2019 SCC Vol. 2 February 14, 2019 Part 1

Insolvency and Bankruptcy Code, 2016 — S. 29-A(c) — Ineligibility to be Resolution applicant: For the purpose of applying sub-section (c) of S. 29-A, the corporate debtor may be under the management of the person referred to in S. 29-A, the corporate debtor may be a person under the control of such person, or the corporate debtor may be a person of whom such person is a promoter. Further, the expression “management” would refer to the de jure management of a corporate debtor and the expression “control”, denotes only positive control, which means that the mere power to block special resolutions of a company cannot amount to control and “control”, as contrasted with “management”, means de facto control of actual management or policy decisions that can be or are in fact taken. Further, in the expression “management or control”, the two words take colour from each other, and thus viewed, what is referred to in clauses (c) and (g) is de jure or de facto proactive or positive control, and not mere negative control. The provision ensures that if a person wishes to submit a resolution plan, and if such person or any person acting jointly or any person in concert with such person, happens to either manage, control, or be promoter of a corporate debtor declared as a nonperforming asset one year before the corporate insolvency resolution process begins, is ineligible to submit a resolution plan. Further, despite the fact that the relevant time for the ineligibility under clause (c) to attach is the time of submission of the resolution plan, antecedent facts reasonably proximate to this point of time can always be seen, to determine whether the persons referred to in S. 29-A are, in substance, seeking to avoid the consequences of the proviso to clause (c) before submitting a resolution plan. [Arcelormittal India Private Ltd. v. Satish Kumar Gupta, (2019) 2 SCC 1]

Telecom Regulatory Authority of India Act, 1997 — Ss. 11(1)(a) & (b) and 36 — Regulation of price of TV channels, promotional schemes, bundling i.e. clubbing of channels in a bouquet, etc. by TRAI — Permissibility of: The provisions of the TRAI Act have to be viewed in the light of protection of the interests of both service providers and consumers and no constricted meaning can be given to the provisions of TRAI Act. Copyright Act will operate within its own sphere, the broadcaster being given full flexibility to either individually or in the form of a society charge royalty or compensation for use of copyright. TRAI, while exercising its regulatory functions under the TRAI Act, does not at all, in substance, impinge upon these rights, but merely acts as a regulator in the public interest. TRAI Act, being a statute conceived in public interest, which is to serve the interest of both broadcasters and consumers, must prevail, to the extent of any inconsistency, over Copyright Act which is an Act which protects the property rights of broadcasters. To the extent royalties/compensation payable to the broadcasters under the Copyright Act are regulated in public interest by TRAI under the TRAI Act, the former shall give way to the latter.[Star India Private Ltd. v. Department of Industrial Policy & Promotion, (2019) 2 SCC 104]

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