INDIA Law and Practice Contributed by: Shardul Shroff, Misha, Kritika Poddar and Aishwarya Satija, Shardul Amarchand Mangaldas & Co
6.6 Foreign Creditors The Code does not distinguish between domestic and foreign creditors. 7. Duties and Liability of Directors and Officers 7.1 Duties of Directors Duties and Liabilities Under the CA 2013 The general duties of directors under the CA 2013 include the following: • to act in accordance with the constitutional docu - ments of the company; • to act in good faith to promote the objectives of the company; • to exercise their duties with reasonable care; and • to avoid situations of conflict with the interests of the company. Contravention of the duties prescribed under the CA 2013 can lead to the imposition of a fine. In cases of undue gain, the director concerned will be liable to pay an amount equal to the gain. When a winding-up petition has been filed before the NCLT, the directors of the company must co-operate fully with the company liquidator in the discharge of their functions and duties. Moreover, during winding up: • if a director knowingly carries on business with an intent to defraud creditors, then such direc - tor (without any limitation of liability) can be held personally liable for all or any of the debts or other liabilities of the company; or • if a director who has applied, retained or become liable or accountable for any money or property of the company has been guilty of any misfea - sance or breach of trust in relation to the company, then such director can be made liable to repay or restore such money or property. A director may also be required to contribute such sums to the assets of the company for any misappli - cation, retainer, misfeasance or breach of trust.
ings. This direction was issued by the NCLAT while staying an order of the NCLT in so far as it declared the Dutch proceedings against the CD a nullity as per Indian law. The protocol provided for identification of India as Jet Airways’ centre of main interests, informa - tion sharing and communication, right to appear and attend proceedings, etc. 6.3 Applicable Law The Code does not lay down any criteria used to determine which domestic law applies to restructur - ing and insolvency-related matters. The Code does not provide for recognition of restruc - turing or insolvency proceedings in another country. Enforcement of Foreign Judgments The CPC provides for the enforcement of foreign judg - ments passed by superior courts of notified recipro - cating countries, which can be refused by the court where: • the judgment was passed by a foreign court of incompetent jurisdiction; • the judgment disregarded the merits of the case; • an incorrect view of international law was adopted or the applicable Indian law was not recognised; • the principles of natural justice were not followed; • the judgment was obtained by fraud; or • the judgment sustains a claim founded on a breach of any Indian law. Process of Enforcement A certified copy of the decree along with a statement of the foreign court stating the extent to which the decree has been satisfied is filed before the Indian district court. The foreign judgment of the reciprocat - ing country can be directly enforced as a domestic decree by filing an execution petition under the CPC. For non-reciprocating countries, an ordinary civil suit may be filed with a copy of the foreign decree as proof of debt. 6.5 Co-Ordination in Cross-Border Cases See 6.2 Jurisdiction . 6.4 Recognition and Enforceability Recognition of Foreign Proceedings
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