Corporate Lawyer Supreme Court of India

Corporate Lawyer Supreme Court of India for Business and Commercial Appeals

A corporate dispute in the Supreme Court of India is never a routine business quarrel. By the time a matter reaches the Supreme Court, a company has likely already been through a High Court, the NCLT and NCLAT, Securities Appellate Tribunal, competition appellate forum, consumer forum or some other court or tribunal hearing petitions under a statutory regime. While there is often significant financial exposure at stake, money is not always the sole issue.

Supreme Court litigation may impact management decisions, contractual rights, insolvency proceedings, shareholder rights, regulatory liability, business reputation or establish the interpretation of a significant commercial issue for years to come.

For that reason, a Corporate Lawyer Supreme Court of India matter requires focused experience beyond general corporate advisory. The attorney should understand not just the business relationship at issue, but also the statutory appellate route available, the order being challenged, the record developed in the lower forum and the narrow grounds upon which the Supreme Court will entertain the dispute.

Many businesses approach the Supreme Court as they would any other appellate court. They want to argue the entire dispute anew.

This will not always work.

Appeal to the Supreme Court lies directly in many corporate statutes, usually only on questions of law. But other disputes may come to the Court through a special leave petition filed under Article 136 of the Constitution of India. Article 136 is a grant of discretionary power to the Supreme Court. Grant of special leave is not a matter of right. The Court has repeatedly held that Article 136 special leave petitions are an extraordinary jurisdiction and should be used sparingly. Sci Tech Industries Ltd. & Anr vs K.S. Jaganathan & Ors.

When structuring your matter from the outset, this distinction could be important for companies, directors, promoters, shareholders, insolvency professionals, investors and regulated businesses.

BK Singh Advocate and corporate law firm help navigate corporate, commercial and tribunal disputes where any legal route could ultimately include Supreme Court of India proceedings.

The first question is not necessarily, “Should we appeal?”

Instead, ask- What is the applicable law route? What specific question can be argued before the Court? What are the commercial consequences if the current order stands?

Why Supreme Court Corporate Matters Require Careful Legal Assessment

Corporate litigation in the Supreme Court is a narrower and more exacting legal inquiry than most parties expect.

It is not enough for a company to simply be unhappy with an order. If that order results in a multi crore loss to the company that financial aspect is very real to the client. But a Supreme Court petition will ordinarily require a sustainable legal basis connected to the relevant appellate statute, constitutional power or error in the order being challenged.

Take these two examples. The Companies Act, 2013 allows an appeal from NCLAT to the Supreme Court under Section 423 in respect of a question of law arising out of the NCLAT order. This appeal is to be filed ordinarily within sixty days of receipt of the order. The statute provides power to allow a further period not exceeding sixty days where sufficient cause is shown for the delay. India Code

Section 62 of the Insolvency and Bankruptcy Code, 2016 contemplates an appeal from NCLAT to the Supreme Court also in respect of a question of law. But the appeal is to be filed within forty- five days, with a condonable delay of not more than fifteen days where sufficient cause is shown. India Code

Notice how those two examples alone drive different standards just for the timing of the Supreme Court petition. Corporate appellate litigation cannot be dealt with through one standard form template.

Questions about the forum below, the governing statute, the date of receipt of the order and the precise issue you wish to raise are all relevant.

BK Singh Advocate will often begin with the appellate provision itself before even looking at the merits.

Quick Facts

Article 136 confers discretionary powers upon the Supreme Court to grant special leave to appeal from any judgement, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in India (exceptions under the Constitution applying to armed- forces tribunals).
Sci
API Unlike a statutory appeal, a Special Leave Petition:
Section 423 Companies Act. Read allowed appeals from National Company Law Appellate Tribunal to Supreme Court "on a question of law".
India Code Section 62 IBC. Read " allows an appeal to be made to the Supreme Court from the National Company Law Appellate Tribunal on a question of law." India Code
Section 15Z SEBI Act. Read "Any person aggrieved by an order of the Securities Appellate Tribunal may appeal to the Supreme Court on a question of law."
India Code The following matters under Competition law are also heard in Supreme Court from Appellate Tribunal :
Section 53T Competition Act . IndiaCode
Verify limitation, maintainability and the exact question of law desired to be challenged before embarking on drafting.

What Does a Corporate Lawyer for Supreme Court Matters Handle?

Practice in Supreme Court litigation at the intersection of business law, tribunal litigation and appellate litigation.

The underlying dispute will usually arise under company law, insolvency law, securities law, competition law, commercial contracts, arbitration, consumer litigation against companies, banking law or shareholder disputes. Something else, of course, but connected with a corporation.

Work on such matters will typically involve:

conducting a review of the challenged judgment or tribunal order
identifying the correct route of appeal
determining whether a statutory appeal or Article 136 matter
isolating issues of law that are substantial or material
conducting a review of the record from the previous proceedings
considering limitation issues
preparing a chronology
identifying issues regarding interim-relief
coordinating Supreme Court mandates with respect to filing requirements
assisting with pleadings and preparation of briefs
assessing the commercial implications of further litigation.

A business should never approach these matters with the presumption that every unfavorable order should be fought. Sometimes the best commercial decision is to simply comply or settle or restructure.

But sometimes the order implicates a legal issue that may affect the company beyond that transaction. Corporate Law Firm and BK Singh Advocate can help you evaluate both the legal issue and the commercial impact.

Insolvency and Bankruptcy Appeals Before the Supreme Court

IBC disputes can turn on huge commercial stakes.

Who has control of a corporate debtor, whether a resolution plan is approved, whether a company is liquidated, how much creditors recover, how claims are treated and what provisions of the Insolvency and Bankruptcy Code mean are just some examples.

Section 62 refers to appeals from orders of the NCLAT as Civil Appeal to the Supreme Court on a question of law. An aggrieved person can file this appeal from the order of NCLAT on questions of law arising out of such order.

Forty five days from receipt of the NCLAT order. Supreme Court has discretion to extend this period by a further 15 days if sufficient cause is shown for not filing the appeal within the initial period. See India Code

The ability to continue business events while an appeal is pending. In contrast to Section 423 Companies Act.

Don’t assume that all NCLAT appeals are governed by the same limitation period. Doing so can be costly.

Under IBC, commercial realities don’t stop while appeals are pending. A resolution plan could be moving toward approval. Liquidation proceedings could be underway. Creditors could be making business decisions that affect value.

What Documents Are Needed for a Supreme Court Corporate Matter?

Lawyer will want more than the order.

Documents

Documents to keep:

Impugned Orders

A copy of the complete order signed/certified that is sought to be appealed.

All accompanying orders.

Previous Orders

Include pleadings, transcripts of evidence, any other documents presented before the previous court/tribunal i.e. :

petitions/originals;
appeals;
responses/reply affidavits;
rejoinders;
written arguments;
interlocutory applications;
evidence;
annexures;
transcripts;
orders.

Company Documents

The following company documents may be needed, depending on the nature of the issues in the appeal:

memorandum of association and articles of association;
board minutes;
shareholder agreements;
agreements;
loan documents;
notices;
circulars;
filings with government agencies;
sale/purchase of business records.

Agency/Tribunal Specific Documents

If you have an appeal pending with NCLAT, you will likely need NCLT pleadings.

If you have a SAT appeal, you will likely need the SEBI orders and full record of proceedings.

If you have an insolvency appeal, you will likely need the resolution- plan, RIghts memo and related documents, as well as relevant NCLT and NCLAT records.

Timeline

Create a timeline. Dates should be pulled for from your documents, not memory.

BK Singh Advocate can use this timeline to ascertain limitation, procedural history and facts leading up to the impugned order.

What Makes a Corporate Supreme Court Matter Strong?

There are no guarantees.

The fact that a lot of money is at stake does not automatically mean that there are good grounds for proceeding to the Supreme Court.

Good grounds normally turn on whether the challenge raises a material error of law in the jurisdiction being relied upon.

These could include:-

wrong interpretation of a statute;
an error of jurisdiction;
failure to take account of a relevant provision of law that governs the decision maker;
legal inconsistency;
injustice contrary to the rules of natural justice;
a question of law that the order determines;
incorrect application of established legal principles; or
any other material defect in law.

Yes, facts matter. But SC proceedings are not normally a re-hearing of the entire case.

How do we know if we have a good chance of success?” is a question we frequently get asked by commercial clients.

To meaningfully answer that question, we need to read the order and the record.

Should a Company Settle Instead of Approaching the Supreme Court?

Sometimes.

Just because you have a legally arguable case does not mean that it is commercially sensible to pursue it.

Factors that management may weigh up include:

financial exposure;
principle at stake;
impact on future business;
settlement amount;
cost of ongoing litigation;
time;
reputational risk;
relationship with counterparty.

A business that is facing a one off contractual dispute may value certainty.

Another business may require a legal precedent because they are facing the same issue on hundreds of contracts.

Neither decision is inherently right nor wrong.

BK Singh Advocate and Corporate Law Firm can help guide management through the legal landscape so that they can make an informed commercial decision.

When Should a Business Consult a Supreme Court Corporate Lawyer?

Consultation helps when:

NCLAT has delivered an adverse order;
an IBC matter has been resolved at NCLAT;
SAT has delivered a material securities-law judgment;
the enterprise is aggrieved by an appellate competition order;
NCDRC has delivered an appealable order in a corporate matter;
a commercial judgment (of a High Court) is to be challenged;
a significant arbitration-related judgment has been issued;
urgent interim relief may be required; or
limitation is already running.

Also, where management is deciding whether to settle or litigate in the Supreme Court.

Timely consultation allows counsel adequate time to study the entire record.

Rarely can the best appellate argument be crafted from the penultimate judgment alone.

How Corporate Law Firm Can Help

Corporate Law Firm & BK Singh Advocate help companies with Corporate, Commercial and Tribunal litigation which may extend up to SC appeals.

Services include

helping you with the order under challenge
identifying appealable issues
help with limitation
analysing NCLT/NCLAT proceedings
Identifying IBC issues
Picking up on Regulatory issues
Spotting commercial issues of law
Help with compilation of chronology & bundle
Handling of litigation coordination
Assistance to management in understanding legal ramifications of moving forward.

Visit Corporate Law Firm for comprehensive corporate-laws practice profile.

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Frequently Asked Questions

1. What is handled by a Corporate Lawyer Supreme Court of India?

A Corporate Lawyer handles corporate/commercial appellate matters brought to the Supreme Court of India where such appeals are related to High Court judgments/order/commercial matters, NCLAT orders, insolvency appeals, securities law matters, competition law disputes, or any other business related matters. Maintainability, limitation and the law point would likely be checked first by BK Singh Advocate.

2. Can all NCLAT orders be appealed to Supreme Court?

Any person aggrieved by an order made by the NCLAT may appeal to the Supreme Court against any such order on a question of law arising out of that order under Section 423 of the Companies Act.

(The exact maintainability & limitation would have to be checked from the order itself & applicable statute.) India Code

3. What is the limitation for filing an appeal to Supreme Court under IBC?

Subject to the provisions of this Schedule, an appeal shall lie to the Supreme Court within a period of forty-five days from the date of receipt of the order of the National Company Law Appellate Tribunal….The Supreme Court may allow an appeal after the expiry of the period of forty-five days mentioned… where the appellant satisfies the Supreme Court that he had sufficient cause for not filing the appeal within such period of forty-five days and no appeal has been made to any other court. India Code

4. Is SLP the same as a normal appeal?

No. An SLP is a special leave petition for our purpose which challenges High Court judgments/orders under Article 136 of the Constitution which confers wide discretionary powers on the Supreme Court to grant special leave to appeal against any judgement/order passed by any court/tribunal. A statutory appeal is available only when the legislation explicitly provides an appellate mechanism against judgments/orders subject to conditions/permitted only in certain cases. BK Singh Advocate or Corporate Law Firm will determine the available route first before considering filing.

5. Can the SC redo all the facts in a corporate SLP?

DO NOT assume that the Supreme Court will look at the facts afresh on a corporate SLP. Under Article 136, the Supreme Court has granted itself an extraordinary power and is exercised sparingly. Depending on the nature of the legal error, the proceedings below and what issues are actually raised in the SLP, these can be important factors. Sci API

6. Can SEBI/SAT orders be filed in Supreme Court?

Yes. Section 15Z Appeal to Supreme Court.

An appeal shall lie as of right to the Supreme Court from an order or decision of the Securities Appellate Tribunal….on a question of law decided by such tribunal. (Subject to the usual limitations.) India Code

7. Can Competition law orders be filed in Supreme Court?

Section 53T. Appeal to Supreme Court.

Any person aggrieved by an order made by the Appellate Tribunal under this Act may appeal to the Supreme Court against such order on a question of law.

IndiaCode

8. Can orders passed by NCDRC be challenged in Supreme Court?

Appeal to Supreme Court.

An appeal shall lie as of right to the Supreme Court from any order made by the National Consumer Disputes Redressal Commission…subject to the provisions of this section.

Every appellant filing an appeal under this section shall furnish a deposit of fifty per cent of the amount ordered to be paid by him under the order appealed against… Section 67. IndiaCode

9. How early should a company seek help for a Supreme Court case?

The earlier a business/Company seeks a review of the order the better. Waiting too long may result in statutory limitation issues, as well as loss of preparation time. Counsel will need time to research and decide on the appropriate appellate forum, necessary documents and whether any interim relief should be sought.

10. What documents should I bring for Supreme Court corporate consultation?

You should bring the order you want challenged, previous pleadings filed at any court/tribunal, appellate orders if any, contracts, company documents, tribunal records, correspondence and any other document that you think is important for your case. Additionally, prepare a date-wise chronology table. BK Singh & the Corporate Law Firm can most efficiently assess your dispute and route after reviewing these documents against the applicable statutes or Constitutional provisions.

Final Thoughts

Not every corporate matter where a company has lost below automatically proceeds up to the Supreme Court of India.

There first must be a route.

It can be a Companies Act appeal under Section 423.

There can be an insolvency appeal under Section 62 of the IBC.

A securities litigation petition can be filed under Section 15Z of the SEBI Act.

There can be a competition appeal under Section 53T.

Every other commercial matter raises the route of special leave under Article 136.

Each route comes with its own pre-requisites.

Second is the nature of the legal issue.

While management may be concerned about dollars at stake, Supreme Court litigation is structured around preservation of sustainable legal issues as opposed to general commercial discontent.

Third is timing.

Statutes of limitation under corporate laws can expire quickly. Delaying until internal approvals are received before even consulting counsel can be detrimental.

Fourth is documentation.

The full record from the lower-court/tribunal becomes relevant because appeals are based on what was pleaded, argued and decided below.

Lastly, management should step back and review commercial impact.

Some lost causes are worth fighting because they raise important legal issues or impact how the business will operate in the future. But some lost causes can be picked up commercially.

BK Singh Attorney at Law and Lawyers has experience in helping companies, directors, promoters, shareholders and regulated entities understand the right legal route, underlying corporate issue, limitation issues, documentation and commercial impact when considering engaging a Supreme Court Advocate on Corporate Law matters.

Author Bio

BK Singh Advocate is part of Corporate Law Firm. He counsels businesses on corporate, commercial, tribunal and appellate litigation. Whether it is company law matters and proceedings at NCLT & NCLAT or insolvency, contracts, regulatory disputes and corporate issues where the Supreme Court provides a remedy he guides his clients through the analysis of the impugned order, available statutory appeals, questions of law, limitation and commercial record. Advice is tailored depending on the facts, the applicable statute, procedural posture and issues of law in the specific matter.

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Corporate Lawyer Supreme Court of India