INDIA Trends and Developments Contributed by: Vaibhav Choukse, Ela Bali, Nripi Jolly and Faiz Siddiqui, JSA
Other developments relating to merger control Expanded scope for mapping overlaps: inclusion of limited partners in specific cases In the case of a private equity firm, the CCI typi - cally assesses overlaps between the affiliates of the firm (and the group to which it belongs) and the target. However, in the case of Citrine Inclusion Limited (“Citrine”)/Utkarsh CoreInvest Limited (UCL), the CCI extended its assess - ment to include overlaps between the affiliates of the firm’s limited partners (LPs) and the target. Citrine is owned and controlled by a fund ulti - mately managed by LeapFrog Group GP Limited (”LeapFrog”). One of LeapFrog’s LPs had the right to appoint a person to serve as a member of the manage - ment board of LeapFrog Investments Platform (LIP), including its group companies and affili - ates. The parties argued that the overlap assess - ment between the LP and the target was unwar - ranted as the LP, inter alia: • has no rights or influence over the investment recommendations of the investment manager to the general partners or over investment decisions of the general partners; • is not entitled to receive CSI regarding the transaction or investee companies; and • does not have any form of influence or control over LeapFrog’s entry and exit decisions in relation to any investee company. Given the scope of the management board’s mandate, the CCI noted that it covers signifi - cant aspects of the LIP’s operations, including the selection and appointment of leadership, as well as decisions regarding the composition of the investment committee. Accordingly, the LP’s participation in the management board grants it the ability to influence the LIP’s decisions, indi -
cating a role that exceeds that of a typical limited partner. Accordingly, the LP is to be considered for over - lap mapping, marking the CCI’s first assessment of overlaps between a LP’s affiliates and the tar - get. Insolvency and Bankruptcy Code Since the introduction Insolvency and Bankrupt - cy Code 2016 (IBC), the CCI has reviewed about 40 combinations, including two during the rel - evant period – namely, the acquisition of 100% shareholding of KSK Mahanadi Power Company Limited by JSW Energy Limited through JSW Thermal Energy One Limited, and a combina - tion involving Central Bank of India and Future Enterprises Limited. These combinations were swiftly approved by the CCI within 47 days. Recently, the Supreme Court in its landmark judgment in the case of Independent Sugar Cor- poration Ltd v Girish Sriram Juneja , inter alia held that CCI approval must be obtained prior to the approval of resolution plan by the Committee of Creditors (CoC) under the IBC. This decision came in response to an appeal filed by Independent Sugar Corporation Ltd (INSCO) against the order of National Company Law Appellate Tribunal (NCLAT) in relation to the resolution process of Hindustan National Glass and Industries Ltd (HNG). The resolution process was initiated against HNG in 2021 and two reso - lution plans were submitted to the CoC – one by INSCO, which had prior CCI approval, prior to the CoC’s decision, and the other by AGI Green - pac Ltd (AGI), which received CCI approval after the CoC approved AGI’s plan. INSCO challenged the CoC’s approval of AGI’s resolution plan, but both the National Company
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