INDIA Law and Practice Contributed by: Vijayendra Pratap Singh, Asif Ahmed, Tanmay Sharma and Bhanu Jindal, AZB & Partners
Courts in India have also utilised the “group of companies” doctrine for the joinder of parties to an arbitration. This has recently been authori - tatively ruled on by a five-judge Constitution Bench of the Supreme Court of India in Cox & Kings Ltd v SAP India (P) Ltd 2023 INSC 1051. The Supreme Court has recognised the “group of companies” doctrine and has further defined the contours by guard-railing it from misuse. In doing so, the Supreme Court has held that consent may be implied in some situations to include a non-signatory to an agreement as par - ty to an arbitration if the circumstances show that the mutual intention of all the parties was to bind both the signatory and the non-signatory affiliate. Fraud Under the Companies Act While the Companies Act provides punishment for fraud under Section 447, the applicability of the Companies Act to an overseas entity is lim - ited. A foreign company, for the purposes of the Companies Act, is defined under Section 2(42) to mean any company or body corporate incor - porated outside India which: • has a place of business in India, whether by itself or through an agent, physically or through an electronic mode; and • conducts any business activity in India in any other manner. In this context, Section 379 of the Companies Act provides that, where not less than 50% of the paid-up share capital of a foreign company is held by one or more citizens of India, or by one or more companies or bodies corporate incor - porated in India, whether singly or in aggregate, such company must comply with certain provi - sions as may be prescribed with regard to the business carried on by it in India as though it were a company incorporated in India.
Section 380 of the Companies Act provides for service of any process, notice or other document required to be served on a foreign company. Section 228 of the Companies Act provides for inspection, inquiry or investigation in relation to foreign companies. Criminal Proceedings An Indian court would have jurisdiction over criminal acts committed with a fraudulent intent under the BNS when the act has been commit - ted by: • any citizen of India residing beyond India; • any person on a ship or aircraft registered in India, wherever it may be; and • any person who commits an offence involving a computer source in India. Where an Indian court can exercise jurisdiction over an overseas entity, the BNSS provides for an elaborate process for the valid service of summons or warrants, etc, in any contracting “state” , through an authority for transmission. In this regard, India has entered into mutual legal assistance treaties/arrangements (MLATs) with various countries that provide for recipro - cal arrangements for the serving of such judi - cial documents. Such requests are processed by the Ministry of Home Affairs, which transfers such documents to the relevant Indian missions/ embassies. The difference between the two categories of countries is that the country where an MLAT is involved has an obligation to consider serving the documents; whereas non-MLAT countries do not have any obligation to consider such a request. Similarly, India has entered into various bilateral treaties that allow knowledge-sharing, mutual assistance, and extradition for enabling
214 CHAMBERS.COM
Powered by FlippingBook