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“Writ Petition By Borrowers Challenging SARFAESI Proceedings Initiated By Private Banks/ARCs Not Maintainable”: Supreme Court

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Bhuvana Iyer, Mumbai Uncensored, 13th January 2022 :

The Supreme Court Wednesday said borrowers, aggrieved by proceedings initiated under the SARFAESI ACT by the bank or the assets reconstruction company (ARC), have to avail the remedy under this law and no writ petition would be maintainable. 

The apex court held this while vacating the order passed by the Karnataka High Court which had directed maintenance of status quo with regard to possession of mortgaged properties subject to the borrowers making a payment of Rs 1 crore with the ARC concerned. 

The High Court of Karnataka entertained writ petitions under Article 226 of the Constitution of India filed by borrowers against an Assets Reconstructing Company and passed an interim order directing for maintaining status quo with regard to SARFAESI action (possession of the secured assets). Challenging this, the Assets Reconstructing Company (ARC) preferred appeals before the Apex Court.

A bench of Justices M R Shah and B V Nagarathna, while referring to an earlier judgement delivered by the top court, opined that filing of writ petitions by the borrowers before the high court under Article 226 of the Constitution in the case was an “abuse of process” of the court. 

The apex court delivered its judgement on the pleas filed by the ARC challenging the order passed by the high court, which had entertained the writ petition and passed interim order directing for maintaining status quo with regard to the proposed action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act (SARFAESI) 2002.

The bench said the high court orders directing to maintain status quo with respect to possession of secured properties on payment of Rs three crore in all is “absolutely unjustifiable” as the dues are to the extent of approximately Rs 117 crores.

“Filing of the writ petition by the borrowers before the high court is nothing but an abuse of process of court. It appears that the high court has initially granted an ex-parte ad-interim order mechanically and without assigning any reasons”, it said. 

“Even otherwise, it is required to be noted that a writ petition against the private financial institution – ARC – appellant herein under Article 226 of the Constitution of India against the proposed action/actions under section 13(4) of the SARFAESI Act can be said to be not maintainable”, the apex court noted.

It said the secured creditor or its assignor have a right to recover the amount due and payable to it from borrowers.

“The stay granted by the high court would have a serious adverse impact on the financial health of the secured creditor/assignor. Therefore, the high court should have been extremely careful and circumspect in exercising its discretion while granting stay in such matters”, the bench said, adding, “In these circumstances, the proceedings before the high court deserve to be dismissed.”

The bench said an ARC cannot be said to be performing public functions which are normally expected to be performed by the state authorities.

“During the course of a commercial transaction and under the contract, the bank/ARC lent the money to the borrowers herein and therefore the said activity of the bank/ARC cannot be said to be as performing a public function which is normally expected to be performed by the state authorities”, it noted.

The apex court, while allowing the appeals, vacated the interim order of August 2015, which was further extended by the orders passed in February 2017 and March 2018.

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Open Network for digital commerce

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How ONDC aims to change the Indian e-commerce industry.

Khushi Shah – Mumbai Uncensored, 3rd June 2022

The lockdown brought about a dramatic growth of e-commerce in the past few years, which has hampered the business of physical retailers.With super high class companies who have invested billions of dollars in research and development in India we have been going through the abuse of ‘aggregator superpower’ a monopolising model of e-commerce. Allegations by CAIT and others have ranged from predatory pricing and prioritising certain sellers to the foreign ownership of Amazon and Flipkart. 

An attempt by the Indian government is being made to break down giant monopolies like amazon, flip kart, swiggy and so on with the introduction of ONDC which is supposed to be as revolutionary as UPI itself. It will not just be limited to products but also to services such as mobility, grocery, food order and delivery, hotel booking and travel, and many others. 

ONDC is an open technology network based on open protocol which is expected to digitise the entire value chain, standardise operations, promote inclusion of suppliers, derive efficiencies in logistics and enhance value for consumers.

 The official government note was circumspect. “ONDC is a globally first-of-its-kind initiative that aims to democratise digital commerce, moving it from a platform-centric model to an open network,” it said. “[It] will enable buyers and sellers to be digitally visible and transact through an open network. No matter what platform or application they use.”

E-commerce is a complex business where every business has its unique supply chain and processes and standardisation is a challenge. It would require reconfiguration, including a complete revamp of their systems and losing advantages like control over the user interface and consumer behaviour insights. For the government however it will provide better control over what is sold and bought. In UPI, a recent government stipulation set a market share limit of 40 per cent for any service provider, which immediately dampens the growth of a market leader PhonePe which is owned by Walmart outside India.

In a marketplace-centric model, a buyer first selects a platform and then searches for a product there where then platform acts as an intermediary for the buyer and seller. In the new model, the buyer will search for the product first and then pick the right seller offering that item. The platform the seller is on becomes secondary. It aims at promoting open networks developed on open-sourced methodology, using open specifications and open network protocols independent of any specific platform. This provides all the small and medium fishes in the ocean with an opportunity to grow big, and simultaneously give a boost to Make in India.

“It’s (Open Network for Digital Commerce) an idea whose time has come. We owe it to the millions of small sellers to show an easy way to participate in the new high-growth area of digital commerce,” Nilekani, the co-founder and non-executive chairman of Infosys, himself supported this platform. 

This makes it the most potent weapon the ruling dispensation has yet unleashed on India’s e-commerce duopoly.

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Pet breeders stand to lose license if unregistered

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Khushi Shah – Mumbai Uncensored, 24th May 2022

More than three years after the Prevention of Cruelty to Animals (Pet Shop) Rules, 2018, making it mandatory for pet shops to be registered with the respective State Animal Welfare Board (SAWB) companies still go one to flout laws.

On June 13, 2021 Corporation officials said they are now keeping a close eye on the pet trade and are ready to seize the shops if the owners do not get valid registration and trade licences.

As per the Prevention of Cruelty to Animals (Pet Shop) Rules, 2018, no person should sell or trade in pet animals, whether retail or wholesale, or establish operate a pet shop, or any other establishment engaged in sale, purchase or exchange of pets without obtaining a certificate of registration from the State Animal Welfare Board (AWB).

On 26th august 2021 the petitioner’s counsel Sanjukta Dey told the bench that she had visited shops in Crawford Market and Kurla as recently as three days ago and found violations of the earlier high court order, which had directed immediate closure of such illegal shops. The shops require permission from the State Animal Welfare Board and they had seen puppies being drugged and animals kept out in the sun or out in the rain with no food or water. Due to the continued lack of regulation, illegal pet shops have mushroomed all over the city. It is alleged that such establishments are keeping animals domesticated as well as wildlife from India and abroad in “utterly unhygienic conditions” and the life and liberty of thousands of animals are at stake as they languish and die in miserable conditions in unlicensed and unregulated pet shops. They are also often taken away from mothers a a young age.

May 23 (PTI) The Delhi High Court on Monday sought the Delhi government’s stand on a public interest litigation seeking directions on dealing with unregulated, unlicensed and illegal pet shops operating in the city.

“The non-implementation of the Prevention of Cruelty to Animals (Pet Shop) Rules, 2018 is a complete dereliction of duty by the respondents (authorities), and by doing so, the respondents’ actions are affecting animal welfare negatively and preventing the compliance of the Prevention of Cruelty to Animals Act, 1960 and the Wildlife (Protection) Act, 1972,” the petition filed through lawyers Supriya Juneja and Aditya Singla said.

Many pet shops and breeders operating in Mumbai are not licensed and the state urges pet owners to bring home pets only from licensed breeders.

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Govt. Plans to Cut Cooking Oil Tax

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The Indian market after seeing an unprecedented rise in the prices of edible oils plans to cut taxes on edible oil to keep the prices in check.

Khushi shah – Mumbai Uncensored, 5th May 2022

The war, combined with weather disruptions that limited harvests in other vegetable oil-producing regions, led to a supply shortage of sunflower oil. The ban by the world’s biggest palm oil producer and exporter on 28th April 2022, on the export on the widely used edible oil and all the conflicts between Russia and Ukraine that already upended the global agricultural trade in the world, sent oil prices skyrocketing in the market.

India is particularly sensitive to rising vegetable oil prices as it is dependent on imports for 60% of its needs. Inorder to keep the prices in check ,India, the world’s top importer of vegetable oils is planning to cut taxes on some edible oils to cool the domestic market after the war in Ukraine. 

India has tried to reduce prices in the past, including reducing import duties on palm, soybean oil and sunflower oil, and limiting inventory to prevent stocking the oil.[ In September 2021] The import taxes on palm oil had been slashed to 2.5% from 10 %, while soy oil and sunflower oil had been reduced to 2.5 per cent from 7.5 per cent. 

The reduction in these taxes were aimed at bringing down prices of the edible oils in India and boost consumption, effectively increasing overseas buying by the south Asian country.It would also bring down edible oil prices ahead of key festivals, when edible oil demand rises in the country

However, The moves so far have not been effective enough to cut down the rates of oil in the market 

India, the world’s top importer of vegetable oils, wants to reduce the agricultural infrastructure and development cess on imports of crude palm oil to below 5% . According to reports, it is said that the government is now considering reducing import duties on crude varieties of canola oil, olive oil, rice bran oil and palm kernel oil from 35% to 5% to help boost domestic supplies. The new tax amount is still being deliberated The cess is levied over and above basic tax rates on certain items, and is used to finance agriculture infrastructure projects. The base import duty on crude palm oil has already been scrapped.

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