction, we put it to the respondent that the parties, though married in the year 2000, have hardly lived together for a period of about 5 months. They have been separated since 11.04.2015 – which is well over 6 years ago. We enquired from the respondent as to what is there left in this marriage. In response to our query, the respondent states that he is a labourer and he wishes to continue the relationship. When we put to him that: would it not be better that they part ways, since there is no real marriage in existence and, apparently, there never was one, the prompt response of the respondent was that what will happen to the amounts spent by him on the education of the appellant. The respondent claims that he funded the education of the appellant, and it is on account of the fact that the appellant has got educated and found a job in Delhi Police, that she does not wish to reside with him.”

Truth be told, the Bench then clearly states in para 9 that, “From our interaction with the respondent, it has become absolutely clear to us that the interest of the respondent in continuing with the relationship is only on account of the fact that the appellant has a job with Delhi Police, and he views the alleged expenditure – which he claimed he has incurred on the education of the appellant (and which is disputed by the appellant), as an investment, which would not bear fruit in case parties were to part ways with judicial intervention. It is, thus, clear that the respondent is primarily eyeing the income of the respondent which she derives on account of her job from Delhi Police.”

Quite astoundingly, the Bench then noted in para 10 that, “There is absolutely no explanation as to why the appellant was not taken into the matrimonial home soon after she attained majority in the year 2005, and why she had to live with her parents till the year 2014. This circumstance lends support to the appellant’s case that the respondent was himself not initially interested in accepting the appellant, and took her to the matrimonial home only after she got a job, because he eyed her income.”

Most significantly, the Bench then lays bare in para 11 what forms the cornerstone of this notable judgment that, “Since she was living with her parents till 2014, it is obvious that all her expenses for living and upbringing would have been borne by her parents. Nothing to the contrary was placed on record by the respondent. The continued distance between the parties even after the appellant attained majority would, in itself, have caused trauma and resulted in cruelty to the appellant apart from everything else. If the appellant would not have been interested in starting a married life and establish a conjugal relationship with the respondent, she would not at all have gone to live with the respondent. The fact that she went to live with him in 2014, after getting a job with Delhi Police, belies the respondent’s stand that the appellant wanted to ditch the respondent since she had secured a job with Delhi Police. In fact, this circumstance probabalises the stand of the appellant, that the respondent harassed the appellant to pocket her income, since he was himself unemployed. The respondent, it appears, viewed the appellant as a cash cow and became interested in her only after she got the job with the Delhi Police. Such brazenly materialistic attitude of the respondent, with no emotional ties, would have in itself caused mental agony and trauma to the appellant sufficient to constitute cruelty to her. We cannot ignore, that generally it is the desire of every married woman – particularly belonging to the economic strata to which the parties belong, to get married and start a family. However, in the case in hand, it appears the respondent was not interested in nurturing the marriage, but only interested in the appellant’s income.”

No less significant is what is then stated in para 12 that, “In matrimonial matters, the quality and quantity of evidence required to accept the plea by one or the other party, cannot be same as that required in criminal proceedings. Standard of proof in matrimonial proceedings is founded upon the preponderance of probabilities, and not upon a fact being established beyond all reasonable doubts. Looking to the overall circumstances, we are of the considered view that the appellant was able to establish the ground of cruelty and desertion. In Samar Ghosh v. Jaya Ghosh, 2007 (4) SCC 511, the Supreme Court has, inter alia, observed as follows:

“101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of “mental cruelty”. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive:

(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.

(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.

Bank guarantees are individual contracts between the bank and the creditor and are independent of the underlying contract between the beneficiary and the person at whose instance the bank guarantee is given. In simple terms it is an assurance to a beneficiary that the financial institution will uphold the contract between the customer and beneficiary if the customer is unable to do so. Bank guarantees provide better negotiating position in business conclusions and helps in securing one’s claims and performance of the other party in the transaction. Further, the rights and obligations therein are to be determined on its own terms. Bank guarantees frequently play an important role in disputes, either in the background as a relevant fact of the dispute or an active role for one party to commence litigation or arbitration proceedings, for example, to prevent wrongful invocation.

INVOCATION

It is relevant to note that in case of an unconditional bank guarantee the bank cannot even question the invocation, notwithstanding a dispute between the parties. In the case of a conditional bank guarantee, there can be no injunction, if the stipulated conditions are satisfied. It was further clarified in Hindustan Construction Co. Ltd. v. State of Bihar AIR1997SC3710 that if at the time of invocation of the bank guarantee, it is well within the terms it is not even necessary that the beneficiary should assess the quantum of loss and mention that figure.

In National Thermal Power Corpn. Ltd. v. Flowmore (P) Ltd., (1995)4SCC515, the Supreme Court of India noted that the respondent had kept all the bank guarantees alive by renewing them from time to time during the pendency of arbitration and that the appellant did not invoke the bank guarantees while the arbitration was in progress does not lead to the conclusion that the bank guarantees cannot be invoked while the arbitration is pending.

EXCEPTIONS TO INVOCATION

It is a settled law that invocation of unconditional and irrevocable bank guarantees cannot be stayed by the courts, except in the following cases:

1) Fraud

Invocation of a bank guarantee can be injuncted in cases of fraud. The Supreme Court of India in the case of U.P. State Sugar Corporation v. Sumac International Ltd., (1997) 1 SCC 568 held that a fraud in connection with an unconditional bank guarantee, for grant of a stay, should be such that it vitiates the very foundation of such a bank guarantee. No other fraud is good enough to meet the test, and moreover, the concerned bank needs to have notice of such fraud.

2) Irreparable harm and special equities

The Supreme Court in Dwarikesh Sugar Industries Ltd v. Prem Heavy Engineering Works (P) Ltd & Another, (1997)6SCC450 reiterated the Massachusetts Court in Itek Corporation v. First National Bank of Boston Etc. 566 Fed Supp 1210 stating that an irretrievable injury would mean existence of exceptional circumstances where it is absolutely impossible for the guarantor to reimburse himself if he ultimately succeeds in final adjudication of the disputes. Further, this will have to be decisively established and it must be proved to the satisfaction of the tribunal that there would be no possibility whatsoever of the recovery of the amount from the beneficiary, by way of restitution.

PRACTICALITY OF THE EXCEPTIONS

The above mentioned are established principles of law, it is also important to note that every case has to be decided with reference to the facts involved therein. Bank guarantees often raise complex practical questions. A party that fears that its contractual partner will invoke the bank guarantee based on unjustified grounds must act quickly and must decide how it will act and against whom, the bank or against its contractual partner. On approaching the courts, they are granted any interim relief and mostly give a specific time period to invoke the arbitration, failing which, the interim relief granted is vacated.

In SES Energy Services India Ltd. v. Vedanta Limited and Ors. [O.M.P. (I) (COMM.) 285/2021] the parties executed three agreements wherein as per one of them the petitioner had to furnish a bank guarantee towards the respondent. The respondent attempted to invoke the bank guarantee. The parties invoked an arbitration and subsequently the petitioner preferred an application under Section 9 of the Arbitration and Conciliation Act, 1996 (“Act”), alleging that it is a case of fraud. The Court was inclined to examine the matter in depth as all the obligations under the three agreements stood discharged by the petitioner. The High Court of Delhi noted that the petitioner failed to make out a case of fraud, in the execution of the bank guarantee, or that of the bank guarantee, per se.

In Siemens Gamesa Renewable Energy Projects Private Limited v. SPRNG Vayu Vidyut Private Limited, [OMP (I)(Comm) No. 251 of 2021], the parties entered a contract wherein the respondent gave an interest free advance to the petitioner and in lieu of the same, the petitioner furnished two advance bank guarantees. Thereafter, the contract was terminated and subsequently the petitioner refunded the said advance. However, the respondent on the other hand failed to return the said bank guarantee and further requested extensions multiple times. The aggrieved Petitioner preferred a petition under section 9 of Act, seeking urgent interim protection to restrain the Respondent from invoking the advanced bank guarantees furnished and restraining bank from acting upon any such request. The High Court of Delhi granted a stay on the invocation of bank guarantees, noting that the purpose for which the bank guarantee had been rendered had concluded i.e., the advance on account which the bank guarantees were tendered had been returned. In view thereof, it is pertinent to note that in cases of termination of contracts, normally the courts do not go into the debate whether the termination was valid or not, and let that decision remain with the arbitrators. Moreover, the courts at times have also directed that the bank guarantees be extended subject to the invoker giving a short notice prior to invoking the same, so as to give time to the other party to approach the court/arbitrator to stay such invocation.

The Supreme Court of India in Gangotri Enterprises v. Union of India (2016)11SCC720 took a fresh view on invocation, herein the parties entered into two separate contracts namely Agra-Etawah and Anand Vihar respectively, wherein only one of them i.e., Anand Vihar contract constituted for the appellant to furnish a bank guarantee. The Anand Vihar contract was completed, and the appellant was intitled to a released bank guarantee. However, the respondent attempted to invoke the bank guarantee in lieu of the non-completion of the Agra-Etawah contract. To settle the dispute related to Agra-Etawah work, the appellant invoked arbitration and moved an application under Section 9 of the Act, before the District Judge, Allahabad seeking order on encashment of the bank guarantee deposited by it in the Anand Vihar, against the respondents. Ultimately, the matter reached the apex court wherein it was held that while there can be no quarrel as to the proposition laid down in the cases pertaining to encashment of bank guarantees, the same would not be applied in every case. Therefore, whenever any party would seek to encash the bank guarantees provided by other party to the contract based on their claims of damages, such an attempt would not be successful as a claim of damages is not a sum due and payable in present.

CONCLUSION

Bank guarantees have proved to be a huge advantage in a modern business setting and emerged as the backbone of several commercial transactions. The courts in India generally have refrained or kept to minimal interference on account of the invocation of bank guarantees and arbitrations, while upholding the spirit and purpose of both. It has been consistently held that unnecessary interfere with and restrain on invocation of bank guarantees would defeat the purpose of having independent guarantees as contracts. Although the general approach is to uphold the letter and spirit of bank guarantees, the courts and arbitrators are conscious of mischievous invocations and apply the exceptions to prevent miscarriage of justice by restraining one party from advantage of a legal loophole.