Article

Payment recovery mechanism against erring foreign importers

By Aman Gupta

Focusing on the exporters’ obligations upon non-realization of export payments from erring foreign importers, the article in this issue of Corporate Amicus discusses at length the legal and other remedies available with the exporters where the export transactions are not secured in any manner. The article in this regard analyses the civil remedies, remedy through alternative dispute resolution mechanism, remedy through Directorate General of Foreign Trade, and remedy by filing suit against the erring foreign importers in the subject foreign country. Further, since the non-realization/ repatriation of export proceeds is considered a contravention, the options like, representation before the Authorised Dealer Bank and/ or the RBI, write-off and compounding, under the FEMA laws have also been discussed here...

Notifications and Circulars

• Declaration by auditor – Companies (Acceptance of Deposits) Rules 2014 amended
• Signing of e-forms by RP – Companies (Registration of Charges) Rules 2014 amended
• Small companies – Companies (Specification of Definition details) Rules, 2022 amended
• Overseas Direct Investment – New regime notified
• Guidelines for preferential issue and institutional placement of units by listed InvITs and REITs revised
• Overseas investment by Alternative Investment Funds / Venture Capital Funds – SEBI notifies guidelines
• Insolvency Professional – IBBI (Insolvency Professionals) Regulations, 2016 amended
• Fees to interim resolution professional and resolution professional – IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 amended
• Sale of one or more of assets of the corporate debtor – IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 amended

Ratio decidendi

• Having purchased the corporate debtor in a slump sale, successful bidder cannot thereafter request to convert it into a sale as a going concern – NCLT, Ahmedabad
• Resolution Plan ignoring dues of State Government/Legal Authority to be rejected – Supreme Court
• SEBI Circular on standardisation of procedure for debenture holder trustees has retroactive application – Supreme Court

News Nuggets

• IBC prevails over Customs Act – Customs cannot recover dues once moratorium imposed
• Insolvency – Threshold monetary limit for initiating CIRP can be met jointly
• Insolvency – Erstwhile Insolvency Professional not entitled to be heard by Adjudicating Authority before decision on replacement
• Arbitration agreement embedded in a contract is a separate and severable clause
• Arbitration – Failure to mention seat of arbitration and participation in arbitration proceedings without any protest to be considered as determination of venue and seat
• Person availing services of bank covered under definition of ‘consumer’ under Consumer Protection Act, 1986
• Commercial suits – Pre-litigation mediation is mandatory – No absolute right to file a civil suit