Becoming the first Court of Appeals to address an issue that has divided the bankruptcy and district courts, the Ninth Circuit adopted a forceful view of Stern v. Marshall,1 to hold in In re Bellingham Insurance Agency, Inc. 2 that absent the parties’ consent, the limitations imposed by Article III of the Constitution deprive a bankruptcy judge of the constitutional authority to enter judgment on fraudulent transfer claims brought against parties who have not filed proofs of claim. Agreeing with the majority of lower courts to address the issue, the Ninth Circuit went on to conclude that, notwithstanding the absence of express statutory authority to do so, a bankruptcy judge may issue proposed findings and conclusions on such claims in lieu of entering judgment. Finally, the Ninth Circuit held that the right to adjudication before an Article III judge can be waived, creating a split of authority on this issue with the Sixth Circuit’s recent decision in Waldman v. Stone. … [Read more...] about Ninth Circuit Weighs in on Stern: Absent Waiver, Non-Claimant Defendants Entitled to Final Adjudication in District Court
Share Tweet Plus One Pin It Email Print By: Ashok K.M May 27, 2018 8:10 pm Change Font Size ‘Once a sale deed has been registered, the registering authority is having no power or authority under the [Registration] Act, 1908 to cancel the registration, even if an allegation of impersonation/fraud is alleged.’ The Full Bench of Allahabad High Court in Kusum Lata vs. State of UP has held that a registered sale deed cannot be cancelled or set aside by registering authority or by any authority invoking administrative powers, if the registration is questioned even on the count of impersonation/ fraud. The Bench of Justice Govind Mathur, Justice Ram Surat Ram (Maurya), and Justice Jayant Banerji were answering reference to it by a division bench noticing divergent opinion in two earlier division bench judgments. Following were the questions referred: Whether after a sale deed has been registered, the Assistant Registrar has any … [Read more...] about Registering Authority Cannot Cancel/Set Aside An Already Registered Sale Deed: Allahabad HC (FB) [Read Order]
Share Tweet Plus One Pin It Email Print By: Ashok Kini June 30, 2018 2:53 pm Change Font Size ‘When the Legal Services Authorities Act refers to ‘determination’ by the Lok Adalat and ‘award’ by the Lok Adalat, the said Act does not contemplate nor require an adjudicatory judicial determination, but a non-adjudicatory determination based on a compromise or settlement, arrived at by the parties, with guidance and assistance from the Lok Adalat.’ The Chhattisgarh High Court, in KK Distributers vs. State of Chhattisgarh, has held that the Lok Adalat cannot adjudicate a lis on merit except by way of settlement. In a case which was referred to Lok Adalat, the Lok Adalat Bench had passed the order on merit holding that the offence so sought to be compounded are non-compoundable and passed the orders on merits by dismissing the application for compounding. This was challenged before the high court. Justice Goutam Bhaduri observed that … [Read more...] about Lok Adalat Doesn’t Have Power To ‘Hear’ Parties To Adjudicate Cases As A Court Does: Chhattisgarh HC [Read Order]
Share Tweet Plus One Pin It Email Print By: P.V Dinesh December 19, 2018 3:24 pm Change Font Size Recently, on 26th November 2018, the Corporate Affairs Secretary Mr.Injeti Srinivas informed the country that out of the 9,000 cases filed before the National Company Law Tribunal (NCLT), 4,400 cases have been disposed of, leading to a recovery of approximately Rs.71,000 crores. The total bad debts assessed so far that is owed to the public sector banks in India amounts to Ten Lakh Crores of Rupees. As per the report published by the Insolvency and Bankruptcy Board of India(“IBBI”),in respect of the 32 companies which are stated to have been resolved in insolvency resolution process under the Insolvency and Bankruptcy Code, 2016 (“IBC”), there is a recovery of Rs.49,783 crores which amounts to 56 % recovery. The balance, i.e., Rs.39,619 crores is written off, which would otherwise have been payable by these 32 companies. In the case of the 136 … [Read more...] about Insolvency Proceedings – Safe Passage for Defaulters?
The constitutional jurisprudence developed by the Supreme Court of India in relation to the enforceable fundamental rights is unique, as the court has by its innovative use of the tool of judicial interpretation obliterated the age old distinction between the generations of rights as propounded by the French jurist Karel Vasak. The court has read into fundamental rights, (fundamental rights apparently belong to the first generation of human rights) specifically Article 21, which provides for the guarantee against the violation of right to life and personal liberty, several of the second and few of the third generation rights. The first generation of human rights better known as civil and political rights are the guarantees against the possible excesses of the State and hence it is based on the principle of non-intervention by the State in individual affairs on the basis of formal equality. These rights do not demand positive actions from the State. On the contrary, the second … [Read more...] about Adjudication Of Second And Third Generation Of Human Rights