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Vikash Kumar Jha

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Vikash has over 13 years of experience and focuses on commercial litigation before various forums including Supreme Court, High Courts, NCLAT, NCLT, PMLA, Trial Court etc. He also has extensive experience in arbitration and court proceedings arising out thereof. He has done practice in trial courts and has a fair amount of experience in original side practice. He is a qualified AOR, Supreme Court. He can be reached at vikashkumar.jha@cyrilshroff.com

Introduction

One of the principle aims of the Insolvency and Bankruptcy Code, 2016 (“Code”) is resolution of insolvency of corporate persons, firms, and individuals in an effective, efficient and time bound manner. Chapter III of Part III of the Code deals with insolvency resolution and bankruptcy for individuals and partnership firms, including personal guarantors. Section 5(22) of the Code defines the term ‘personal guarantor’ as an individual who is the surety in a contract of guarantee to a corporate debtor. Rule 3 (1) (f) of Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtors) Rules, 2019 (“Rules”) also defines a guarantor as a debtor who is a personal guarantor to a corporate debtor and in respect of whom guarantee has been invoked by the creditor and remains unpaid in full or part.  Continue Reading Personally Guaranteeing the Creditors’ Gain

Civil Procedure

INTRODUCTION:

It is trite law that a personal action or claim extinguishes with the death of a person. This principle has been appropriately captured in the common law maxim – “action personalismoritur cum persona”, which is the Latin equivalent for “a personal right of action dies with the person”. The maxim, however, has limited application on cases, such as (i) a defamatory action, (ii) criminal proceedings in lieu of personal injury not amounting to murder, (iii) where the grant of any relief in a suit would be nugatory owing to the death of a party, etc. However, where a judgement debtor dies before fully satisfying a money payment decree, the decree holder can apply to the court that had passed the decree to get the decree executed against the legal representatives and/ or legal heirs of the deceased judgement debtor. Here, the above mentioned common law maxim has no application. In this paper, we will discuss the extent of liability of a legal heir in such a situation where the judgement debtor has expired before the execution of a money decree.Continue Reading Liability of Legal Heirs Vis-À-Vis Code of Civil Procedure