NCLT Takes A Detour From IBC For A ‘Workable Solution’ In SBM Paper Mills Case

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Our partner Murtaza Somjee shared his views with Bloomberg, on the implications of the landmark ruling of the Mumbai bench of the NCLT in SBM Paper Mills. In this matter the NCLT, allowed the promoters of the company which was the subject of resolution proceedings to withdraw from the resolution process, effectively rescinding the approval that the committee of creditors had provided for the resolution plan submitted by a third party applicant, but at the same time facilitating the most optimal resolution for the creditors of the company. The jury is still out on whether the ruling can be used as a “one size fit all” solution in other insolvency resolution processes

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IIFL and Morgan Stanley Private Equity Fund invests in Kogta Financial (Retail lending NBFC)

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Retail focused NBFC entity, Kogta Financial (India) Limited, raised a fresh round of funding from the existing investor, IIFL Seed Ventures and the new investor, Morgan Stanley Private Equity Asia-managed fund. The total investment size was INR 154 crores (approximately USD 22 million) wherein IIFL invested INR 40 crores and Morgan Stanley invested INR 114 crores.

Role – Jerome Merchant + Partners advised IIFL Seed Ventures
Members of JM+P team: The team was led by partner Sameer Sibal along with associates Anna Liz Thomas and Rishabh Amber Gupta.

Other Legal advisor 1: Trilegal advised the Company (Kogta Financial (India) Limited)
Members of Trilegal team: The team was led by partner Kunal Chandra along with senior associate Harshil Dalal and associates Akshat Shrivastava and Akriti Gupta.

Other Legal advisor 2: Shardul Amarchand Mangaldas (SAM) advised Morgan Stanley
Members of SAM team: The team was led by partner Nivedita Tiwari along with associate Rajashree Ravi.

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M&A in India-London

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On November 15, 2018, Jerome Merchant + Partners (JMP), in association with the City of London Corporation (COLC), the Confederation of Indian Industry (CII) and PWC convened a roundtable event on “M&As in India”. The event was by invitation only to a select audience from corporates based in London.

The roundtable kicked off with JMP Partner Sameer Sibal, welcoming the audience to the iconic Guildhall and providing them with a background to the record level of investment activity in India. India has seen an increase of deals in 2018 – both in value as well as the number of deals – and these transactions have already surpassed the number for the entire year of 2017.

The theme of the session was to discuss the legal, policy, tax and regulatory amendments which have facilitated the increase in investment activity in India, including through the introduction of the Insolvency Code in India or by way liberalization of certain FDI sectors.

Manish Singh, the Minister (Economic Affairs) of the High Commission of India to the United Kingdom, spoke on the policy initiatives taken by the Government of India to facilitate and enhance trade and investment between the UK and India. Manish Singh referred to the push provided by the Indian government to digitalization and the impact it could have on the growth in the market in India. He highlighted the introduction of India’s new insolvency law and an integrated goods and services tax regime as game changers which will bear fruit in the mid to long term. Manish Singh also said that he would be open to taking back the outcomes of the roundtable to the appropriate policy makers.

The historic bilateral investment ties between the India and UK (popularly known as the India-UK corridor) formed the theme of the Head of the CII (London) Lakshmi Kaul’s address to the audience. Ms. Kaul informed the audience that the UK remains India’s largest G-20 FDI investor and trade ties between the two countries ensures employment for over a million people in India
and the UK. The CII’s London chapter has been instrumental in handholding Indian investors into the UK and promoting government and industry interactions across all regions of the United Kingdom.

The roundtable was structured to ensure maximum audience participation after each of the topics was introduced by a lead speaker. The other key outcomes or takeaways from the discussions are set out in this document.

Regulatory Changes and Challenges – Vishnu Jerome, Partner, JMP:

  • Further liberalization in key growth sectors such as retail trading, financial services, defence and pharma have ensured reasonable amount of FDI in such sectors.
  • Efforts to diversify the capital pool from, and instruments by which investment into India can be made were welcomed. However, challenges for Indian companies to access such capital pools and for investors to be reasonably certain of returns on such instruments remain on account of Indian exchange control regulations, which place restrictions on pricing, valuation and exit norms. Absent such regulatory changes, hybrid equity like instruments that are prevalent in the market do not provide absolute enforceability certainty to investors and hence is an obstacle to investments into India.
  • A constraint faced by many strategic and financial investors into India is the regulatory bar on acquisition financing by Indian banks. Access to debt for funding M&A activity in India would again enhance the level of M&A in India.

The Insolvency Code; Judicial Reform –Murtaza Somjee, Partner, JMP:

  • The Indian Insolvency and Bankruptcy Code, 2016 (“IBC”) has spurred M&A activity in the distress space over the last 12 – 15 months. The IBC process provides an opportunityfor Indian founders, with distress companies but remunerative assets, to undertake US Chapter XI type restructuring with strategic third parties, pre-packs and cross border re- structuring.
  • Given that the IBC is still relatively nascent in India, further collaboration with experts on UK insolvency laws were mooted, given the depth of experience that such UK practitioners have had in this area.
  • Increased effectiveness by courts in India in enforcing contracts and foreign arbitral awards, the introduction of the Commercial Courts Act, 2016, amendments to the Arbitration and Conciliation Act, 1996 along with the Government’s initiative to encourage institutional arbitration were welcomed as incremental first steps in judicial reforms.
  • The institution of commercial courts in almost all states in India means that disputes of a commercial nature may be completed on an expedited basis and by judges who are more well versed in commercial matters. The amendments to the Arbitration Act in respect of timelines for completion of arbitrations will require to be tested to assess its practical effectiveness.

Taxation Regime – Harshal Kamdar, Partner, PWC:

  • The taxation regime in India, remains opaque as regards interpretation and implementation of tax laws by officers at the department and is therefore still subject to signification litigation risk.
  • The Government’s revised bilateral investment treaty (“BIT”) which seeks to remove taxation related disputes from being arbitrable under the BIT, unless all judicial remedies have been exhausted has caused a significant degree of concern amongst foreign investors.
  •  Sub-classification and multiple distinctions between financial investors as a class lead to further subjectivity in interpretation and hence litigation risk for foreign investors in the Indian M&A market.

Doing Business in India – Othman Shaukat, Managing Director, Salonica:

  • Differing laws in various states, such as in matters related to property, stamp duties, entertainment and employment was highlighted as a key constraint for investors in evaluating the Indian market.
  • The need to invest resources and time in undertaking all forms of diligence is essential for all investments into India.
  • Liaising with government in certain sectors is important as it allows one to understand the perspective or view of the government and hence if possible modify aspects of the business accordingly.

City of London – Role and Initiatives on Insolvency – Amar Mistry, City of London Corporation

Amar Mistry highlighted the role of COLC, which represents the UK financial services sector and is active in the UK – India channel. One key piece of work that the COLC undertakes is showcasing UK legal expertise and supporting the Indian regulators with framework development. In this regard, as the new Insolvency and Bankruptcy Code is based on the English model, COLC has been actively engaging with the IBBI – the Indian insolvency regulator. The COLC has built a consortia of legal firms that are keen to share their expertise with the IBC and help the team shape the Indian Insolvency regime as it evolves, has been very valuable for them. COLC’s next step is to engage with firms that are willing to put together and present case studies directly to the IBBI, on the following topics:

• Enforcing the Law of Contract
• Resolution of cross border insolvencies especially in light of EC Insolvency Regulation. • Treatment of contingent proofs of claim in insolvency proceedings.
• Liability of group companies acting as guarantors in any restructuring of the insolvency entity.
• Treatment of ‘ipso facto’ clauses in insolvency proceedings.
• Resolving insolvency of a group simultaneously through one process rather than multiple parallel process/RPs/CoCs
• Restructuring a company which has many disparate verticals – by doing a piecemeal sale/ resolution rather than a composite sale to a single buyer; which is allowed under UKIA but not under IBC and leads to companies like Lanco, which had significant interest for discrete portions/verticals on a going concern basis but no interest for the composite company, and so will likely go into liquidation

• Resolving conflicts between RP’s and the Committee of Creditors (CoC) – as the CoC appoints the RP in current and future mandates, the RP can be under a lot of pressure from the CoC whereas he is required to act in the interests of all stakeholders

Any UK law firm interested in working with COLC on the above, please get in touch with

JM+P advised on a fresh fund raising by on-demand food delivery platform Faasos Food Services

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JM+P advised on a fresh fund raising by on-demand food delivery platform Faasos Food Services from new investors including Evolvence India Fund.

Role – Jerome Merchant + Partners advised Evolvence India Fund.
Members of JM+P team: The team was led by Partner Murtaza Somjee along with Associate Minal Sangatwani.

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JM+P advised Centrum in its proposed acquisition of the supply chain finance business of L&T Finance

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JM+P advised Centrum in its proposed acquisition of the supply chain finance business of L&T Finance.

Centrum Financial Services Ltd, the NBFC arm of the Centrum Group, entered into an agreement with L&T Finance Ltd for the acquisition of L&T Finance’s supply chain finance business comprising a loan book of approximately Rs 800 crore.

Role – Jerome Merchant + Partners advised Centrum Financial Services Ltd.

Members of JM+P team: The team was led by partners Sameer Sibal and Vishnu Jerome along with associates Ankur Gupta, Anna Liz Thomas, Ravishankar M and Rishabh Amber Gupta.

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SMECorner raises $7 million from Capital First, Accion Ventures, Others

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MUMBAI: Online micro-lending platform SMECorner has raised around $7 million (Rs 47.5 crore) from Capital First, existing investor Accion Ventures and a clutch of high net worth individuals.

The capital is a mix of equity and debt — Rs 25 crore in debt and Rs 22.5 crore in equity. Capital First has put in the entire debt portion and infused Rs 12 crore worth of equity investment. Capital First will own a 14.2% stake in SMECorner post this investment.

SMECorner, which enables small and medium enterprises to access loans from banks and NBFCs, will use the capital to scale its loan book by expanding on its offline branches and honing technology platform.

The three-year-old company, which shifted from a marketplace model to an NBFC, having received its licence in February this year, has about 700 customers on its books. It offers loans to small businesses across retail, manufacturing and trade including wholesale and B2B, and has lent Rs 45 crore so far.

Apart from direct access to Capital First’s debt pool for scaling its operations, SMECorner has entered into a strategic arrangement wherein the loans originated by the company will be booked on Capital first’s books with a riskshare agreement in place. SMECorner will get a service fee for the loans. “We want to grow our loan book to about Rs 400 crore by (the end of)FY19 and to Rs 1,500-2,000 crore by FY20. This partnership will help us achieve that scale even as we are in talks with a few B2B platforms to enable loans for their participant vendors thus helping us scale our customer base too,” SMECorner founder Samir Bhatia said.

Bhatia is targeting to expand the client base to 5,000 by the end of this financial year and a loan book of Rs 5,000 crore in three years.

The company currently offers loans to small businesses at interest rates of 19-26% depending on the size of loans, an average of which is about Rs 6 lakh.

A part of the capital is also being used to hone its credit-worthiness analysis technology tools including the Optical Character Recognition (OCR) tool, that analyses data on paper and crunches cash flows immediately. SMECorner which has applied for a patent for this technology, will also enable sharing of its technology tools with Capital First as part of this investment round.

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