Securitization Act 2002

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest

The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest act extends to the whole of India

Under section 69 of Transfer of Property Act, mortgagee can take possession of mortgaged property and sale the same without intervention of Court only in case of English mortgage. (English Mortgage is where mortgagor binds himself to repay the mortgaged money on a certain date, and transfers the mortgaged property absolutely to the mortgagee, but subject to a proviso that he will re-transfer the property to the mortgagor upon payment of the mortgage money as agreed). In addition mortgagee can take possession of mortgaged property where there is a specific provision in mortgage deed and the mortgaged property is situated in towns of Kolkata, Chennai or Mumbai. In other cases possession can be taken only with the intervention of court.

Therefore till now Banks/Financial Institutions had to enforce their security through court. This was a very slow and time-consuming process. There was also no provision in any of the present law in respect of hypothecation, though hypothecation is one of the major security interest taken by the Bank/Financial Institution.

Keeping in mind the above factors among many other the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act was enacted with effect from 21.6. 2002.

The Act deals with three aspects.

1. Enforcement of Security Interest by secured creditor (Banks/Financial Institutions)

2. Transfer of non- performing assets to asset reconstruction company, which will then dispose of those assets and realize the proceeds.

3. To provide a legal framework for securitisation of assets.

What is security interest, property, hypothecation

Security Interest means right, title and interest of any kind whatsoever upon property, created in favor of any secured creditor and includes any charge, hypothecation, assignment other than those specified below.

Property means

1. Immovable property
2. Movable property
3. Any debt or any right to receive payment of money, whether secured or unsecured
4. Receivables, whether existing or future
5. Intangible assets, being know-how, patent, trade mark, licence, franchise or any other business or commercial right of similar nature.

Hypothecation means a charge in or upon any movable property, existing or future, created by a borrower in favor of a secured creditor without delivery of possession of the movable property to such creditor, as a security for financial assistance, and includes floating charge and crystallization into fixed charge on movable property.

Exclusions from 'security interest'

Exclusions from 'Security interest' - Provision of the Act shall not apply to the following :

1. A lien on any goods , money or security given by or under the Indian Contract Act, 1872 or the Sale of Goods Act, or any other law for the time being in force.
2. A pledge of movables within the meaning of section 172 of Indian Contract Act,
3. Creation of any security in any aircraft as defined u/s 2(1) of Aircraft Act,
4. Creation of any security interest in any vessel as defined in section 3 (35) of Merchant Shipping Act.
5. Any conditional sale, hire -purchase or lease or any other contract in which no security interest has been created.
6. Any right of unpaid seller u/s 47 of Sale of Goods Act.
7. Any properties not liable to attachment or sale under first provision to section 60(1) of Code of Civil Procedures.
8. Any security interest for securing repayment of any financial asset not exceeding one lakh Rupees.
9. Any security interest creating in agricultural land.
10. Any case in which the amount due to less than 20% of the principal amount and interest thereon (i.e. where borrower has repaid more than 80% of principal amount and interest. )

Who is a secured creditor & when can security be enforced

A secured creditor means any bank or financial institution or any consortium or groups of banks or financial institutions and includes -

1. Debenture trustee appointed by bank or financial institution
2. Securitisation company or reconstruction company
3. Any other trustee holding securities in whose favor security interest is created for due repayment by any borrower of any financial assistance.

When can security be enforced

Any security interest can be enforced by a secured creditor without intervention of Court or Tribunal in accordance with the provisions of the Act.

Such action can only be taken any borrower, who is under liability to a secured creditor under a security agreement, makes any default in repayment of secured debt or any installment thereof and the account is classified as NPA. (Non Performing Asset by the secured creditor)

No action can be taken if:

1. It is agricultural land
2. When amount due is less than Rs. one Lakh
3. When amount due is less than 20% of the principal amount and interest thereon, i.e. the borrower has repaid more than 80% of the principle amount and interest.

No action can be taken if the debt is time barred under the Limitation Act.

What is a NPA (non performing asset) Action for enforcement of security interest can be initiated only if the secured asset is classified as Non Performing Asset. Non Performing Asset means an asset or account of borrower, which has been classified by a bank or financial institution as sub-standard, doubtful or loss asset, in accordance with the directions or guidelines relating to asset classification issued by RBI. An amount due under any credit facility is treated as "past due" when it has not been paid within 30 days from the due date. Due to the improvement in the payment and settlement systems, recovery climate, upgradation of technology in the banking system, etc., it was decided to dispense with 'past due' concept, with effect from March 31, 2001. Accordingly, as from that date, a Non performing asset (NPA) shell be an advance where interest and /or installment of principal remain overdue for a period of more than 180 days in respect of a Term Loan, the account remains 'out of order' for a period of more than 180 days, in respect of an overdraft/ cash Credit(OD/CC), the bill remains overdue for a period of more than 180 days in the case of bills purchased and discounted, interest and/ or installment of principal remains overdue for two harvest seasons but for a period not exceeding two half years in the case of an advance granted for agricultural purpose, and any amount to be received remains overdue for a period of more than 180 days in respect of other accounts. With a view to moving towards international best practices and to ensure greater transparency, it has been decided to adopt the '90 days overdue' norm for identification of NPAs, form the year ending March 31, 2004. Accordingly, with effect form March 31, 2004, a non-performing asset (NPA) shell be a loan or an advance where; interest and /or installment of principal remain overdue for a period of more than 90 days in respect of a Term Loan, the account remains 'out of order' for a period of more than 90 days, inrespect of an overdraft/ cash Credit(OD/CC), the bill remains overdue for a period of more than 90 days in the case of bills purchased and discounted, interest and/ or installment of principal remains overdue for two harvest seasons but for a period not exceeding two half years in the case of an advance granted for agricultural purpose, and any amount to be received remains overdue for a period of more than 90 days in respect of other accounts.

Workmen Compensation Act - A Quick Overview

Workmen Compensation Act: A Brief

The Workmen’s Compensation Act, 1923 provides for payment of compensation to workmen and their dependants in case of injury and accident (including certain occupational disease) arising out of and in the course of employment and resulting in disablement or death. The amount of compensation to be paid depends on the nature of the injury and the average monthly wages and age of workmen. The minimum and maximum rates of compensation payable for death (in such cases it is paid to the dependents of workmen) and for disability have been fixed and is subject to revision from time to time.

Applicability of the Law?

The Act extends to the whole of India. The act applies to factories, mines, docks, construction establishments, plantations, oilfields and other establishments which are explicitly mentioned in Schedule II and III of the act. Moreover it excludes establishments covered by the ESI Act.

Every employee including those employed through a contractor except casual employees, who is engaged for the purposes of employer’s business and who suffers an injury in any accident rising out of and in the course of his employment, shall be entitled for compensation under this Act.

Definition of the Workmen under the Act:

“Workman” means any person other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer’s trade or business.

A “Casual” workman is one who is engaged on work which is of a casual nature or which is of a non-recurring or intermittent nature.

Scope of Cover:

The Workmen’s Compensation Insurance Business in India is controlled by the Workmen’s Compensation Insurance Tariff (W.C.Tariff). The Tariff provides for two types of Insurance as follows:

Table A: This policy provides indemnity to the Insured if any employee in the Insured’s immediate service shall sustain bodily injury by accident or contracts disease arising out of and in the course of his employment by the Insured in the Business and if the Insured shall be liable to pay compensation for such injury either under.

Table B: This Policy provides indemnity to the Insured against their legal liability under the Fatal Accidents Act, 1855, and at Common Law. (This Policy is not issued to cover employees who fall within the definition of “workmen” under the Workmen’s Compensation Act, 1923, as amended).

Calculation of the Sum Assured:

This insurance policy stands subject to the provisions of the Workmen’s Compensation Act. The sum insured is based on the annual wages of the workmen during the insurance period. So the compensation is adjusted at the end of the policy period or submission of the statement of actual wages paid during the insurance period. The policy can also cover the medical expenses of the employer’s workmen up to the limit specified under the policy.

Employer’s Liability Arises:

ü if personal injury is caused to a workman by accident arising out of and in the course of his employment;

ü If a workman employed in any employment contracts any disease, specified in the Act as an occupational disease peculiar to that employment.

Employer’s Liability Does not Arise:

ü Any injury that does not result in a fatality or disability for 3 days subsequent to the accident.

ü The first 3 days of a temporary disability if the total temporary disability period does not exceed 28 days.

ü Any non-fatal injury caused by an accident that is directly attributed to.

ü Influence of drinks or drugs.

ü Willful disobedience of an order that would have secured the workman’s safety.

ü Willful removal or disregard of any safety device.

ü War or nuclear group of perils.

ü Liability towards employees of the contractors of the insured (unless specifically declared).

ü Any employee who is not a “Workman” as per the Workmen’s Compensation act.

ü Liability assumed under an agreement.

ü Occupational diseases unless cover is extended on payment of extra premium.

ü Any change in statute provisions after the policy has commenced.

When the Compensation is to be paid :

ü Compensation shall be paid as soon as it falls due.

ü In cases where the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the extent of liability which he accepts, and, such payment shall be deposited with the Commissioner or made to the workman, as the case may be, without prejudice to the right of the workman to make any further claim.

Penalty Applicable for Non Payment of Claim :

ü If the employer defaults in paying the compensation due under this Act within one month from the date it fell due and has a material justification for the same than in addition to the amount of the arrears, he will have to pay a simple interest thereon at the rate of twelve per cent per annum or at a higher rate but not exceeding the maximum of the lending rates of any scheduled bank.

ü If the employer defaults in paying the compensation due under this Act within one month from the date it fell due and does not have a material justification for the delay than he can be directed to pay, in addition to the amount of the arrears and interest a further penalty of a lumpsum amount not exceeding fifty per cent of the total Arrears payable.

Divorce under Hindu Law-Cruelty

Under clause (ia) of sub-section (1) of section 13 and under sub-section (1) of section 10 of the Hindu Marriage Act, 1955 cruelty is a ground of divorce as well as judicial separation respectively. Whether a particular act or conduct complained of is covered under the ground of cruelty or not, will always be decided on facts and circumstances in each case.

What is Cruelty?
Under the English Law, legal concept of cruelty is conduct of such a character as to cause danger to life, limb or health (physical or mental) or as to give rise to a reasonable apprehension of such danger. Before the amendment of the Hindu Marriage Act, which was brought in the year 1976, the rigid meaning and interpretation was given to the ground of cruelty. But even before the amendment, the Supreme Court in Dastane Vs. Dastane, AIR 1975 SC 1534, tried to give a literal meaning to the ground of cruelty applicable in terms of divorce or judicial separation.

Though the concept of English Law and the Hindu Marriage Act in terms of cruelty as a ground for divorce or judicial separation is more or less the same, yet the learned Judges in India still hold that marriage is a sacrament taking into consideration the social and cultural conditions of our country.

In Sukumar Vs Manohar Shivaram Jagesha, the Court observed:
The question whether a particular act or behaviour would amount to cruelty or not depends upon the character, way of life of the parties, their social and economic conditions, their status, customs and traditions. Each case is to be decided on the facts of its own. The judges and the lawyers should not import their own notions of life while dealing with matrimonial cases.

Classification of Cruelty:
Cruelty is classified into two heads.
1. Physical cruelty and
2. Mental cruelty

Physical Cruelty:
It is a settled law that physical violence is not necessary ingredient of cruelty. Unending accusations and imputations can cause more pain and misery than a physical beating. Therefore, it goes without saying that the act of cruelty consists of mental torture or physical violence. If it is a physical violence, there will be no problem for a court to arrive at a decision while determining a case presented before it, but in case of mental torture or harassment, the court finds comparatively more difficult to come to final conclusion.

Firstly the court begins its enquiry as to the nature of cruel treatment as well as the impact of that treatment in the mind of the spouse. Ultimately it is a matter of inference to be drawn by taking into account of the nature of the conduct and its effect on the complaining spouse.

Kaushalya Vs Wisakhi Ram:
The husband had been ill treating the wife and beating her. On one occasion she had to go to the police station to lodge a complaint against her husband. The Punjab and Haryana High Court observed that according to the standards of all civilized world these acts would constitute cruelty, even though injuries might not be serious as to require medical treatment.

Saptmi Vs Jagdish:
It was held that if a husband constantly abuses and insults the wife and occasionally resorts to physical violence against her, it amounts to cruelty.

Mental Cruelty:
An act of mental cruelty is far more severe and dangerous than an act of physical violence. The eye opener cases of mental cruelty are Mohit Bhatnagar Vs Sangeeta Bhatnagar and Deepak Johri Vs Kum Kum Johri, the case of Mohit Bhatnagar has since been decided by the Matrimonial Court after 7 years of long battle and the case of Deepak Johri is still pending in the High Court of Delhi.

Deepak Johri and his wife Kum Kum Johri have been living separately for more than 12 years and the Court has yet to decide their fate. Criminal proceedings against Mohit Bhatnagar are still going on. As per my opinion, the non-decision of such cases for a very long time, also amount to mental torture, agony, and punishment of the highest order. In other words this amounts to mental cruelty to both the parties on account of delay oriented procedure prevalent in the courts, whatever be the reasons.

In the judgment of the Supreme Court in V. Bhagat Vs D. Bhagat,(1994)1SCC337,AIR1994SC710 the learned judges granted the relief by cutting short the delay oriented procedure adopted by the District Court as well as the High Court of Delhi. Every matrimonial petition may be heard on day to day basis, and be disposed of within six months from the service of the petition on the respondent. The High Court is also required to dispose of every appeal within three months of the service of the notice of appeal to the respondent.

Inspite of the fact that the law provides that every matrimonial proceeding should be completed within six months, no serious efforts are made either by the courts or by the advocates to adhere to the time limit. And the reality is that no matrimonial proceedings are completed before five or ten years. This long delay itself is also the cause of mental torture or mental cruelty to all aggrieved parties facing matrimonial proceedings in the courts.

How to prove mental cruelty?
The standard of in case of mental cruelty need not be beyond reasonable doubt, as is required in the criminal trials. What is required in such cases is that the court must be satisfied of preponderance of probabilities and not satisfaction beyond all reasonable doubts.

The act of mental cruelty in matrimonial homes, matrimonial violence and wife battering continues all over the world. Often the unwanted acts of mental cruelty prove to be much more devastating than the acts of physical violence.

Mental cruelty can be inflicted by many ways. A false criminal case to harass the husband would be an act of cruelty. Refusal to have marital intercourse, false complaints to the employees by the wife, an act of nagging, false, scandalous, malicious and baseless charges etc. come under the purview of mental cruelty.

Kiran Mandal Vs Mohini Mandal:Punjab-Haryana High on 10/3/1989
Where a wife is found to be of bad temperature and makes false allegations against her husband that he had illicit relations with his brother's wife. It amounted to an act of cruelty.

Harbhajan Singh Vs Amarjit Kaur: Supreme Court on 23/10/2002
The wife not only refused to do household work, but in the presence of guests, also forced the husband to clean the dining table, utensils and crockery. She even slapped the husband. She used to keep her husband waiting outside the house for half an hour or more on his return from the office. She went to the extent of levelling false charges of embezzlement against her husband to the bank authorities, where he was employed.

Shanti Devi Vs Raghav Prakash: Rajasthan High Court on 29/10/1984

The wife made an allegation that her husband was impotent. She also put on fire the doctoral thesis of her husband, which was yet to be submitted. The husband was a lecturer in the college.The value of the thesis to a student who wants to do Ph. D. is undoubtedly great and any damage done to it is bound to upset him and causes irreparable mental agony and torture. Unfortunately, the burning of thesis by Shanti Devi wife cannot be ignored and it is bound to be treated as an act of great cruelty.

Ashok Kumar Vs Vijay Lakshmi:
False allegations of the wife that an attempt by the husband was made to burn her amounts to cruelty.

Condonation of Cruelty:
Condonation is forgiveness of conjugal offence with full knowledge of all circumstances. To constitute condonation there must be two things, viz., forgiveness and restoration. Forgiveness is the essence of condonation. To be condonation, it must completely restore the offending party and must be followed by cohabitation. There is no condonation unless conjugal cohabitation has been resumed or continued.

While filing a petition for divorce, on the ground of cruelty in the matrimonial court, the aggrieved party is required specifically to mention that he / she has not condoned the cruelty. Even in an affidavit, he / she is required to mention the non - condonation of cruelty to get a decree of divorce on the basis of cruelty.

Custody of Children

Section 26 of the Hindu Marriage Act, 1995 deals with the custody of children. The matrimonial court can grant the custody of the child, as an interim measure, in a case pending before it.

The Section gives the appropriate court (usually the Court of Additional District Judge) ample power, to issue directions, or pass orders, during the pendency of the proceedings, or at any time thereafter, for the custody, maintenance and education of minor children of the couple who are partner to the proceedings.

The wishes of the children, wherever it is possible to do so, are always kept in mind by the courts, while passing orders in connection with the custody of the minor children. The power to make such orders includes the power to revoke, suspend or vary them and includes interim orders as well as final orders.

Property of Minor Children:
This section does not speak about the property of the minor children. In fact, the provisions of this section can not be interpreted to affect the ordinary law of guardianship of minor children. This section does not speak about the property of the minor children; it speaks only of their custody, maintenance, and education, or in other words the guardianship of their persons.

The factors, which the court keeps in mind, while deciding the question of the minor children:
There are of course various factors, which have to be kept in mind by the courts deciding the question of the custody of the minor children. The High Court of Himachal Pradesh observed that “The welfare of the minor is the crucial thing to be regarded by the court”. (In Paraminder Lal Sarin Vs Suma Lata, AIR 1984 HP1)

The orders passed by the competent court in regard to the custody of the children, pending disposal of the case, are not final. These are interim orders. They are subject to change, depending upon the circumstances of the case. The court has very wide powers to change, vary or alter its earlier order in case the need arises.

Procedure followed by the courts while deciding the custody of minor children:
The normal procedure adopted by the courts is very simple. The mother invariably gets the custody of the child, if the child is below the age of five years. After the child has crossed the age of five, the custody of the male child goes to the father, and custody of female goes to the mother. But the court has ample powers to deviate from the normal procedure, taking into consideration the facts and circumstances of each case brought before it.

A. V. Venkatakrishnaiah Vs S A Sathyakumar:
The father had remarried and had a son from his second wife. It was quite probable that more issues may be appearing in due course. The step – motherly treatment is proverbial in this country. In the court also minor refused to go to his father. The father was likely to have not much time left to look after his son, who would be left with his step mother. Taking all the facts into consideration, the Karnataka High Court held that the welfare of the child was not secure in his father’s house, and its custody was refused to him though being an officer in a Bank, he was in a position to look after the child well and had made several deposits in the bank in the name of the child. Therefore the petition of the father for the custody of the child was, dismissed by the Hon’ble High Court.

Court decision safeguards abandoned Child’s future:
The five - month old unnamed girl, who was abandoned by her mother three days after being born, was restored to her guardians, thanks to the landmark judgment by the Lucknow bench of Allahabad High Court. Ironically, the High Court did not honor the claims of either Mr. Sarwan Kumar Sinah to seek custody of the child, or those of Mr. Shakil Aziz, who approached the court on religious grounds.

The Division Bench of the High court, comprising Justice D. K. Trivedi and Justice I. P. Vashistha, lamented the absence of any rules. Devices or regulations adopted by the State Government for adoption and upbringing of such abandoned children, especially since it is a welfare state, spending enormous amounts on populist scheme. The court ruled in favour of a bank officer. Mr. Manoj Rajan Asthana, because he could bring up the child in the best possible manner. His wife, Mrs. Nandini Asthana being a science post graduate, who could take good care of the child’s education in a better way than the wife of the other two contenders, who were not even graduates, the Court observed.

“Both me and Mrs. Asthana are highly educated, financially better placed than the other two contenders, and are much younger than them to ensure proper upbringing of the child” the Asthanas had said.

Regarding Mr. Shakil Azizs claim that being the daughter of Muslim parents, the child should be handed over to a Muslim family only, the Judge observed: “Every infant is a child of God, radiating innocence of an angel. It has no religion, it is man made customs and practices, which emboss him with sectarian brands.” The Court said that child should make her own decisions about her religious beliefs when she comes of age. The Court hoped that her foster parents would bring her up in a liberal environment where human values were given better consideration than dogmatic philosophies.

The unfortunate child was born at the local Dufferin Hospital on April 1st, 1995. Her mother’s name, as per hospital records is Shama, wife of Khalil, a resident of Rakabganj, Lucknow. However, when her mother deserted her and a search was launched, the address was found to be fake. The child, who would otherwise have landed into some orphanage proved to be luckier than other such abandoned children as on reading the news in a local paper, Mr. Shravan Kumar Sinah, a school teacher from Gaya (Bihar) who happened to be in town to visit his brother, went to the hospital to seek the girl’s custody as he had been childless for the past 29 years.

However Mr. Shakil Aziz, also without a child for the past 22 years, finding that there was already a claimant for the child’s custody, appealed to the High Court, seeking guardianship of “daughter of a Muslim family”. But the Court ruled that since Ms. Shama’s name and address could not be verified there was no proof of her religion. While the case was still pending in the High Court, an issueless Mr. Asthana also filed an application to seek the custody of the child.

The Court, while seeking advice of various government and non government organisation on the issue, ordered Dufferin Hospital Superintendent Dr. S. S. Negi to take of the child while the case was being decided in the Court. The High Court also asked Judge J. C. Mishra to ascertain the most suitable guardian for the child. The High Court in its order, has attached a condition that if the Asthana family was not found taking good care of the child, the court will change its decision.

Free air tickets: Unfair trade practice?

May 22, 2008

The Delhi State Consumer Disputes Redressal Commission's decision to fine mobile phone firm Vodafone Rs 50 lakh (Rs 5 million) for offering prizes of gold coins and a Maruti [Get Quote] SX4 as part of a promotional scheme is something all marketers in the country would do well to pay attention to.

Vodafone offered subscribers 10 gold coins a day and one SX4 as a bumper prize, but the chance of winning was restricted only to those customers who used their phone to make calls for at least 20 minutes a day.

A consumer organisation filed a case before the DSCDRC arguing that Vodafone was luring subscribers into making unnecessary calls so that they could qualify for the list of customers from whom a lucky one would be chosen.

The commission has held that this qualified as an unfair trade practice under the Consumer Protection Act, for two reasons. One, it gave the impression the customer was not paying anything for participating whereas s/he actually was paying by making more calls every day. Two, the contest/lottery was meant to promote Vodafone's business interests.

DSCDRC's calculations showed that Vodafone had earned around Rs 2 crore (Rs 20 million) extra during the period the scheme was in operation and was offering gifts worth about Rs 10 lakh (Rs 1 million), so the fine was fixed at Rs 50 lakh.

Vodafone will presumably challenge the judgement, but what is important is the implication of the consumer protection law as interpreted by the DSCDRC.

Essentially, the law appears to be outlawing any promotional schemes which seek to increase the company's business -- so, if Vodafone had offered the chance to win a gold coin and an SX4 to all its customers, the commission would not have had a problem; but since they offered it only to those who used their services for more than a certain period of time a day, and this induced others to try and get into this category, the commission said the scheme was unfair.

Since this is what most marketing companies do, almost by rote, it is important to consider its implications.

Take the case of a credit card company, say, which offers a holiday for two to one of its Platinum Card holders. What is it doing this for? Clearly to let the Gold and Silver card holders know they're missing out on something and to encourage them to become large spenders so as to qualify for a Platinum Card.

Or an airline that offers free tickets to one lucky member of its frequent flyer programme, in addition to the other benefits they get. Once again, the idea is to let others know there are great benefits to be had by flying more.

After the DSCDRC verdict, it is likely that all such schemes can be classified as unfair trade practices. Perhaps it's time to take a more realistic look at the country's consumer laws.

Limited Liability Partnership

A form of general partnership that provides an individual partner protection against personal liability for certain partnership obligations.

The Limited Liability Partnership (LLP) is essentially a general partnership in form, with one important difference. Unlike a general partnership, in which individual partners are liable for the partnership's debts and obligations, an LLP provides each of its individual partners protection against personal liability for certain partnership liabilities.

In 1991 Texas enacted the first LLP statute, largely in response to the liability that had been imposed on partners in partnerships sued by government agencies in relation to massive savings and loan failures in the 1980s. The Texas statute protected partners from personal liability for claims related to a copartner's negligence, error, omission, incompetency or malfeasance. It also permanently limited the personal liability of a partner for the errors, omissions, incompetence, or negligence of the partnership's employees or other agents. By the mid-1990s, at least twenty-one states and the District of Columbia had adopted LLP statutes.

The limit of an individual partner's liability depends on the scope of the state's LLP legislation. Many states provide protection only against tort claims and do not extend protection to a partner's own negligence or incompetence or to the partner's involvement in supervising wrongful conduct. Other states provide broad protection, including protection against contractual claims brought by the partnership's creditors. For example, Minnesota enacted an expansive LLP statute in 1994. This piece of legislation provided that a partner in an LLP was not liable to a creditor or for any obligation of the partnership. It further provided, however, that a partner was personally liable to the partnership and copartners for any breach of duty, and also allowed a creditor or other claimant to pierce the limited liability shield of a partner in the same way a claimant may pierce the corporate veil of a corporation and personally sue an individual member of the corporation.

In states that recognize LLPs, a partnership qualifies as an LLP by registering with the appropriate state authority and fulfilling various requirements. Some states require proof that the partnership has obtained adequate liability insurance or has adequate assets to satisfy potential claims. All states require a filing fee for registration and also require that an LLP include the words Registered Limited Liability Partnership or the abbreviation LLP in its name.

A partnership that renders specific professional services may form an LLP and register as a professional limited liability partnership (PLLP). A PLLP is generally the same as an LLP except that it is an association solely of professionals. Each state specifies the qualifying professions for a PLLP. This business form is typically available to attorneys, physicians, architects, dentists, engineers, and accountants. New York's LLP statute restricts eligibility solely to partnerships that render professional services.

This entry contains information applicable to United States law only.

PM INAUGURATES THE PRAVASI BHARATIYA DIWAS

The Prime Minister, Dr. Manmohan Singh, today inaugurated the Pravasi Bharatiya Diwas 2009 at Chennai. Launching a new initiative called ‘The Global Indian Knowledge Network’, the Prime Minister said that this network will connect people of Indian origin from a variety of disciplines to users at the national, state and local levels in India. He added that the Network will facilitate transfer of knowledge and serve as a ‘virtual think tank’ to generate new ideas on issues such as development, education and health-care.

Following is the text of the Prime Minister’s address on the occasion:

“I am delighted to be here in the presence of such a distinguished gathering of overseas Indians. I wish you and your families a very happy, peaceful, prosperous and purposeful new year. While you are in our country, I wish you all a very pleasant stay in our country.

We have congregated in the southern most state of India and in a city where traditions and culture blend with modernity and technology with great ease.. I am sure many of you will be visiting the great temples at Mahabalipuram. They stand testimony to our sea-faring history. The ancient Tamil people, the ancient Telugu people, the people of Bengal and Orissa, have all sailed through the sea to our East, not to conquer lands but to conquer the hearts and minds of the people they came in contact with.

This Pravasi Bharatiya Diwas is our contemporary tribute to that great spirit, to that great heritage and to the excellent work you all continue to do as people of Indian origin in your respective countries. It is a tribute to your spirit of adventure and enterprise which have transformed you and the Indian Overseas community into powerful agents of social and economic change and the world admiration in distinct lands.

You come to this Conference from distant lands from all around the world. Our Chief Guest today, His Excellency Mr. Ramdien Sardjoe, the Vice President of Suriname, comes from the other side of our planet. Yet, he has inside him the blood of his Indian ancestors. His leadership and contribution to public life are a testimony to the achievements of the sons and daughters of India who have travelled to distant lands, and excelled in their respective professions. We take great pride in their achievements.

I welcome you, Mr. Vice President, to this ancient land of Bharat. I am sure your heart beats faster on this soil. Let me assure you, our hearts too beat for you and for the millions of Pravasis, every moment of our lives.

We feel proud of the great achievements of the people of Indian origin around the world. More than any other people, the people of India and of Indian origin know the meaning of tolerance and the art of living together regardless of caste, creed, religion or language.

Pluralism and the willingness to live with each other despite our differences is a deeply embedded trait of Indian culture. That is why I have often said that those who pursue the politics of exclusion, of monotheism, who divide people between “us” and “them”, betray the very idea of India. Our civilization was built on reason; on the willingness to engage in dialogue. As my friend Prof. Amartya Sen has reminded us, we Indian people have been over the centuries, an argumentative people. But I also say that we have been a consensual civilization.

The recent terrorist attacks in Mumbai were a grim reminder of the grave threat posed by extremism and terrorism to our pluralistic and liberal traditions. There are some who would not like to see India succeed. But we have shown, over and over again, that we will not allow the forces of terrorism and extremism to destabilize our polity, our economy and our society. We have taken several measures to strengthen national security, to promote national cohesion and we will continue to work with the international community to ensure that there are no safe havens and launching pads for terrorists.

Despite the global economic downturn, the fundamentals of Indian economy continue to remain strong. We expect to achieve a growth rate of about 7% this year, which will be among the highest in the world. Much of India’s growth is internally driven and I expect we can maintain a strong pace of growth in the coming years. That certainly will be our ambition.

India is actively involved in the meetings of the global G-20 countries, which are deliberating on the creation of a new global financial structure. We need to ensure that any new architecture that emerges is suited to the new challenges and vulnerabilities facing the world economy and simultaneously it must be reflective of the changes that have taken place in the economic structure over the years. Countries like India have a right to be given their due place in the evolving scheme of things.

A few months ago the international community lifted restrictions to end our nuclear isolation of the last thirty four years. The overseas Indian community, specially in the United States, played a key role in ensuring this outcome and in mobilizing congressional support for it in the United States. For this we are truly grateful to all of you. But much more importantly, this is a sign of the growing role that Indian origin communities are now playing in public policy and opinion making across the world. We applaud you for that contribution.

I am sure that each one of you would have sensed the growing respect with which India is today regarded in the world. India’s rise is increasingly being regarded as an important dimension of the emerging international world order. Our counsels on key global challenges are not just being heard, but are being actively sought and in this enterprise of changing the image of India, the overseas Indian community have played a magnificent role and I thank you for that.

The Overseas Indian Citizenship Scheme which we had announced in 2006 has elicited an overwhelming response. I am therefore happy to announce that henceforth OCI card holders who are qualified professionals – doctors, dentists, pharmacists, engineers, architects and chartered accountants - will have the benefit of practicing their professions here in our country. Further details to operationalize this benefit are being worked out.

I am happy to launch today a new initiative called ‘The Global Indian Knowledge Network’. This Network will connect people of Indian origin from a variety of disciplines to users at the national, state and local levels in India. My hope is that the Network will facilitate transfer of knowledge and serve as a ‘virtual think tank’ to generate new ideas on issues such as development, education and health-care.

I would like to say a few words about the five million Indian workers working in the Gulf. I have seen their contributions first-hand when I recently visited Oman and Qatar. I was amazed to see their grit, their determination, and how they are contributing magnificiently to processes of wealth creation in these countries.

We are therefore concerned at the rise in tensions in the region as a result of the attack in Gaza that has led to the needless loss of lives of many innocent men, women and children. India has strongly condemned these incidents and it is our hope that the international community would get together and help restore peace in the region as soon as possible. I wish to reiterate our unstinted and unwavering support for the just Palestinian cause.

We have put in place several measures for better protection and welfare of our workers overseas, including by entering into inter-governmental agreements.

I am happy to inform you that we have launched a comprehensive e-governance project on migration. Under this project, every worker will be issued a ‘Smart Card’ that will contain all details of the worker, his work contract, his employer, his insurance etc. This data will also be available to the Government of India as well as our missions overseas. The objective of this project is to transform emigration process into a simple, transparent, orderly and humane process.

Till now, at these gatherings, we have celebrated the spirit of adventure and enterprise of the global Indians. This year, let me add, that we have made contact with a distant pravasi that you have all grown up hearing about – Chanda-mama!

When Chandrayaan-I soared into the skies last October, it was not just a display of India’s technological achievements. It was the fulfillment of an ancient dream, to meet Chandamama! I assure you, ladies and gentlemen, that one day an Indian, desi or pravasi, will complete that journey and we will be able to land a man on the moon from India.

It is this sense of confidence in our future that defines the India of today. I urge you all to come and participate in this great adventure of human development within the framework of a free and open society and an open economy. I have often said no where else a billion people are trying to seek their economic and social salvation in the framework of a functioning democracy committed to respect for all fundamental human rights, commitment to the rule of law and if India succeeds it will have profound implication for the development of the rest of the country of the third world. India welcomes your participation in our social and economic development. Modern science and technology have created many new frontiers of knowledge to be harnessed for human development and well being. I hope your conference gives us more ideas on how we can work together for India’s progress and your welfare. With these words, I once again welcome you all to this magnificent Conference.”

SC moves HC against CIC order on judges' assets

NEW DELHI: Worried over the fallout of a recent Central Information Commission (CIC) order on making the assets of judges public, the Supreme Court registrar on Friday challenged it before the Delhi high court saying that this information, not being in public domain, could not be given to RTI applicants.

The high court is the appellate authority for challenging CIC's decisions — a fact that led to this unusual situation of the apex court moving a lower court over a dispute.

The apex court said information relating to declaration of assets by Supreme Court judges to the Chief Justice of India (CJI) was not a mandatory exercise under law, but driven by an informal resolution of May 7, 1997 — implying that information on judges' assets did not come under RTI's purview.

The petitioner added said the CIC had committed an error by equating the Supreme Court and the CJI as one and the same authority whereas the CJI's position was quite distinct from that of the Supreme Court in terms of the RTI Act.

"CJI is not a public authority, as defined under the RTI Act, and therefore, is not required to designate a central public information officer (central PIO) for it, or to supply information held or maintained by it," the appeal stated.

The CIC had on January 6 only directed the central PIO of the SC to furnish information as to whether any declaration of assets had been filed by SC judges or not.

But even this apparently innocuous order has led the Supreme Court to challenge the CIC order before the HC, saying that a public authority was bound to give information if these were available in public domain.

The SC registrar added that details of judges' assets was not information which was held by or under control of a public authority, since it was voluntarily furnished to the CJI, who himself could not be included in the definition of "public authority".

"There is nothing under the Constitution of India or under any other law which requires judges of the Supreme Court to declare their assets to the Chief Justice of India," said the petition, which was drafted by advocate Devdatt Kamath and settled by Solicitor General G E Vahanvati.

Quoting section 8(1)(j) of the RTI Act which imposed a ban on furnishing of personal information, the SC Registrar said any query relating to assets of judges voluntarily declared before the CJI squarely fell within the meaning of Section 8(1)(j).

Moreover, "the office of the Chief Justice of India is a distinct office. It performs certain constitutional functions and cannot be equated with or said to be part of the registry of the Supreme Court, which holds information relating to other matters of the Supreme Court under the RTI Act."

Dr. Kalam inaugurates SCAORA website at first L.M. Singhvi lecture

Dr. Kalam inaugurates SCAORA website at first L.M. Singhvi lecture
1/17/2009

Former President Dr. A.P.J. Kalam today inaugurated the SCAORA website at first Dr. L. M. Singhvi Memorial Lecture organized by Supreme Court Advocates-on-Record Association (SCAORA) and supported by Indlaw at New Delhi.

The lecture was presided over by Hon’ble Mr. Justice K.G. Balakrishnan, Chief Justice of India and attended by dignitaries from the legal fraternity.

Speaking on the topic ‘Law, Technology & Society : Dynamics’ Dr. Kalam said that scientists and technologists have to be partners with legal community and evolve with legal framework so that judiciary is able to administer justice speedily using benefits of technology.

He emphasized the need to simplify law, discard irrelevant and old Acts with certain periodicity. On the issue of terrorism, he suggested the need for evolving an aggressive Mission called National Campaign to Eradicate Terrorism (NCET) to create:
(a) Unified intelligence Agency
(b) Enact a law with stringent punishments and faster justice to the perpetrators of the crime in a time bound manner
(c) Create a sense of awareness among the people to work
(d) Implement National Citizen ID card for all citizens
(e) Equitable National development for inclusive growth.

He emphasized on the role of law in dealing with cyber attacks during a conflict among the countries as well as issues of territorial jurisdiction. Answering media persons after the lecture, he told Indlaw that technology can help in identifying the movement and flow of information and identify what kind of wrong going on.

Indlaw correspondent

3 Chief Executives of Indian Company Jailed in Fraud Case

By JEREMY KAHN and HEATHER TIMMONS

Published: January 11, 2009

HYDERABAD, India — The brothers who founded the outsourcing company Satyam Computer Services have been interrogated and jailed, and Srinivas Vadlamani, who resigned as chief financial officer after a huge fraud was disclosed there, was arrested as well on Saturday night.

Inspector General V. S. K. Kaumudi of the police crime investigation unit said that Mr. Vadlamani was being held on charges of criminal conspiracy, forging accounts and cheating as part of the same case that has been registered against the Satyam founders, B. Ramalinga Raju and B. Rama Raju.

On Sunday, Mr. Vadlamani was remanded to judicial custody by a magistrate on Sunday until at least Jan. 23. He was then sent to join the Raju brothers in Hyderabad’s Chanchalguda prison. Also on Sunday, police officials said that they had raided the residences of all three men, and removed several boxes of documents from the home of B. Ramalinga Raju’s in the upscale neighborhood of Jubilee Hills.

B. Ramalinga Raju resigned as chairman in a letter to the company Wednesday in which he confessed to faking profit and revenue. Charges being considered against Mr. Raju and his brother include cheating, forgery, criminal breach of trust and falsifying documents, the authorities said. Like Mr. Vadlamani, the two are to remain in judicial custody until Jan. 23, and will be held in the Hyderabad prison. Located in Hyderabad’s old city, the prison is a sprawling colonial-era jail with concrete watchtowers, a massive steel studded front gate and electrified wire ringing high stone walls.

On Sunday the government of India announced a new board for Satyam. P.C. Gupta, India’s minister of corporate affairs, speaking at a press conference in New Delhi, said the government had selected three “eminent persons” to serve on Satyam’s board, the minimum number of directors required under Indian law. The three are Deepak Parekh, the chairman of the Housing Development Finance Corp., Kiran Karnik, a former head of the National Association of Software and Services Companies, the country’s leading information technology trade association, and C. Achuthan, a lawyer and former member of the Securities and Exchange Board of India, the country’s market regulator.

Mr. Gupta said that the board would meet within the next 24 hours and decide who would serve as Satyam’s new chairman. The government dismissed Satyam’s old board on Friday. He said the new board could select other directors as required. In India, a board may have up to 10 members and Satyam’s former board had nine directors.

Mr. Gupta also said that the government would consider requests from Satyam’s large shareholders for seats on the board, but that it was up to the new board to decide who would be invited to join. Lazard, the French investment bank that has increased its stake in Satyam to 7.4 percent, has said it is seeking input into the company’s decision-making, but has not yet requested a seat on the board.

“All options are open,” Mr. Gupta said. “Whatever is in the interest of the company, then the necessary steps will be taken.”

In a statement released Sunday, a company spokesperson described the announcement of the new board members as “the best news we’ve received in the past four weeks.”

“This is a vital stabilizing development for Satyam, and it marks the beginning of a new chapter in the company’s history,” the statement said.

Mr. Gupta said that government investigators looking into the accounting fraud that has brought Satyam to the brink of bankruptcy have made “commendable progress in the case” over the past three days, but he declined to reveal any specifics about what investigators have uncovered.

“It is important to ensure the continuity of the company in the interest of its shareholders, employees, customers and other stakeholders both in India and abroad,” Mr. Gupta said.

Satyam, one of India’s largest outsourcing companies, is struggling to survive after the revelations of fraud, and the government has taken control of the company’s board. B. Ramalinga Raju said in his letter that no board members were aware of the fraud at the company. S. Bharat Kumar, lawyer for the Raju brothers, said in an interview that he believed the two had a “good case” for being released on bail, but the police said they intend to push to keep the brothers locked up while awaiting trial.

Satyam, which counts one-third of the Fortune 500 companies among its clients, employs 53,000 people, about two-thirds of them in India. Government agencies have moved quickly since Wednesday to shore up the company and to reassure investors that Indian publicly traded companies are safe. They passed new rules Friday that will require the largest public companies on India’s stock exchange to submit their numbers to additional review by outside auditors. Lazard Asset Management, Satyam’s largest shareholder, is agitating for a voice at Satyam. The money management arm of the investment bank Lazard has asked the Indian government to be consulted on any changes at the company, and sent letters to India’s corporate affairs minister and the market regulator, SEBI, with that request, a Lazard representative said Saturday.

Wipro, Infosys 'not to poach' Satyam staff or clients

NEW DELHI: Expressing solidarity, country's top IT majors such as Infosys and Wipro on Sunday said they will not proactively approach clients of Satyam but made it clear that they will not say 'no' if clients approach them. "We have already made the announcement that we will not poach any Satyam employee. We will not proactively approach their clients and customers either... but clients have to decide for themselves and they have the right to choose their partner at work," Infosys HR director MohanDas Pai said. "I can't say no to customers if they come to me with more businesses. We already have customers which are common with Satyam. If they are giving us more business we will not say no. It is definitely creating problems for customers," Wipro CFO Suresh Senapathy said in an interview to a Television channel. Analysts has said that over half a dozen rivals of the tainted IT firm Satyam Computer have started exploring ways to take over the business from its various clients, a global technology consultancy firm had said. Satyam is likely to see its clients as well as employees deserting it soon due to the competitive wooing by rivals and top IT firms such as Infosys would continue to shore up their market share, analysts at Forrester Research said in a report. "Large and small clients alike will look to other suppliers they already work with as an immediate fallback position as the confusion continues. More than half a dozen providers have already called Forrester to discuss competitive strategies for taking over business in joint accounts," it added. "Both clients and employees will desert Satyam as a result of competitive wooing. In our interactions with several of Satyam's employees across the organisation they showed utter frustration," Forrester Research's VP and PrincipalAnalyst, John McCart and its Senior Analyst in India, Sudin Apte said in the report. IT industry body Nasscom has also said that it will refrain from poaching employees from Satyam. The government's move to constitute a new three-member board with HDFC chairman Deepak Parekh, former NASSCOM chief Kiran Karnik and former SEBI member C Achuthanis expected to restore the confidence of the investors, employees and clients as well.

Satyam ex-CFO denies role in fudging 11 Jan 2009, 2200 hrs IST, TNN

HYDERABAD: Satyam's chief financial officer (CFO) Vadlamani Srinivas on Sunday claimed that he had no knowledge of fudging of over Rs 7,000 crore by former chairman B Ramalinga Raju.

According to sources, Vadlamani in his confession stated he wasn't aware of the fraud as his 80-member team provided him documents and he blindly signed on them.

Crime Investigation Department sleuths raided houses of the Raju brothers in Jubilee Hills and Vadlamani's residence at Habsiguda on Sunday.

Around 8am, five special teams of CID personnel reached the houses of the Rajus on Road Number 62, Jubilee Hills, and Vadlamani's house on Street Number 3, Habsiguda, armed with search warrants. During the searches, the special teams, comprising CID and city police personnel, seized several documents and copied data from computers on the three premises. The CID is also working with SEBI and Registrar of Companies in the searches at Satyam's offices in Hyderabad.

The CID sleuths said there were no raids on houses of the directors of the superseded board (the Centre named three new directors on Sunday) and none of them had been arrested. "As part of the investigation, all persons or organisations involved in the Satyam case will be questioned. But so far, Satyam's board of directors, independent directors and PwC personnel have not been questioned,'' additional DG (CID) A Sivanarayana said.

Vadlamani, who was questioned by CID officials for nearly 18 hours, was produced before VI additional chief metropolitan magistrate P Ramakrishna on Sunday evening. He was remanded in judicial custody till January 23 and was shifted to the Chanchalguda jail.

Police have sought custody of Vadlamani and their petition will come up for hearing on Monday. The CID officials were tightlipped on the revelation. "Vadlamani has to be questioned further. So, we have moved a petition seeking his custody,'' IG (CID) VSK Kaumudi said.

Satyam to carry on, protect its staff

Hyderabad, January 8

A day after disgraceful exit of its chairman B Ramalinga Raju under the shadow of the largest-ever corporate fraud, Satyam Computers today said it was exploring “strategic options, including scouting for a buyer” to bail out of the crisis and admitted that the liquidity position was “discouraging”.

In a damage-control exercise, a seven-member task force, headed by the interim CEO Ram Mynampati, appeared before the media here and assured that their immediate priority was to ensure continuity in business and protection of the interests of its employees and customers.

The interim CEO did not rule out the possibility of recommending “criminal action” against Raju, who admitted to the fraud amounting to over Rs 7,000 crore.

“We have started the process of ascertaining the veracity and accuracy of his (Raju’s) statements made in the resignation letter. Once we complete the process, we will determine the next course of action,” Ram said to repeated queries from the media.

Asserting that he had no personal knowledge about the accounting irregularities and fudging of figures, Ram, who is one of the three members now remaining on the Satyam board, said he was “shocked” over the revelations. “We have an unimaginable crisis on hand. But, we are confident of putting it behind us,” he said.

Meanwhile, the company’s chief financial officer (CFO) V Srinivas sent in his resignation today.

“We have not accepted his resignation. The board meeting (scheduled on January 10) will take a decision,” the interim CEO said.

Pleading ignorance about the whereabouts of Ramalinga Raju, he said no police complaint has been filed against him. “We have no contact with him. I do not know where he is,” Ram said.

Asked whether the company has enough liquidity to pay salaries to the employees, he said the balance sheets were being verified and immediate steps would be taken to raise the liquidity through various options.

The company would appoint an investment banker at the earliest to advise on the strategic options in the best interests of the shareholders. The interim CEO made it clear that the company would fully cooperate with the regulatory authorities.

“A team from SEBI is here and had discussions with our associates,” he said.

Asked whether a new auditing firm would be appointed to verify the records, he said “We are yet to ascertain the processes used by PwC. After we complete the process, we will take a decision.” The efforts were also on to induct new members into the Board.

“We are committed to ascertaining facts about Raju’s disclosures and working with regulatory authorities closely. Our immediate job is to ensure continuance in business, complete transparency and smooth transition of leadership,” Ram said.