Form of Notice - Under Insolvency and Bankruptcy Act 2016

Form 4

(See clause (b) of sub-rule (1) of rule 5)

Form of Notice with which Invoice demanding payment is to be Attached

(Under Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016

                                                                                                                                                 Date

To,

[Name and address of registered office of the corporate debtor]

From,

[ Name and address of the operational  creditor]

Subject: Notice attached to invoice demanding payment

Madam/Sir,

[Name of operational creditor], hereby provides notice for repayment of the unpaid amount of INR 

[Insert amount] that is in default as reflected in the invoice attached to this notice.

   In the event you do not repay the debt due to us within ten days of receipt of this invoice, we may file an application before the Adjudicating Authority for initiating a corporate insolvency resolution process under section 9 of the code.

Yours Sincerely,

Signature of person authorized to act on behalf of the operational creditor

Name in Block Letters

Position with or in relation to the operation creditor

Address of person signing

_________________________________________________________________________________

Application by Operational Creditor to Initiate Corporate Insolvency Resolution Process under IBC 2016

Form -5

(See sub- rule (1) of rule 6)

Application by Operational Creditor to Initiate Corporate Insolvency Resolution Process under the Insolvency and Bankruptcy Code, 2016

(Under rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority ) Rules, 2016

                                                                                                                                                                  Date

To,

The National Company Law Tirbunal

[Address]

From,

[Name and address for correspondence of the operational creditor]

In the matter of [ name of the corporate debtor]

Subject : Application to initiate corporate resolution process in respect of [ name of the corporate debtor] under the Insolvency and Bankruptcy Code, 2016.

Madam/Sir,

[Name of the operational creditor], hereby submits this application to initiate a corporate insolvency resolution process in the case of  [ name of corporate debtor].  The details for the purpose of this application are set out below:

Part- I

Particulars of Applicant

1.       Name of operational creditor

2.       Identification number of operational creditor (if any)

3.       Address for correspondence of the operational creditor

Part – II

Particulars of Corporate Debtor

1.      Name of the corporate debtor

2.      Identification number of Corporate Debtor

3.      Date of Incorporation of corporate Debtor

4.      Nominal share capital and the paid – up Share capital of the corporate debtor

And /or details of guarantee clause as per Memorandum of association (as Applicable)

5.      Address of the registered office of the Corporate Debtor

6.      Name, address and authority of person submitting application

On behalf of Operational creditor (Enclose authorization)

7.      Name and address of person resident in India authorized to accept the service

Of process on its behalf ( Enclose authorization)

Part- III

Particulars of the Proposed Interim Resolution Professional [if Proposed]

1.      Name, address, email address and the Registration number of the proposed Insolvency professional

Part – IV

Particulars of Operational Debt

1.      Total Amount of debt , details of transactions on account of which

Debt fell due, and the date from which such fell due

2.      Amount claimed to be default and the date on which the default

Occurred ( Attach the workings for computation of amount

And dates of default in tabular form)

Part – V

Particulars of Operational Debt [Documents, Records and Evidence of Default]

1.      Particulars of security held, if any, the date of its creation , its estimated value as per the creditor.

Attach a copy of a certificate of registration of charge issued by the registrar of companies (If the corporate debtor is a company)

2.      Details of reservation / Retention of title arrangements (if any) in respect of goods to which the operational debt refers

3.      Particulars of an order of a court, tribunal or arbitral panel adjudicating on the default, if any (attach a copy of the order)

4.      Record of default with the information utility, if any (attach a copy of such record)

5.      Details of succession certificate, or Probate of a will , or letter of administration or court decree ( as may be applicable), under the Indian succession act, 1925 (10 of 1925) (attach a copy)

6.      Provision of law , contract or other document under which operational debt has become due.

7.      A statement of bank account where deposit are made or credits received normally by the operational creditor in respect of the debt of the corporate debtor ( attach copy)

8.      List of other documents attached to this application in order to prove the existence of operational debt and the amount in default.

I,[Name of the operational creditor/person authorized to act on behalf of the operational creditor] hereby certify that, to the best of my knowledge , [ name of proposed insolvency professional ], is fully qualified and permitted to act as an insolvency professional in accordance with the code and the rules and regulations made thereunder. [WHERE APPLICABLE]

[Name of the operational creditor] has paid the requisite fee for this application through [ state means o payment] on [date]

Yours Sincerely,

Signature of person authorized to act on behalf of the operational creditor

Name in block letters

Position with or in relation to the operational creditor

Address of person signing

Instructions

Please attached the following to this application:

Annex I       Copy of the invoice / Demand notice as in Form 3 of the Insolvency and  

                     Bankruptcy (application to Adjudicating Authority) Rules, 2016 served on the

                     corporate debtor.

Annex II      Copies of all documents referred to in this application

Annex  III    Copy of the relevant accounts from the bank/financial institutions maintaining

                     accounts of the operational creditor confirming that there is no payment of the

                     relevant unpaid operational debt by the operational debtor, if available.

Annex  IV     Affidavit in support of the application in accordance with the Insolvency and 

                      Bankruptcy ( Application to Adjudicating Authority) Rules2016.

Annex  V     Written communication by the proposed resolution professional as set out in

                     Form 2 of the Insolvency and Bankruptcy ( Application to Adjudicating Authority

                     ) Rules 2016. [ WHERE APPLICABLE].

Annex VI     Proof that the specified application fee has been paid.

Note:  Where workmen Employees are operational creditors, the application may be made either in an individual capacity or in a joint capacity by one of them who is duly authorized for the purpose.

Exploring Explosive act 1984

During a Diwali festival time, we keep hearing these word frequently explosives, fireworks

The tendency to see the sky at Diwali nights is unstoppable to see those dazing lights decorated in homes

extravaganza display fireworks illuminating be a feast for your eyes.

This short article highlights the importance of Explosive act 1884 and understands to use, transport, sale, possession of explosive

For better understanding.

List of classification of explosives depends on the Pyro technique effect:

Types based on sound decibel level – Fireworks that emit sound level exceeding 145 db at 4 meters distance from the point of bursting

Colour emitting firework - firework that emits colour or light having sound level not exceeding at 4meter distance from the point of bursting.

The above type of class 7- usage, the risk is limited for civilian use

Restriction on employment of children – Under chapter III 7 – No person below 18 of age be employed to employ at Manufacturing or storage of explosive sites.

3 - Only professionally qualified person with degree or diploma or engineering or science graduate having 5 years of experience in manufacturing explosives be employed for the supervision of explosives at manufacturing or storage site.

84 – Temporary shops for possession and sale of fireworks during Diwali - The District Magistrate to issue a license subject to the following conditions:-

The Fireworks should be kept under the shed of non-flammable material

1.     Shops for possession of fireworks shall be at a distance for at 3 meters from each other

2.     No oil-burning lamps, gas shall be used or within the safety distance of the sheds

3.     Display of firework shall not be allowed within 50 meters of any shed.

Procedure on expiry, suspension or revocation or cancellation of license:-

The License authority shall give notice to the licensee to provide the description, quantity of explosives in his possession at their disposal.

In case of a license of revoked or cancelled by the license authority fee of the unexpired portion to be reimbursed

The procedure of Appeal:-

An appeal against the order of authority is passed by the

  

Chief Controller - To the Central Government

Controller - To the Chief Controller

District Magistrate - To the immediate superior to such authority

Every appeal shall be presented within 60 days from the date of the order.

Appeal fee to be refunded to the appellant if the appeal is upheld by the appellate authority.

  

Registration of Hostels and Home of Children is Mandatory in Tamil Nadu

National Physical Laboratory - National verification agency for certifying instruments and equipments for monitoring emissions

To protect, monitor and to improve the quality of the environment and preventing, controlling and alleviate environmental pollution is the need for the hour to set up a separate monitoring agency for verifying, certifying instruments and types of equipment for monitoring air quality. Hence in the exercise of the powers conferred by section 3 of the Environment (Protection) Act, 1986 (29 of 1986), the Central Government hereby designates the Council of Scientific and Industrial Research - National Physical Laboratory (CSIR-NPL) as national verification agency for certifying instruments and equipment for monitoring emissions and ambient air.

This agency to develop the necessary infrastructure, management system, testing and certification facilities conforming to international standards like ISO 17605 and ISO 17025 for both manual samplers and Continuous Ambient Air Quality Monitoring Stations (CAQMS) in addition to Continuous Emission Monitoring Systems (CEMS) beside this agency shall also be responsible for the preparation of all documentation and protocol for measurements, in consultation with the Central Pollution Control Board.

A, B, C Summary Report in the Criminal Procedure Code 1973

This short version of law notes to explain Section 173 of the code of Criminal procedure 1973 and various  Summary Report filed in the Criminal case.

A, B, C Summary Report.

When the Investigation officer filed any of the above reports. The Court is to consider those report to

take an appropriate decision in accordance with the law.

A, B, C summaries are categories of a case that is not a detective.

or has no evidence to prosecute, is based on a false complaint and mistaken facts respectively.

1.    A Summary Case

a.Where the magistrate classifies the case as true but undetected


b.When then is no clue whatsoever about the culprits or property or when the accused is known but

there is no evidence to justify his being sent up to the Magistrate for trial

Case Law -  Amratbhai Chambhai  Thakor  Vs State of Gujarat – Gujarat High Court 2017

2.    B Summary case

a.    Where the Magistrate classifies the case as Maliciously false

b.    When then is no evidence or prima facie case against the accused

c.    Applicable when false or frivolous cases are filled.

d.    B Summary Report is filed by the Police in such a matter

e.    Usually, a final report

f.    Will lead to the acquittal of the accused, upon acceptance by the court

g.    The Police have to become the complainant and register a case against the original

h.    Complainant, stating that he had complained to the police with malicious intent.

Case Law – Dr. Gurukanth Rao NV  Vs Dr Ranjeetha Shenoy – Karnataka High Court 2019

                     Kamalapati Trivedi Vs State of West Bengal – Supreme Court 1980

3.    C  Summary Case

a.    When the case is neither true or false

b.    C Summary report is issued by the Police in Such matter.

c.    When the Criminal case was filed due to the mistake of facts or the Offence complained about is of a civil nature.

Case Law – Maharashtra State Electricity Distribution Company Ltd Vs State of Maharashtra

                   Bombay High Court 2011
                 
                    Bhagwat Singh Vs Commissioner of Police and Another SC 1985
                   


Credit- https://lawgic.info

Ombudsman for Digitial Payment Transactions

Go Digital we often hear this word although list out all its benefits not possible to explain due to my confined space availability in the blog.  Let me explain to whom should we complain if when an electronic funds transfer failed to complete the transaction initiated by us normally we lodge a complaint to the bank, but the payment system not owned or controlled by the same bank, if its Amazon pay, Mobikwik Wallet.

In such scenario understanding the process flow of payment processing of the banks will help you to redress the digital payments issue without any hassle.

RBI has introduced the scheme under section 18 Payment and Settlement Systems Act, 2007,  No cost mechanism to address the digital transaction complaint by the customers of the System Participants with effect from January 31, 2019.

Who is this System Participants or Operators?

A Person or any other person participating in a payment system and includes the system provider;

who operates an authorised payment system.

Explanation.- For the purposes of this clause, "payment system" includes the systems enabling credit card operations, debit card operations, smart card operations, money transfer operations or similar operations;

To know  the list of Payment System Operators’ authorised by the Reserve Bank of India to set up and operate in India under the Payment and Settlement Systems Act, 2007 is as under

https://rbi.org.in/scripts/publicationsview.aspx?id=12043

Appointment of Ombudsman.

Power of appointing ombudsman lies with the  RBI

Number of Officials appointed till date and office address.

21

                   

Please link the below to know the Address.

https://m.rbi.org.in/Scripts/FAQView.aspx?Id=127

Grounds of complaints to lodge with the ombudsman.

Prepaid Payment Instruments: Non-adherence to the instructions of Reserve Bank by System Participants about Prepaid Payment Instruments1 on any of the following:

a.    Failure in crediting merchant's account within a reasonable time;

b.    Failure to load funds within a reasonable time in wallets/cards;

c.    Unauthorized electronic fund transfer;

d.    Non-Transfer / Refusal to transfer/ failure to transfer within a reasonable time, the balance in the Prepaid Payment Instruments to the holder’s ‘own’ bank account or back to source at the time of closure, expiry of validity period etc., of the Prepaid Payment Instrument;

e.    Failure to refund within reasonable time/refusal to refund in case of unsuccessful / returned / rejected / cancelled / transactions;

f.    Non-credit / delay in crediting the account of the Prepaid Payment Instrument holder as per the terms and conditions of the promotions offer(s) from time to time if any;

g.    Non-adherence to any other instruction of the Reserve Bank on Prepaid Payment 

Instruments.

Mobile / Electronic Fund Transfers: Non-adherence to the instructions of the Reserve Bank on Mobile / Electronic fund transfers by System Participants on any of the following:

a.    Failure to effect online payment/fund transfer within a reasonable time;

b.    Unauthorized electronic fund transfer;

c.    Failure to act upon stop-payment instructions within the time frame and under the circumstances notified to the customers within a prescribed timeline;

d.    Failure to reverse the amount debited from customer account in cases of failed payment transactions within a prescribed timeline;

e.    Non-adherence to any other instruction of the Reserve Bank on Mobile/Electronic fund transfers.

Non-adherence to instructions of Reserve Bank / respective System Provider to System Participants, on payment transactions through Unified Payments Interface (UPI) / Bharat Bill Payment System (BBPS) / Bharat QR Code / UPI QR Code on the following grounds:

a.    Failure in crediting funds to the beneficiaries’ account;

b.    Failure to return within a reasonable time the payment to the originating member in case of failure to credit the funds to the beneficiary’s account;

c.    Failure to / delay in refund of money back to the account in case of transaction failure or declined transactions (i.e. failed transactions);

d.    Non-adherence to any other instruction of the Reserve Bank on payment transactions / through Unified Payments Interface (UPI) / Bharat Bill Payment System (BBPS)/ Bharat QR Code / UPI QR Code.

Non-reversal / failure to reverse within a reasonable time, funds wrongly transferred to the beneficiary account due to lapse at the end of System Participant.

Any other matter relating to the violation of the directives including on fees/charges, if any, issued by the Reserve Bank in relation to digital transactions.

NOTE: In respect of digital transactions done on third-party platforms, it will be the responsibility of the Payment Service Provider to resolve customer disputes arising out of such transactions.

Procedure for complaint.

The individual can file a complaint with the Ombudsman by writing on a plain paper and sending it to the concerned office of the Ombudsman by post/fax/hand delivery. One can also file it by email to the Ombudsman for Digital Transactions is available on RBI's website.

Territorial Jurisdiction

An individual may lodge a complaint with the Office of the Ombudsman for Digital Transactions within whose jurisdiction the branch or office of the System Participant complained against, is located. For complaint arising out of services with centralized operations, complaints can be filed with the office of the Ombudsman for Digital Transactions within whose territorial jurisdiction the billing / declared address of the customer is located.

Advocate cant appears on behalf of the complainant.

Fee

No. There is no charge or any fee for filing / resolving customers’ complaints.

The complaint will not be considered under the following circumstances:

a.    If the System Participant against whom the complaint is registered is not covered under the Scheme.

b.    If one has not approached the System Participant concerned in the first instance for redressal of the grievance.

c.    If the subject matter of the complaint is not pertaining to the grounds of complaint specified under Clause 8 of the Scheme.

d.    If one has not made the complaint within one year from the date of receipt of the reply from the System Participant; or if no reply is received, and the complaint to the Ombudsman is made after the lapse of more than one year and one month from the date of complaint to the System Participant. In exceptional circumstances as decided by the Ombudsman, a complaint made after the period mentioned above may be accepted by the Ombudsman, provided the complaint is made before the expiry of the period of limitation prescribed under the Indian Limitation Act, 1963 for such claims.

e.    If the subject matter of the complaint is pending for disposal / has already been dealt with at any other forum like the court of law, consumer court etc.

f.    If the complaint is for the same subject matter that was settled through the office of the Ombudsman in any previous proceedings.

g.    If the complaint is frivolous or vexatious.                                     

h.    The complaint falls under the disputes covered under Section 24 of the Payment and Settlement Systems Act, 2007.

i.    The complaint pertains to the dispute arising from a transaction between customers.

OFFENCES AND PENALTIES

 26. (1) Where a person contravenes the provisions of Penalties section 4 or fails to comply with the terms and conditions subject to which the authorisation has been issued under section 7, he shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to ten years or with fine which may extend to one crore rupees or with both and with a further fine which may extend to one lakh rupees for every day, after the first during which the contravention or failure to comply continues.

(2) Whoever in any application for authorisation or in any return or other document or on any information required to be furnished by or under, or for the purpose of, any provision of this Act wilfully makes a statement which is false in any material particular, knowing it to be false or wilfully omits to make a material statement, shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine which shall not be less than ten lakh rupees and which may extend to fifty Lakh rupees.

(3) If any person fails to produce any statement, information, returns or other documents, or to furnish any statement, information, returns or other documents, which under section 12 or under section 13, it is his duty to furnish or to answer any question relating to the operation of a payment system which is required by an officer making an inspection under section 14, he shall be punishable with fine which may extend to ten Lakh rupees in respect of each offence and if he persists in such refusal, to a further fine which may extend to twenty-five thousand rupees for every day for which the offence continues.

(4) If any a person discloses any information, the disclosure of which is prohibited under section 22, he shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to five lakh rupees or an amount equal to twice the amount of the damages incurred by the act of such disclosure, whichever is higher or with both.

(5) Where a direction issued under this Act is not complied with within the period stipulated by the Reserve Bank or where no such the period is stipulated, within a reasonable time or where the penalty imposed by the Reserve Bank under section 30 is not paid within a period of thirty days from the date of the order, the system provider or the system participant which has failed to comply with the direction or to pay the penalty shall be punishable with imprisonment for a term which shall not be less than one month but which Offences by companies Cognizance of offences may extend to ten years, or with fine which may extend to one crore rupees or with both and where the failure to comply with the direction continues, with a further fine which may extend to one lakh rupees for every day, after the first during which the contravention continues.

(6) If any provision of this Act is contravened, or if any default is made in complying with any other requirement of this Act, or of any regulation, order or direction made or given or condition imposed thereunder and in respect of which no penalty has been specified, then, the person guilty of such contravention or default, as the case may be, shall be punishable with fine which may extend to ten lakh rupees and where a contravention or default is a continuing one, with a further fine which may extend to twenty-five thousand rupees for every day, after the first during which the contravention or default continues.