SPECIALIZED WHITE COLLAR CRIME TEAM:

Diwan Advocates maintains a robust and specialized White Collar Crime and Economic Offences practice, led by its Partner, Dr. Farrukh Khan. The Firm is widely recognised for advising and representing clients in high stakes matters involving allegations pertaining to complex financial, corporate, and regulatory misconduct. White collar prosecutions today are rarely confined to a single forum; they frequently unfold across parallel criminal, civil, regulatory, and insolvency proceedings, demanding a sophisticated command over substantive criminal law, procedural safeguards, and industry specific regulatory regimes. Our practice is defined by a strategic, defence oriented approach that is carefully aligned with the factual matrix, legal vulnerabilities, and commercial realities of each case.

INTERPLAY OF PMLA & IBC:

A key differentiator of our White Collar Crime practice is its strong integration with the Firm’s Insolvency and Bankruptcy Code (IBC) practice, coupled with our extensive experience in handling matters involving multiple cross implications. Our parallel expertise in insolvency and restructuring enables us to bring a nuanced understanding of corporate structures, financial arrangements, related party transactions, fund flows, and commercial decision making, which are issues that frequently form the core of allegations in economic offence and fraud prosecutions. Our experience in dealing with overlapping and interlinked proceedings, such as criminal prosecution, PMLA enforcement, insolvency processes, regulatory action, and civil recovery, allows us to anticipate risks, harmonise defence strategies, and prevent adverse spill over across forums, thereby adding substantial value to our clients’ overall defence.

OUR STRENGTH:

Our white collar crime team advises and represents clients across the entire spectrum of economic offences, including financial and banking fraud, credit related offences, corporate and accounting irregularities, diversion and misappropriation of funds, and money laundering proceedings under the Prevention of Money Laundering Act, 2002 (PMLA). We also act in matters relating to allegations in respect of cyber and technology enabled crimes, bribery and corruption, tax and fiscal offences, and violations of securities laws, corporate governance standards, and statutory compliance frameworks. The Firm regularly represents promoters, directors, key managerial personnel, senior executives, professionals, and corporate entities confronted with criminal prosecution, regulatory scrutiny, and enforcement action.

Diwan Advocates offers comprehensive, end to end legal support throughout the lifecycle of investigations and enforcement proceedings initiated by authorities such as the Enforcement Directorate (ED), Central Bureau of Investigation (CBI), Serious Fraud Investigation Office (SFIO), and securities and market regulators. Our experience spans advisory and representation in search and seizure actions, issuance of summons, recording of statements, provisional attachment and confiscation proceedings, arrest and bail matters, adjudication processes, as well as trial and appellate litigation. We routinely appear before Trial Courts, Special Courts, High Courts, and appellate forums across India in some of the most complex and sensitive white collar criminal matters.

WHITE COLLAR (NON-CONTENTIOUS) ADVISORY:

Beyond courtroom advocacy, the Firm places strong emphasis on proactive risk management and compliance. We advise clients on risk assessment, internal controls, compliance structuring, and preventive strategies designed to mitigate exposure to white collar criminal liability. Our objective is not only to defend proceedings once initiated, but also to safeguard personal and corporate rights, manage regulatory and reputational risk, and secure effective, outcome oriented solutions through precise legal strategy, deep subject matter expertise, and rigorous advocacy.

RECENT ENGAGEMENTS:

Diwan Advocates has extensive experience in advising and representing clients in some of the most sensitive and high profile white collar and economic offence matters in India. The Firm and its leadership have acted in cases involving senior political functionaries, prominent public officials, leading industrialists, infrastructure and real estate promoters, and senior executives of large corporate groups, where proceedings involved serious allegations of financial impropriety, corruption, money laundering, and abuse of official position.

Our experience includes representing clients in matters involving large scale infrastructure and real estate transactions, complex fund flow structures, alleged diversion and siphoning of funds, policy driven commercial decisions subjected to criminal scrutiny, and enforcement actions arising out of regulatory, vigilance, and investigative proceedings. Several of these matters have involved extensive media attention, multi agency investigations, and parallel proceedings before criminal courts, special courts under economic statutes, High Courts, and regulatory forums.

The Firm has also handled cases involving senior government officers and public servants facing prosecution under anti corruption laws, money laundering statutes, and economic offence frameworks, where defence strategy required a careful examination of decision making processes, statutory discretion, approvals, and the distinction between criminal intent and bona fide administrative or commercial actions.

Across these matters, our role has included advising during investigations, representing clients in search and seizure related proceedings, responding to summons and statements, handling arrest and bail proceedings, challenging attachment actions, and conducting trial and appellate litigation. Our experience in managing high stakes matters with cross implications across criminal law, regulatory enforcement, insolvency proceedings, and civil disputes has consistently enabled us to deliver coherent and effective defence strategies while safeguarding both personal liberty and long term commercial interests.

Diwan Advocates

Intellectual Property Law Practice

A pharmaceutical company spends twelve years and hundreds of crores developing a new molecule. A competitor files a patent application for a process that is, on close reading, the same invention described differently. The original company has 60 days from the date of publication to oppose the application. They call a lawyer on day 55.

A fashion brand discovers that a manufacturer in Surat is selling near-identical products under a name that looks and sounds like theirs. The counterfeits are already on e-commerce platforms. By the time a civil suit is filed, heard, and decided, the brand's reputation has taken the hit. They need an interim injunction within days, and they need the platforms to take the listings down now.

A software startup is acquired by a foreign buyer. During due diligence, the buyer's lawyers discover that the core product contains open-source components licensed under the GPL. The startup's founders did not know this created a problem. It does. GPL requires that any software incorporating GPL code be made available under the same terms. The buyer's plan to keep the source code proprietary is suddenly in question.

Intellectual property law is not abstract. It is the legal architecture that determines whether a company can protect what it built, charge for what it created, and stop others from free-riding on its investment. Getting it right requires technical knowledge, commercial judgment, and the ability to move fast when infringement happens.

At Diwan Advocates, our IP practice covers patents, trade marks, copyright, designs, geographical indications, trade secrets, and the increasingly complex questions of IP in digital and technology contexts. We advise on registration and prosecution, on licensing and commercialisation, on enforcement and defence, and on the IP dimensions of corporate transactions.

Patents

A patent grants its holder the exclusive right to make, use, sell, and import a patented invention in India for 20 years from the date of filing. The Patents Act, 1970 requires that an invention be novel, involve an inventive step, and be capable of industrial application. Section 3 sets out what is not patentable, including discoveries of natural phenomena, mathematical methods, business methods, and critically for the technology sector, computer programmes per se.

What Is and Is Not Patentable in India

The Section 3(k) exclusion for computer programmes per se has been interpreted by the Indian Patent Office and courts to mean that software implemented inventions can be patented if they produce a technical effect beyond the normal physical interactions between software and hardware. A pure business method implemented in software is not patentable. A software-implemented process that solves a specific technical problem in a novel way may be. The line is not always clear, and drafting the claims to capture the technical effect while satisfying the Section 3(k) test requires careful prosecution strategy.

Section 3(d) of the Patents Act, which prohibits the grant of patents for new forms of known substances unless they demonstrate significantly enhanced efficacy, is one of the most debated provisions in global pharmaceutical patent law. The Supreme Court upheld it in Novartis AG v. Union of India (2013), rejecting the patent for imatinib mesylate, the active ingredient in Gleevec. The provision is intended to prevent evergreening, the practice of making minor modifications to extend patent protection on medicines whose original patents are expiring.

Patent Prosecution and Opposition

Filing a patent application in India begins a prosecution process that typically takes three to five years from filing to grant. Once filed, the application is examined and the examiner raises objections. The applicant must respond within twelve months of the first examination report. A pre-grant opposition can be filed by any person at any time before the patent is granted. A post-grant opposition can be filed by an interested person within twelve months of the date of publication of the grant. We manage prosecution from initial drafting through examination, opposition proceedings, and appeal before the Intellectual Property Appellate Board.

Compulsory Licensing

Sections 84 to 92 of the Patents Act allow the Controller of Patents to grant a compulsory licence to a third party to work a patent without the patent holder's consent, where the reasonable requirements of the public with respect to the invention have not been satisfied, the invention is not available to the public at a reasonably affordable price, or the invention is not worked in India. The first compulsory licence ever granted in India was issued in 2012 for the anti-cancer drug sorafenib tosylate in Natco Pharma v. Bayer Corporation. Compulsory licensing remains a live issue in pharmaceutical patent disputes.

Trade Marks

A trade mark is any sign capable of distinguishing the goods or services of one undertaking from those of another. The Trade Marks Act, 1999 protects words, logos, device marks, three-dimensional shapes, colours, sounds, and smell marks. Registration gives the owner the exclusive right to use the mark for the registered goods and services and the right to sue for infringement. Unregistered marks are protected through the common law action of passing off.

Registration Strategy

A trade mark application filed in India designates one or more of the 45 Nice Classification classes of goods and services. The scope of protection is broadly limited to the class or classes in which the mark is registered, though well-known marks are protected across classes. Filing strategy matters: a mark registered only in the class covering the applicant's current business is vulnerable to infringement in adjacent classes as the business expands. We advise on classification strategy, on the relative merits of seeking well-known mark status, and on building a registration portfolio that keeps pace with business growth.

Examination, Opposition, and Rectification

After a trade mark application is examined and accepted, it is published in the Trade Marks Journal. Any person can oppose the application within four months of publication. Grounds of opposition include that the mark is identical or deceptively similar to an earlier mark, that it is descriptive or generic, or that it was applied for in bad faith. A registered mark can be challenged by a rectification application to the High Court on grounds including non-use for a continuous period of five years and three months. We conduct opposition proceedings and rectification applications on behalf of both applicants defending their marks and third parties challenging marks that should not have been registered.

Infringement and Passing Off

Trade mark infringement requires use of a mark identical or deceptively similar to the registered mark in relation to identical or similar goods or services, in the course of trade. Passing off does not require registration: it protects the goodwill a business has built up in its unregistered name or mark against misrepresentation by a third party that causes or is likely to cause damage. Both causes of action can be brought simultaneously. In urgent cases involving active counterfeiting, we apply for an ex parte interim injunction before the High Court, often combined with an Anton Piller order allowing a court-appointed commissioner to enter the defendant's premises and seize infringing goods and records.

Copyright

Copyright protects original creative works from the moment they are created. Registration is not required for protection, but it creates an evidentiary presumption of ownership and is important in enforcement. The Copyright Act, 1957 protects literary works including software and databases, musical works, artistic works, cinematograph films, and sound recordings. The term of protection is the life of the author plus 60 years for most categories of work.

Ownership and the 2012 Amendment

The question of who owns a copyright is frequently contested. Where an employee creates a work in the course of employment, the employer is typically the first owner. Where a work is commissioned, the position depends on the category of work. The 2012 amendment introduced a provision that an author or composer who assigns copyright to a film producer or sound recording producer retains the right to receive an equal share of royalties for uses other than as part of the film or recording. This right cannot be contracted away and has been the subject of significant litigation in the music industry.

Fair Dealing and Exceptions

The Copyright Act provides exceptions to infringement for fair dealing for the purposes of research, private study, criticism, review, and reporting of current events. These are narrower than the fair use doctrine in the United States and do not permit wholesale copying even for non-commercial purposes. Educational exceptions allow reproduction for teaching purposes within prescribed limits. The boundaries of these exceptions are increasingly tested in the context of training AI systems on copyrighted content, a question Indian courts have not yet definitively answered.

Online Infringement and Takedowns

Online copyright infringement is widespread. A rights holder who discovers infringing content on a platform can send a takedown notice to the platform relying on the intermediary liability framework under Section 79 of the Information Technology Act, 2000. A platform that fails to act expeditiously on a takedown notice from a rights holder loses its safe harbour protection and becomes liable for the infringement. We send takedown notices, manage platform responses, and where platforms are unresponsive, obtain John Doe injunctions from the High Courts requiring ISPs to block access to infringing content.

Designs

The Designs Act, 2000 protects the visual features of a finished article: its shape, configuration, pattern, ornamentation, or composition of lines or colours, applied to the article by any industrial process. Protection requires that the design be new or original and not previously published. Registration gives a ten-year monopoly, extendable by five years on payment of the prescribed fee.

Design protection is separate from and narrower than copyright protection. It protects the appearance of an article as applied to a specific class of goods, not the underlying artistic work. A design registered for a textile pattern protects that pattern when applied to textiles in the registered class. It does not necessarily protect it when applied to wallpaper or ceramics without a separate registration. Designs that are primarily dictated by function rather than aesthetics are not registrable.

Design infringement in consumer goods, furniture, fashion, and packaging is a fast-moving area. The combination of design registration and trade dress passing off is often used to protect product appearance comprehensively, covering both the registered design and any acquired distinctiveness the product has built in the market.

Trade Secrets and Confidential Information

India does not have a dedicated trade secrets statute. Protection for confidential business information relies on contractual obligations of confidence, the law of breach of confidence as developed by the courts, and in some cases the tort of inducement of breach of contract where a competitor has actively recruited employees to acquire confidential information.

The practical protection of trade secrets begins long before any dispute arises. Employment agreements must contain well-drafted confidentiality clauses that survive termination. Technology transfer agreements must clearly define what is confidential and what the recipient can and cannot do with it. Access to genuinely sensitive information should be limited on a need-to-know basis and documented. When an employee leaves and joins a competitor, the strength of the legal response available depends directly on the quality of the documentation that was put in place during the employment.

Non-compete clauses in Indian employment agreements face a significant legal constraint. Section 27 of the Indian Contract Act, 1872 renders agreements in restraint of trade void. Indian courts have consistently held that a post-employment non-compete clause is void as a restraint of trade, regardless of the duration or geographic scope. A non-solicitation of customers clause is generally upheld if it is reasonable in scope. A confidentiality obligation survives employment and is enforceable. Understanding this distinction is essential for businesses seeking to protect their competitive position when key employees leave.

IP in Corporate Transactions

Intellectual property is often the most valuable asset in a technology or brand-driven business, and its legal health determines the value and risk profile of any transaction involving that business.

IP Due Diligence

In an acquisition or investment, IP due diligence covers ownership of all registered and unregistered IP, validity of key registrations, freedom to operate analysis identifying third-party IP that the business's products or processes may infringe, chain of title for IP created by founders before incorporation or by contractors without assignment agreements, open-source licence compliance in software products, and the terms of all existing IP licences including any restrictions on assignment or change of control. A gap in IP ownership or a contaminating open-source licence discovered after closing can significantly affect the value of what was acquired.

IP Licensing

An IP licence grants a licensee the right to use IP owned by the licensor within defined parameters. The key terms of any IP licence are the scope of the grant (what rights, in what territory, for what products), whether the licence is exclusive or non-exclusive, the royalty structure, sublicensing rights, audit rights, quality control obligations where brand standards must be maintained, and what happens on termination. We draft and negotiate IP licences across all categories of IP and across all industries, including patent licences for technology transfer, trade mark licences for franchising and distribution, and copyright licences for content distribution.

IP Assignment in M&A

In a share acquisition, the IP stays with the target company and transfers with it. In an asset acquisition, IP must be specifically identified and assigned. Each category of IP has its own assignment requirements. Patent assignments must be in writing and registered with the Patent Office to be effective against third parties. Trade mark assignments must be recorded with the Trade Marks Registry. Copyright assignments must be in writing signed by the assignor. A failure to properly execute and register an IP assignment can leave the buyer without the title they paid for.

Enforcement: Getting to Court Fast

IP infringement causes damage that compounds with delay. A counterfeit product in the market erodes brand value and consumer trust. A competitor using a patented process has a cost advantage that grows every day. Online infringing content spreads faster than litigation. The first priority in any enforcement situation is speed.

Interim Injunctions and Anton Piller Orders

An interim injunction from the High Court can stop the infringement within days of filing. The applicant must show a prima facie case, that the balance of convenience favours a grant, and that damages would not be an adequate remedy. In trade mark and copyright cases involving active counterfeiting, courts will also grant Anton Piller orders, allowing a court-appointed commissioner to enter the defendant's premises without notice, inspect, photograph, and seize infringing goods and records. These orders are among the most powerful tools in IP enforcement and require careful preparation to obtain and execute correctly.

John Doe Orders and Online Enforcement

Where infringing content is hosted by unknown parties or distributed through multiple websites, the courts can issue John Doe orders, also called Ashok Kumar orders after the Indian variant, directing ISPs and platforms to block access to infringing content at specified URLs or more broadly. These orders are regularly granted in film piracy and software piracy cases. We obtain and enforce John Doe orders and manage the ongoing monitoring required to ensure that infringing content does not reappear at new URLs after a blocking order.

Border Measures

IP rights holders can record their registered trade marks and copyrights with the Customs authorities under the Customs Act, 1962 and the IPR (Imported Goods) Enforcement Rules, 2007. Once recorded, Customs officers can detain suspected infringing goods at the border and notify the rights holder, who then has a limited period to take legal action. This is one of the most cost-effective enforcement tools available against imported counterfeits.

Why Diwan Advocates for Intellectual Property?

Legislative Reference Index

Intellectual property is only as valuable as the legal protection behind it.

We build that protection and defend it when it is challenged.

Diwan Advocates  |  Intellectual Property Practice  |  Delhi, India

Diwan Advocates

Delhi, India  |  Full-Service Legal Practice

A company receives a CCI dawn raid at 9 in the morning. By 9:15, they need to know what investigators can and cannot take, what employees should and should not say, and whether any of the documents on the server are legally privileged. They do not need a firm that handles competition law occasionally. They need one that has done this before.

A founder signs a term sheet for Series A funding from a Singapore-based investor. The cap table has three co-founders, one of whom has left, two ESOP tranches that were never formally issued, and a convertible note from 2022 whose conversion terms nobody documented properly. The investor finds all of it in due diligence. The deal is not dead. But it needs fixing, fast, by people who understand both the Indian company law position and what the investor needs to see.

A woman in Delhi receives a court summons from a family court abroad. Her husband filed for divorce three months ago without telling her. She did not know the proceedings existed until the summons arrived. She has two children in school in Delhi and property jointly held with her husband. She needs to understand within 48 hours what her rights are, whether the Indian courts have jurisdiction, and what she should do first.

Three clients. Three completely different areas of law. One common thread: when a serious legal matter arrives, the quality of the lawyers you have matters more than anything else.

Diwan Advocates is a full-service law firm based in Delhi. We work across 45+ practice areas, from corporate transactions and tax to criminal defence, family law, data privacy, competition, environment, and entertainment. We advise businesses, founders, individuals, and institutions. The lawyers who advise on your matter are the lawyers who appear in court on it.

What We Do: Our Practice Areas

Why Clients Choose Diwan Advocates

How We Can Help You

If you run a business

We help with company formation, shareholders agreements, investment transactions, and merger clearances. We draft and review the commercial contracts your business depends on. We advise on GST, direct tax, and transfer pricing. When a dispute arises, with a supplier, a customer, a competitor, or a regulator, we handle it.

If you are a founder or startup

We structure equity, ESOP schemes, and term sheets. We handle FEMA compliance for foreign investment. We advise on data privacy and technology contracts from the early stage, before problems accumulate. We have worked with companies from incorporation through to acquisition.

If you are an individual

We handle family law matters across all personal law frameworks with the discretion they require. We advise on property purchases, succession planning, and wills. We represent individuals in criminal proceedings, including bail, trial, and appeal. We advise NRIs on the Indian legal implications of decisions made abroad.

If you are facing regulatory action

We defend companies and individuals in CCI investigations, SEBI enforcement proceedings, Income Tax prosecutions, SFIO fraud investigations, and data protection enforcement. We also advise on how to avoid regulatory action in the first place through properly structured compliance programmes.

If you are in a dispute

We appear before the Supreme Court, High Courts, NCLT, NCLAT, NGT, commercial courts, family courts, and consumer forums. We handle domestic and international arbitration. We obtain urgent interim relief when it is needed quickly. We also know when negotiating a settlement is the better outcome and pursue it without hesitation.

If you work in a creative or technology industry

We advise creators, platforms, labels, studios, athletes, gaming companies, and AI developers on the law that governs their work. We handle copyright disputes, personality rights protection, OTT licensing, defamation defence, DPDPA compliance, and technology M&A. We understand the industries we advise.

The Integrated Advantage

Most significant legal matters touch more than one area of law. A factory that receives a closure order from the pollution control board may also face a criminal complaint against its directors, a claim from affected residents before the NGT, a lender demanding compliance under its loan covenants, and a tax assessment disputing its remediation expenses, all at the same time. A single-practice firm cannot handle that. A firm with disconnected practice groups gives each part to a different team that does not speak to the other.

At Diwan Advocates, our practice areas work together. The taxation team is involved when a family law matter has estate planning implications. The competition team is involved when a commercial contract contains potentially anti-competitive clauses. The environment team and the company law team coordinate when a listed company faces both regulatory and market disclosure obligations arising from the same environmental incident. This is not a marketing point. It is how we actually operate, and the clients who have needed it know the difference it makes.

The Legal Landscape Has Changed. We Are Ready for It.

Between 2023 and 2025, India enacted more significant new legislation than in any comparable period in recent memory. The Bharatiya Nyaya Sanhita replaced the Indian Penal Code. The Bharatiya Nagarik Suraksha Sanhita replaced the Code of Criminal Procedure. The Bharatiya Sakshya Adhiniyam updated the law of evidence. The Digital Personal Data Protection Act created India's first comprehensive data protection regime. The Telecom Act replaced a framework from 1885. The Competition Amendment Act changed the merger control regime. The Van Adhiniyam changed forest clearance law. The Surrogacy Regulation Act changed family formation law.

Not every firm has kept pace. We have. Our advice reflects the law as it stands today, including the provisions that have not yet been tested in court, the regulations still being finalised, and the areas where the legislative intent is clear even if the procedural rules are not. We tell clients what is certain and what is not, and we advise them on how to act sensibly in both situations.

Whatever the legal matter, the question is always the same:

do you have lawyers who know this area, who will give you a straight answer,

and who will see it through to the end?

At Diwan Advocates, the answer is yes.

Diwan Advocates  |  Delhi, India

Diwan Advocates

SARFAESI and Secured Lending Practice

A bank's borrower has not paid in over a year. The account is an NPA. The security is a commercial property worth more than the loan outstanding. Before SARFAESI, the bank filed a suit and waited. Now it serves a demand notice, waits 60 days, takes possession, and sells at auction. No court permission needed. If the borrower wants to fight it, the borrower goes to the DRT.

A manufacturing company gets a possession notice under Section 13(4). The promoters signed personal guarantees. They believe the NPA classification was wrong and the demand notice misstated the amount. They have 45 days to file before the DRT. After that, the right is gone.

SARFAESI gives secured creditors real power. It also gives borrowers and guarantors specific procedural rights that, used correctly and quickly, can constrain that power. At Diwan Advocates, we work on both sides: lenders enforcing, and borrowers and guarantors defending.

What SARFAESI Does

The SARFAESI Act, 2002 allows secured creditors to enforce a security interest in movable or immovable assets without going to court. It applies to scheduled banks, notified financial institutions, housing finance companies, and NBFCs above the RBI's prescribed asset threshold. Agricultural land, loans below Rs 1 lakh, and accounts where less than 20 percent of the principal is outstanding are excluded.

The security interest must be a recognised form under Indian law: equitable mortgage by deposit of title deeds, registered mortgage, hypothecation over movables, or a charge under the Companies Act. An unsecured guarantee alone is not sufficient.

The Enforcement Process: Step by Step

Step 1: NPA Classification

The account must be an NPA under the applicable RBI norms before enforcement can begin. For banks, that means interest or principal overdue for more than 90 days. A notice served before proper NPA classification is vulnerable to challenge.

Step 2: Section 13(2) Demand Notice

The secured creditor serves written notice on the borrower and guarantor specifying the amount due and the secured assets intended to be enforced. The borrower has 60 days to pay in full. The notice must be served by registered post. Defects in the notice or its service are grounds for challenge before the DRT.

Step 3: Borrower's Representation

The borrower can make a written representation within 60 days disputing the amount, the NPA classification, or the notice itself. The secured creditor must consider it and, if rejected, give written reasons. Failure to do so is a ground of challenge.

Step 4: Section 13(4) Possession

If payment is not made within 60 days, the secured creditor can take possession, take over management, appoint a manager, or require payment from a person who acquired the secured asset from the borrower. Possession may be symbolic, by affixing a notice and publishing in newspapers, or physical. Where the occupant resists, the secured creditor applies to the Chief Metropolitan Magistrate or District Magistrate under Section 14 for assistance. The CMM or DM acts in an executive, not judicial, capacity.

Sale of the Secured Asset

Once in possession, the secured creditor sells by public e-auction under the Security Interest (Enforcement) Rules, 2002. The key requirements are straightforward: obtain a valuation, set a reserve price at or above the valuation, publish a notice in two newspapers at least 30 days before auction, and serve the notice on the borrower personally.

The borrower can redeem the asset at any time before the actual sale by paying the full outstanding amount including costs. This right cannot be contracted away. On completion of sale, the authorised officer issues a sale certificate. The buyer's title is subject to prior charges and statutory dues that rank ahead of the secured creditor.

Challenging Enforcement: Section 17 Before the DRT

Any person aggrieved by a measure under Section 13(4) can file an application before the Debt Recovery Tribunal within 45 days of the measure. The DRT can condone delay for a further 45 days on sufficient cause. Beyond 90 days, the right is extinguished. This is the hardest deadline in SARFAESI practice.

Grounds of challenge include improper NPA classification, defective or unserved demand notice, failure to consider the borrower's representation, incorrect amount in the notice, exclusion of the asset from SARFAESI's scope, and procedural failures in taking possession. A stay of the sale pending the application is available but typically requires a deposit of part of the outstanding amount.

Orders of the DRT can be appealed to the Debt Recovery Appellate Tribunal under Section 18. The DRAT requires a pre-deposit of 50 percent of the debt as determined by the DRT, which can be reduced on application. This deposit condition is the single biggest practical constraint on appealing DRT orders.

Guarantors: Enforcement and Defences

Where a personal or corporate guarantor has created security over their own assets, the Section 13(2) notice must be served on them as well. They have the same 60-day period to pay and the same right of representation. Their secured assets can be enforced in the same way as the borrower's.

Guarantors have specific legal defences under the Indian Contract Act, 1872: if the creditor varied the principal contract without the guarantor's consent, released the principal debtor, or gave time without reserving rights against the guarantor, the guarantor may be discharged. Whether any defence is available depends on the guarantee's terms and the facts.

Asset Reconstruction Companies

ARCs acquire NPAs from banks at a discount, step into the lender's shoes, and enforce the security under SARFAESI. They fund acquisitions by issuing security receipts to qualified institutional buyers. The RBI regulates ARCs under the Act.

When a loan is assigned to an ARC, the borrower's counterparty changes. The ARC bought the loan at a discount and its economics differ from the original bank's. This creates room for negotiated settlement at amounts the original lender may not have accepted. We advise borrowers on engaging with ARCs from a position of legal knowledge and realistic commercial understanding of what the ARC needs to achieve.

SARFAESI and the IBC

When a CIRP is admitted against the borrower, the Section 14 moratorium under the Insolvency and Bankruptcy Code, 2016 stays all SARFAESI enforcement, including proceedings already underway. An ongoing auction can be halted. The secured creditor joins the Committee of Creditors and votes on the resolution plan.

The strategic choice between invoking SARFAESI and initiating CIRP depends on the security value, the business viability, the number of creditors, and the prospect of a resolution plan. Sometimes both routes run in parallel until one produces a result. We advise lenders on this choice and manage both processes simultaneously where that is the right approach.

Why Diwan Advocates for SARFAESI?

Legislative Reference Index

SARFAESI runs on deadlines that do not wait. Whether you are enforcing or defending, the time to act is now.

Diwan Advocates is ready.

Diwan Advocates  |  Delhi, India

Diwan Advocates

Real Estate Practice

Real estate transactions in India touch multiple overlapping laws: title, registration, stamp duty, regulatory approvals, lending, and insolvency. A title defect discovered after registration, a missed RERA deadline, or a lender enforcing security can each unwind years of work. At Diwan Advocates, we advise buyers, sellers, developers, lenders, and investors across the full transaction and dispute cycle.

What We Do

Our real estate practice covers transactional work, regulatory compliance, and litigation. We act for private buyers, institutional investors, developers, banks, and NBFCs.

•      Title and Due Diligence: Revenue records, encumbrance certificates, CERSAI searches, mutation entries, and litigation checks before any acquisition or lending decision.

•      Transactions and Structuring: Sale deeds, development agreements, joint venture documents, and leases drafted and negotiated with stamp duty and registration requirements built in.

•      RERA Compliance: Project registration, disclosure obligations, allotment agreements, and complaints before the Real Estate Regulatory Authority and the Appellate Tribunal.

•      Secured Lending and Enforcement: Mortgage creation, charge registration, SARFAESI enforcement, and auction purchase due diligence for banks and NBFCs.

•      Acquisition and Sale Disputes: Specific performance, possession, cancellation of sale deeds, and injunctions before civil courts and high courts.

•      Landlord and Tenant: Lease drafting, rent recovery, eviction proceedings, and disputes under applicable rent control legislation.

•      Acquisition by the State: Compensation challenges and enhanced compensation proceedings under the Land Acquisition Act, 2013.

Title and Due Diligence

Title in India is not registered in the Torrens sense. Ownership is established by a chain of documents. A buyer or lender must trace the chain back far enough to be satisfied that the seller or mortgagor has clear, marketable title and the power to sell or mortgage.

A standard diligence exercise covers:

•      Title documents going back 30 years minimum, cross-checked against revenue records and mutation entries.

•      Encumbrance certificate from the sub-registrar showing registered transactions affecting the property.

•      CERSAI search to identify any registered security interest under the

•      CERSAI search to identify any registered security interest under the SARFAESI Act, 2002.

•      Charge search with the Registrar of Companies where the seller or mortgagor is a company, under the Companies Act, 2013.

•      Pending litigation search in courts having jurisdiction.

•      Regulatory approvals: conversion orders, building plan sanctions, occupation certificates, and RERA registration where applicable.

Gaps in the title chain, unregistered transactions, or undisclosed encumbrances create risk that no indemnity clause fully cures. We advise on when to proceed, when to seek additional representations, and when to walk away.

Stamp Duty and Registration

Every instrument of sale, mortgage, or lease must be stamped under the applicable State Stamp Act or the Indian Stamp Act, 1899, and registered under the Registration Act, 1908 where required. An insufficiently stamped document is inadmissible in evidence and unenforceable. An unregistered sale deed of immovable property does not convey title.

Stamp duty is a significant transaction cost, typically between 4 and 7 percent of the market value depending on the State. Structuring a transaction to reduce duty exposure is permissible; misdescription of consideration is not. We advise on duty-efficient structuring within the law and on curative stamping where historical instruments have shortfalls.

RERA: Real Estate Regulation and Development Act, 2016

The RERA (Real Estate Regulation and Development Act, 2016) applies to residential and commercial real estate projects above prescribed thresholds. Developers must register projects with the State RERA authority before advertising or selling. Allotment agreements must follow the model format. Possession must be delivered by the registered date.

Buyers have enforceable rights to:

•      Refund with interest where the developer fails to complete on time.

•      Compensation for structural defects within five years of possession.

•      Information disclosed in the RERA registration, which the developer cannot unilaterally alter.

Complaints lie before the RERA adjudicating officer for compensation and before the authority for other violations. Orders are appealable to the RERA Appellate Tribunal, and from there to the High Court. We represent buyers pursuing refunds and compensation, and developers responding to complaints.

Mortgages and Secured Lending

The Transfer of Property Act, 1882 governs the creation of mortgages. The principal forms used in practice are the equitable mortgage by deposit of title deeds (requiring notified area notification in most States) and the registered mortgage by deed. Both require stamp duty. A registered mortgage must also be registered under the Registration Act, 1908.

Where the mortgagor is a company, the mortgage is a charge that must be registered with the Registrar of Companies within 30 days of creation. An unregistered charge is void against the liquidator and other creditors on winding up.

On default, a secured creditor with a mortgage over immovable property above the SARFAESI threshold can enforce without court intervention. The sequence is: NPA classification, Section 13(2) demand notice, 60-day waiting period, possession under Section 13(4), and sale by public e-auction. Buyers at SARFAESI auctions take title subject to prior charges and statutory dues. TDS under Section 194-IA of the Income Tax Act, 1961 applies on auction purchases above Rs 50 lakh.

Acquisition and Title Disputes

When a transaction breaks down or title is contested, the remedies depend on the stage and the nature of the dispute.

•      Specific performance of an agreement to sell lies before the civil court under the Specific Relief Act, 1963. The court has discretion, and both quantum of payment and readiness to perform are central to the claim.

•      Possession suits lie where a buyer has paid but not received possession, or where an owner has been dispossessed without due process.

•      Cancellation of a sale deed on grounds of fraud, misrepresentation, or failure of consideration is a civil remedy that can be combined with a criminal complaint under the Bharatiya Nyaya Sanhita, 2023.

•      Injunctions restraining further dealing with a property pending dispute are available but require showing a prima facie case, balance of convenience, and irreparable harm.

We appear before district courts, high courts, and the Supreme Court in real estate disputes, and before RERA authorities and tribunals on regulatory matters.

Legislative Reference

Why Diwan Advocates for Real Estate

Real estate transactions move on negotiated timelines. Disputes do not wait.

Diwan Advocates is ready.

Diwan Advocates  |  Delhi, India

Diwan Advocates

Restructuring and Insolvency Practice

A consortium of lenders is owed Rs 800 crore by a steel company. The promoters have tried to sell the business for two years. No buyer has emerged at a price that covers the debt. One of the lenders files under Section 7. The NCLT admits the application. The moratorium kicks in. A resolution professional takes charge. The promoters lose control of the company they built over twenty years. The lenders, who thought they were secured, discover that the resolution plan that emerges from the CoC pays them sixty paise on the rupee. This is not a failure of the system. This is the system working as designed.

A trade creditor supplied raw materials worth Rs 40 lakh to a manufacturer that has now stopped paying. The creditor has a Section 9 application ready. But the manufacturer's bank has already filed under Section 7, the CIRP has been admitted, and the moratorium is in place. The trade creditor's only route now is to file a claim with the resolution professional and wait to see what the resolution plan offers operational creditors.

Insolvency law is where the interests of every stakeholder collide under a tight statutory timeline. Financial creditors, operational creditors, promoters, employees, government authorities, and resolution applicants all want different outcomes, and the law has a specific answer for each of them. Getting the right advice at the right moment in the process determines how much of that outcome you actually receive.

At Diwan Advocates, we advise across the full insolvency and restructuring landscape: financial creditors initiating and managing CIRP, operational creditors filing and protecting their claims, corporate debtors and promoters navigating the process, resolution applicants structuring and submitting plans, and parties seeking to restructure before formal insolvency begins.

The Insolvency and Bankruptcy Code, 2016

The Insolvency and Bankruptcy Code, 2016 replaced a fragmented insolvency framework spread across the Companies Act, SICA, and the Presidency Towns Insolvency Act with a single consolidated statute. It created the National Company Law Tribunal as the adjudicatory authority, the Insolvency and Bankruptcy Board of India as the regulator, and a time-bound resolution process designed to preserve the going concern value of distressed businesses.

The Code has been significantly amended since 2016, with major changes in 2018, 2019, and 2021 addressing the pre-packaged insolvency framework, personal insolvency, the treatment of home buyers as financial creditors, and the liability of resolution applicants for prior offences of the corporate debtor. The jurisprudence from the Supreme Court and NCLAT has been equally significant, with landmark decisions reshaping the rights of secured creditors, the role of the CoC, and the scope of the moratorium.

Corporate Insolvency Resolution Process

Initiating CIRP: Sections 7, 9, and 10

A financial creditor can file under Section 7 on the basis of a default by the corporate debtor. The threshold for default is Rs 1 crore. The NCLT must admit or reject the application within 14 days. Once admitted, the moratorium begins immediately and the resolution professional is appointed.

An operational creditor, meaning a supplier of goods or services, a contractor, or a government authority owed statutory dues, can file under Section 9. Before filing, the operational creditor must serve a demand notice and wait 10 days. If the corporate debtor disputes the debt in a genuine manner, the NCLT may reject the application. Operational creditors have no vote in the CoC but can submit claims and receive their entitlement under the resolution plan.

The corporate debtor itself can initiate CIRP under Section 10. This voluntary route requires a special resolution of shareholders and is used where the board and promoters accept that the business needs a structured resolution. Voluntary CIRP is relatively rare but can be the right approach where an early start preserves more value than waiting for a creditor to file.

The Moratorium

From the date the NCLT admits the CIRP application, no suit or proceeding can be instituted or continued against the corporate debtor, no enforcement action can be taken against its assets, no recovery can be initiated against it, and it cannot transfer or encumber its assets. The moratorium is automatic and applies to all creditors, including secured creditors and government authorities. It does not apply to proceedings against guarantors, which can continue in parallel.

The Resolution Professional

The resolution professional manages the affairs of the corporate debtor during the CIRP. The promoters and directors lose control of the company on the appointment of the RP. The RP takes custody of all assets, books, and records, constitutes the Committee of Creditors, invites resolution plans, and facilitates the process. The RP can avoid certain transactions made before the CIRP: preferential transactions within two years before the commencement date, undervalued transactions within two years, and fraudulent transactions at any time.

The Committee of Creditors

The CoC consists of all financial creditors. Each member's vote is proportionate to their share of the total financial debt. Operational creditors are not members but are entitled to be heard. The CoC approves or rejects resolution plans by a vote of at least 66 percent of the voting share. It can also decide to liquidate the corporate debtor by a 66 percent vote if no viable plan is found. The CoC's commercial wisdom is given significant deference by the courts, and the NCLT's role is to ensure process compliance, not to second-guess commercial decisions.

Resolution Plans

Any person other than a wilful defaulter or a disqualified promoter can submit a resolution plan. The plan must provide for payment of CIRP costs in full as a first priority, payment to operational creditors not less than what they would receive in liquidation, and payment to dissenting financial creditors not less than their liquidation value. Once the NCLT approves the plan, it is binding on the corporate debtor, its employees, members, creditors, guarantors, and all other stakeholders. All prior claims not provided for in the plan are extinguished.

The Supreme Court in Ghanashyam Mishra and Sons v. Edelweiss ARC (2021) confirmed that this extinguishment applies to income tax and other government dues as well. A resolution applicant acquires a clean slate on plan approval, subject only to what the plan itself provides.

Liquidation

If no resolution plan is approved within the CIRP period, or if the CoC votes to liquidate, the NCLT passes a liquidation order. The resolution professional becomes the liquidator. The corporate debtor's assets are sold and the proceeds distributed according to the waterfall in Section 53.

Section 53 Waterfall

The order of priority is: CIRP costs and liquidation costs first, then secured creditors (up to the extent of their security) alongside workmen's dues for 24 months, then employee dues for 12 months, then unsecured financial creditors, then government dues, then remaining secured creditor claims above security value, then remaining debts, then preference shareholders, then equity shareholders. A secured creditor who opts out of the waterfall and enforces their security separately under SARFAESI relinquishes their right to participate in the waterfall for the shortfall, unless they first relinquish the security to the liquidation estate.

In practice, liquidation recoveries for unsecured and subordinated creditors are very low. Promoting a viable resolution plan over liquidation is almost always the better commercial outcome for all but the most senior creditors.

Personal Insolvency and Guarantor Liability

Part III of the Insolvency and Bankruptcy Code, 2016 governs insolvency of individuals and partnership firms. For personal guarantors to corporate debtors, insolvency proceedings are heard by the NCLT, the same forum that handles the corporate CIRP. For other individuals, insolvency proceedings are heard by the Debt Recovery Tribunal.

A lender can file for personal insolvency of a guarantor simultaneously with or after filing CIRP against the corporate debtor. The personal guarantor cannot claim that the lender must first exhaust its remedies against the corporate debtor before proceeding against the guarantor. The moratorium in the personal insolvency proceeding can, however, stay SARFAESI enforcement against the guarantor's personal assets, which is a critical intersection for secured lenders managing both proceedings at once.

Promoters who have given personal guarantees to lenders face the real prospect of losing personal assets in insolvency proceedings even after the corporate debtor has gone through CIRP. We advise promoters on understanding and managing this exposure, and lenders on using personal insolvency proceedings as an effective recovery tool.

Pre-Packaged Insolvency: The Faster Route

The pre-packaged insolvency resolution process, introduced by the IBC Amendment Act, 2021, is available to MSMEs with defaults up to Rs 1 crore. It allows the corporate debtor to negotiate a resolution plan with creditors before filing with the NCLT, reducing the disruption and cost of a full CIRP. The promoter submits a base resolution plan that is approved by at least 66 percent of the unrelated financial creditors before the NCLT application is made.

The NCLT then has a compressed timeline to approve the plan. If the base plan does not maximise value, the RP can invite competing plans. The pre-pack process preserves management continuity during the resolution period, which is a significant advantage over the standard CIRP route where the promoter loses control from day one. We advise MSME borrowers and their creditors on whether the pre-pack route is appropriate and on structuring the negotiation before filing.

Restructuring Before Insolvency: Out-of-Court Options

The best restructuring outcomes are often achieved before a formal insolvency filing. An out-of-court restructuring avoids the costs, the loss of management control, the reputational damage, and the uncertainty of the CIRP process. It also gives the parties more flexibility to structure a solution that works commercially, without the constraints of the IBC's waterfall and plan approval thresholds.

One-Time Settlements

A borrower with a stressed account can approach the lender for a one-time settlement: a negotiated payment of less than the full outstanding amount in exchange for a full discharge. RBI guidelines require banks to have a board-approved OTS policy and to ensure that OTS terms are documented transparently. From the borrower's perspective, an OTS requires raising the settlement funds quickly, which often involves a combination of asset sales, new equity, and negotiation with other lenders.

Schemes of Arrangement

A solvent company that needs to restructure its capital, merge with another entity, or implement a financial reorganisation can do so through a scheme of arrangement under Sections 230 to 234 of the Companies Act, 2013. The scheme requires approval by a prescribed majority of creditors and shareholders in each class, and then sanction by the NCLT. A scheme can achieve a debt restructuring, a merger, a demerger, or a capital reduction in a single court-supervised process.

Distressed M&A: Acquiring Through the IBC

Acquiring a company through the IBC resolution process is one of the most complex transactions in Indian M&A. The resolution applicant bids for the entire business of the corporate debtor, inheriting its employees, contracts, assets, and liabilities subject only to what the approved plan specifies. Done well, it is an opportunity to acquire a business at a significant discount to its going concern value. Done badly, it is an acquisition with hidden liabilities, broken relationships, and a business that cannot function on day one.

Due Diligence in a CIRP

Due diligence in an IBC process is compressed, sometimes to a few weeks, and conducted on the basis of information made available by the RP rather than by the corporate debtor. The information memorandum prepared by the RP is the primary source. Legal due diligence must cover pending litigation, regulatory proceedings, PMLA attachments, environmental liabilities, title to key assets, material contracts and their change of control provisions, and the corporate debtor's tax position.

Plan Structuring and Submission

The resolution plan must address payment to all creditor classes, treatment of employees, the proposed management structure, and the sources of funds for implementation. A plan that is commercially viable but does not meet the minimum payment thresholds for operational creditors or dissenting financial creditors will be rejected by the NCLT. We structure resolution plans that satisfy the legal requirements while reflecting the commercial logic of the acquisition.

Cross-Border Insolvency

India adopted the UNCITRAL Model Law on Cross-Border Insolvency through Part Z of the Insolvency and Bankruptcy Code which is awaiting notification. Until it is notified, cross-border insolvency in India is handled through bilateral arrangements and the courts' inherent jurisdiction. Indian courts have recognised foreign insolvency proceedings in some cases and declined in others.

For companies with operations or creditors in multiple jurisdictions, the absence of a formal cross-border framework creates significant uncertainty. An Indian company in CIRP may have assets abroad that the resolution professional cannot access. A foreign insolvency representative may not have standing to apply to Indian courts for recognition or assistance. We advise on the practical management of cross-border insolvency situations in the current framework and on structuring transactions to minimise cross-border risk.

Why Diwan Advocates for Restructuring and Insolvency?

Legislative Reference Index

In insolvency, the position you hold at the end depends almost entirely on the advice you received at the beginning.

Diwan Advocates gets you the right advice at the right moment.

Diwan Advocates  |  Delhi, India

Diwan Advocates

Transfer of Property Act Practice

A family buys a flat in Delhi. They pay the full consideration, take possession, and move in. Three years later, a stranger appears with a power of attorney and a sale deed from someone who sold the same flat to them six months before. Both buyers have documents. Only one can win the title suit. The question of who wins depends on who had knowledge of the prior transaction and whether both sales were registered. The Transfer of Property Act settles exactly this kind of dispute, and has done so for over 140 years.

Property law in India is older, more detailed, and more litigated than almost any other area of civil law. The Transfer of Property Act, 1882 governs how immovable property changes hands: by sale, mortgage, lease, exchange, gift, and assignment of actionable claims. It defines what must be done for a transfer to be valid, what rights the transferee gets, and what happens when multiple people claim the same property. Every property transaction in India, whether a flat purchase, a commercial mortgage, a long-term lease, or a gift to a family member, is governed by it.

At Diwan Advocates, we advise on property transactions from due diligence through registration, handle the disputes that arise when transactions go wrong, and represent clients in title suits, specific performance claims, redemption suits, partition proceedings, and RERA complaints. We act for individual buyers, developers, lenders, and commercial landlords.

Sale of Immovable Property

Section 54 of the Transfer of Property Act, 1882 defines a sale as a transfer of ownership in exchange for a price paid, promised, or part-paid. For tangible immovable property valued above Rs 100, the sale must be by a registered instrument. An oral sale of such property passes no title. The sale deed must be executed on properly stamped paper, signed by the seller, and registered with the Sub-Registrar of the district in which the property is situated.

Title Due Diligence

Before any sale deed is executed, the title of the seller must be verified. This means tracing ownership through all prior documents for at least 30 years: sale deeds, gift deeds, court decrees, succession certificates, mutation entries in revenue records, and encumbrance certificates from the registrar's office. A bank or NBFC lending against the property will require a formal title opinion. We conduct title due diligence and issue title opinions that identify defects, missing links in the chain, encumbrances, and litigation risks.

Agreement to Sell and Section 53A

Before execution of the sale deed, parties typically enter an agreement to sell specifying the price, payment schedule, and completion date. An agreement to sell does not transfer title but gives the buyer an equitable interest. Where the buyer has paid part of the consideration, taken possession, and performed their obligations, Section 53A protects them from being dispossessed by the seller even if the sale deed has not been executed. This doctrine of part performance is India's equivalent of the English equitable doctrine, but with an important difference: under Indian law, Section 53A is only a shield, not a sword. The buyer in part performance can resist dispossession but cannot sue to enforce the agreement as a transfer of title. For that, they must file for specific performance.

Specific Performance After the 2018 Amendment

The Specific Relief (Amendment) Act, 2018 changed the law significantly. Before 2018, specific performance of a contract for immovable property was discretionary. Courts could award damages instead if they considered that adequate. After 2018, specific performance is the general rule. A court must order specific performance of a contract for immovable property unless the contract itself has become impossible to perform or the plaintiff has not been ready and willing to perform. This amendment strengthened the position of buyers whose sellers backed out, and has resulted in a significant increase in specific performance suits.

Mortgage: Types, Rights, and Enforcement

Section 58 of the Transfer of Property Act defines a mortgage as the transfer of an interest in specific immovable property to secure the payment of money advanced or to be advanced. The TPA recognises six types of mortgage, each with different legal characteristics and different enforcement mechanisms.

Simple Mortgage

The mortgagor binds themselves personally to pay the mortgage money and agrees that on default, the mortgagee shall have the right to cause the mortgaged property to be sold. No possession passes. Enforcement requires a court decree for sale. This is the most common form used in institutional lending where the security is clearly identified and the lender is comfortable with the court process.

Mortgage by Conditional Sale

The mortgagor ostensibly sells the property to the mortgagee with a condition that on default the sale becomes absolute and on payment the sale is void and the mortgagee re-transfers the property. Courts look carefully at whether a transaction structured as a conditional sale is in substance a mortgage, because the consequences differ significantly for the parties.

Usufructuary Mortgage

The mortgagor delivers possession to the mortgagee, who is entitled to receive the rents and profits from the property and to appropriate them in lieu of interest, or in payment of mortgage money, or both. No right of personal action for the debt arises. The mortgage is discharged when the rents and profits received equal the mortgage money and interest.

English Mortgage

The mortgagor binds themselves to repay the mortgage money on a specified date and transfers the property absolutely to the mortgagee, with a condition that the mortgagee will re-transfer on repayment. This gives the mortgagee power of sale without requiring a court decree, making it attractive for commercial lenders. It is less commonly used in India but is specifically recognised by the TPA.

Mortgage by Deposit of Title Deeds

Created by delivering title documents to the lender with intent to create a security. No written instrument or registration is required to create this mortgage, which is why it is the dominant form used by banks in urban lending. The absence of a registered document does not affect validity, but does mean the mortgage does not appear on the encumbrance certificate. SARFAESI enforcement of a mortgage by deposit of title deeds is available to qualifying secured creditors.

Right of Redemption

Every mortgagor has a right to redeem the mortgage by paying the mortgage money at any time before the mortgage is extinguished by a court decree of foreclosure or by a valid sale under SARFAESI or court process. This right cannot be clogged or fettered by any condition in the mortgage deed. Any clause in the mortgage that purports to prevent or delay redemption beyond what the TPA permits is void. The limitation period for a suit to redeem a mortgage is 30 years from the date when the right to redeem accrues.

Lease of Immovable Property

Section 105 of the TPA defines a lease as a transfer of a right to enjoy immovable property for a specified time in consideration of a price paid or promised, or of money, share of crops, service, or any other thing of value. The person who transfers the right is the lessor. The person to whom it is transferred is the lessee.

Leases Requiring Registration

Under the Registration Act, 1908, a lease for a term exceeding one year must be by registered instrument. A lease for a year or less may be by oral agreement or unregistered writing. In practice, most commercial leases, even those for terms under a year, are documented in writing to avoid disputes about terms. An unregistered lease for a term exceeding one year is admissible in evidence only to show the commencement of a tenancy at will, not to enforce the specific terms.

Rights and Obligations

The lessor is bound to disclose material defects in the property, to put the lessee in possession, and to allow quiet enjoyment. The lessee is bound to pay the rent, to keep the property in the condition received, not to make permanent alterations without consent, and to give notice before vacating. On expiry of the lease, the lessee must deliver the property in the same condition as received, subject to fair wear and tear.

Determination of Lease and Forfeiture

A lease is determined by efflux of time, by surrender, by merger, by expiry of notice to quit, or by forfeiture. Forfeiture arises where the lessee breaches the conditions of the lease, including non-payment of rent, denial of the lessor's title, or permanent alienation of the property without consent. Before a court will enforce forfeiture, it considers whether the breach is capable of remedy and whether the lessee should be given an opportunity to remedy it.

Rent Control and Landlord-Tenant Disputes

Many residential and older commercial tenancies in Delhi and other cities are governed not only by the TPA but also by state rent control legislation, which gives tenants security of tenure and limits the rent that can be charged. Eviction of a protected tenant requires proof of specific statutory grounds, which vary by state. We advise landlords and tenants on the interaction between the TPA framework and the applicable rent control legislation in their state, and we appear in rent control tribunals and civil courts in eviction and arrears proceedings.

Gift and Exchange

Gift of Immovable Property

Section 122 of the TPA defines a gift as a transfer of ownership of existing movable or immovable property made voluntarily without consideration. A gift of immovable property must be accepted by or on behalf of the donee during the lifetime of the donor and while the donor is still capable of giving. A gift of immovable property must be made by a registered instrument signed by or on behalf of the donor and attested by two witnesses. An unregistered gift deed of immovable property is void. Under the Hindu Succession Act, 1956, gifts of ancestral property by a coparcener are restricted to their undivided share and require the consent of other coparceners in certain situations.

Exchange

An exchange under Section 118 of the TPA is a mutual transfer of ownership of one property for another, neither being money. Each party is simultaneously transferor and transferee. The rules applicable to sale apply to each party in their capacity as transferor. Exchange deeds are registered instruments attracting stamp duty on the higher value of the two properties exchanged.

Easements and Licences

The Indian Easements Act, 1882 governs the rights of owners of land to use the land of another for a specified purpose. Common easements include the right of way over another's land, the right of light and air from adjacent property, and the right of support. Easements can arise by grant, by prescription after 20 years of open and continuous use, by necessity, or by custom.

Easement disputes are among the most bitterly contested property disputes in urban areas, particularly in older neighbourhoods where properties have been subdivided and built over without formal documentation of access rights. We advise on the existence and enforceability of claimed easements and represent clients in suits for injunctions to prevent obstruction of easements and for declarations of easementary rights.

A licence, unlike an easement, does not create an interest in land. It is a personal permission that can be revoked. The distinction matters because a licensee evicted by the licensor has no right to remain, whereas an easement holder has a right enforceable against the owner and successors in title.

Title Suits, Partition, and Property Disputes

Title Suits

A title suit is a civil action to establish that the plaintiff is the owner of a property and to recover possession from a person in wrongful occupation. The burden of proof lies on the plaintiff to establish a better title than the defendant, not an absolute or perfect title. Courts look at the documents, the revenue records, the history of possession, and the conduct of the parties. The limitation period for a suit to recover possession of immovable property is 12 years from the date of dispossession.

Partition

Where immovable property is co-owned and the co-owners cannot agree on its management or use, any co-owner can sue for partition. The court divides the property in kind where possible, assigning each co-owner a defined portion. Where division in kind is not possible without significantly diminishing the value of the property, the court orders a sale and distribution of the proceeds. Partition suits in joint family property frequently involve questions of Hindu succession law alongside the TPA framework.

Injunctions in Property Disputes

Where a party is about to create a third-party interest in disputed property, construct a structure that would affect the other's rights, or deal with property in a way that would make a future decree futile, an urgent injunction application is the immediate legal response. Courts grant interim injunctions in property matters where the plaintiff establishes a prima facie case of right, balance of convenience in their favour, and irreparable harm if the injunction is refused. We file urgent injunction applications and appear at ex parte hearings in property disputes across the civil courts and High Courts.

RERA: Rights of Buyers Against Developers

The Real Estate (Regulation and Development) Act, 2016 created a dedicated regulatory and dispute resolution framework for real estate transactions. Every project above a prescribed size must be registered with the state RERA authority before launch. Developers must maintain 70 percent of amounts collected from buyers in a dedicated escrow account to ensure project completion. The developer cannot alter the plans or specifications without the written consent of at least two-thirds of the allottees.

Buyer Remedies Under RERA

A buyer whose developer has delayed possession, failed to deliver the agreed specifications, or refused to execute a registered sale agreement can file a complaint before the RERA authority. The authority can order refund of amounts paid with interest at the prescribed rate, compensation for the delay, and in some cases cancellation of the allotment. Complaints before RERA are resolved faster than civil court suits and the interest rates awarded on delayed refunds are significant.

RERA and Concurrent Court Proceedings

RERA does not bar a buyer from also pursuing remedies under the Consumer Protection Act, 2019 for deficiency of service, or from filing a civil suit for specific performance of the agreement. The choice of forum depends on the nature of the relief sought and the stage of the project. We advise buyers on the most effective combination of remedies in their specific situation and pursue them in parallel where that produces the best outcome.

Why Diwan Advocates for Property Law?

Legislative Reference Index

Property disputes are among the longest and most consequential a person will face.

Getting the legal advice right at the beginning costs far less than fixing it later.

Diwan Advocates gets it right from the start.

Diwan Advocates  |  Delhi, India

Diwan Advocates

Private Equity Practice

A foreign fund acquires a controlling stake in an Indian company through a Mauritius SPV. The transaction closes. Eighteen months later, the tax authority raises a demand under GAAR, treating the structure as lacking commercial substance. The fund had not obtained an advance ruling.

A promoter signs a shareholders’ agreement with a PE fund. Three years in, the fund invokes the put option. The promoter refuses to perform. The agreement has an arbitration clause but is silent on whether the option is enforceable as specific relief.

Private equity in India operates across company law, securities regulation, foreign investment rules, taxation, and contract enforcement. Each layer creates risk. At Diwan Advocates, we advise funds, portfolio companies, and promoters across the full investment cycle.

What We Do

Our private equity practice spans deal structuring and documentation, regulatory approvals, and dispute resolution. We act for domestic and offshore funds, investee companies, promoters, and management teams.

Transaction Structuring and Documentation

We structure PE investments from entry to exit, advising on choice of instrument (equity, compulsorily convertible debentures, optionally convertible instruments), entry route (FDI, FPI, or FVCI), and holding structure. We draft and negotiate term sheets, shareholders’ agreements, subscription agreements, and ancillary documents. Key provisions in PE agreements require particular care: anti-dilution rights, liquidation preferences, information and inspection rights, affirmative vote matters, drag-along and tag-along rights, and put and call options. Each of these has enforceability dimensions under Indian law that differ from offshore market practice.

Foreign Investment and Regulatory Approvals

Foreign investment in Indian companies is governed by the Foreign Exchange Management Act, 1999 and the rules and regulations made under it, principally the Foreign Exchange Management (Non-Debt Instruments) Rules, 2019. Sectoral caps, prohibited sectors, pricing guidelines for issue and transfer of shares, and downstream investment conditions all apply. Government approval is required in certain sectors and for investments from land-border countries. FVCIs investing in eligible sectors receive a more flexible regulatory treatment. We advise on structuring to comply with FEMA and obtain requisite approvals, and on downstream restructuring where portfolio companies have their own foreign investment requirements.

Tax Structuring and GAAR

Tax is a primary driver of PE structure. Capital gains on exit, withholding obligations on dividends and interest, treaty eligibility, and indirect transfer taxation under the Income Tax Act, 1961 all require advice before the structure is finalised. The General Anti-Avoidance Rule allows the tax authority to recharacterise or disregard arrangements that lack commercial substance. Structures relying on treaty benefits are also subject to the Principal Purpose Test under India’s tax treaties post-BEPS. We advise on defensible structures, advance rulings before the Board for Advance Rulings, and representation before the Income Tax Appellate Tribunal and higher courts where assessments are challenged.

Corporate Governance and the Companies Act

PE investments in Indian companies sit inside the framework of the Companies Act, 2013. Board composition, related party transaction approvals, restrictions on financial assistance, buy-back regulations, and the rights of minority shareholders are all governed by the Act. Shareholder rights negotiated in the SHA must be consistent with the Act and the articles of association; provisions that conflict with mandatory statutory requirements are unenforceable. We advise on aligning SHA protections with company law, and on oppression and mismanagement proceedings before the NCLT where the relationship between a fund and a promoter breaks down.

Exits: IPO, Secondary Sale, and Strategic Sale

Exit is where PE returns are realised and where legal risk concentrates. An IPO exit involves lock-in periods, offer for sale mechanics, and pre-IPO disclosure obligations under the SEBI (Issue of Capital and Disclosure Requirements) Regulations, 2018. A secondary sale to another fund triggers FEMA pricing rules and, if the target is listed, potential insider trading exposure. A strategic sale to a competitor may require Competition Commission of India approval under the Competition Act, 2002. We advise on exit planning from the time of entry and manage each exit route as it develops.

Disputes and Enforcement

PE disputes in India arise between funds and promoters, between co-investors, and between funds and portfolio company management. The most common flashpoints are option exercise and refusal to perform, breach of affirmative vote rights, information right denials, and deadlock. Most PE agreements provide for arbitration. Where the seat is India, the Arbitration and Conciliation Act, 1996 governs the proceeding and any challenge to the award. Where the seat is offshore, enforcement in India requires an application under Part II of the Act. Interim relief in support of arbitration, including injunctions against share transfers or asset dissipation, is available from Indian courts under Section 9. We represent funds and promoters in arbitration, and in related proceedings before the High Court and the NCLT.

Why Diwan Advocates for Private Equity?

Legislative Reference Index

PE transactions are built on tight timelines. Disputes do not announce themselves in advance.

Diwan Advocates is ready.

Diwan Advocates  |  Delhi, India

Diwan Advocates

Partnership and Specific Relief Practice

Two partners run a firm for fifteen years. One begins diverting clients and refuses to render accounts. The other wants dissolution and a true account of what has been taken. The partnership deed is silent on many of the questions that now matter most.

A buyer signs an agreement to purchase land for a specific price. The seller, finding a better offer, refuses to complete. The buyer wants the land, not damages. Whether the court will compel the seller to perform depends on the nature of the property and the conduct of both parties.

Partnership disputes and specific relief claims are among the most fact-intensive matters in Indian civil litigation. At Diwan Advocates, we advise and represent clients across both before trial courts, high courts, and in arbitration.

The Indian Partnership Act, 1932

The Indian Partnership Act, 1932 governs the relationship between partners, the firm’s liability to third parties, and the rights of partners against each other and against the firm. A partnership is defined as the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all. Registration of a firm is optional but unregistered firms cannot sue to enforce rights arising from the partnership contract or to claim a set-off in certain proceedings.

Rights and Duties of Partners

Partners owe each other duties of good faith and are bound to render true accounts and full information. Each partner is an agent of the firm and of the other partners for acts done in the ordinary course of the firm’s business. Partners are jointly and severally liable for the firm’s wrongful acts and jointly liable for its contractual debts. A partner who competes with the firm, diverts its business, or misapplies its assets is accountable to the other partners. The Act provides default rules on profit sharing, interest on capital, and remuneration, all of which the partnership deed may modify.

Dissolution and Winding Up

Dissolution may occur by agreement, expiry of term, completion of the venture for which the partnership was formed, death or insolvency of a partner, or by court order. The court may dissolve a firm on grounds including a partner’s misconduct affecting the business, persistent breach of the partnership agreement, or where it is just and equitable to do so. On dissolution, the assets are applied first to discharge liabilities to third parties, then to repay partners’ advances and capital. A partner who has been wrongfully excluded has a right to accounts and a share of profits accruing after dissolution.

Partnership Disputes in Practice

Partnership disputes commonly involve disputes over the existence or terms of the partnership, allegations of diversion of firm business, disputes over accounts and profit share, claims of wrongful expulsion, and deadlock on dissolution. Suits for accounts, dissolution, and rendition of accounts lie before the civil court. Where the deed provides for arbitration, disputes go to the tribunal, though courts retain jurisdiction to appoint receivers and grant interim injunctions. We advise on partnership documentation, represent parties in pre-litigation strategy, and conduct proceedings before trial courts and high courts.

The Specific Relief Act, 1963

The Specific Relief Act, 1963 provides remedies where monetary compensation is an inadequate substitute for what was promised. The 2018 amendments significantly changed the landscape: specific performance of contracts for construction and immovable property is now ordinarily granted as a matter of course, removing the discretion the court previously had to substitute damages. The Act also governs the recovery of possession of movable and immovable property, rectification and cancellation of instruments, and declaratory relief.

Specific Performance

A court will grant specific performance of a contract where the plaintiff is ready and willing to perform their own obligations and the defendant has failed or refused to perform theirs. Post the 2018 amendment, specific performance is the rule rather than the exception for contracts involving immovable property: the court must grant it unless doing so would be impossible, inequitable, or contrary to public policy. The plaintiff must have been ready and willing from the date of the contract and must approach the court within the limitation period. Delay and acquiescence remain relevant to the court’s exercise of discretion on ancillary matters even after the amendment.

Injunctions

The Act provides for perpetual and temporary injunctions. A temporary injunction is granted where the plaintiff establishes a prima facie case, demonstrates that the balance of convenience favours the grant, and shows that non-grant would cause irreparable harm. A mandatory injunction compelling a party to do a positive act is granted only where the court is satisfied that the harm from non-performance would be such that compensation in money is not an adequate remedy. The Act expressly prohibits injunctions to restrain a party from prosecuting a judicial proceeding and to prevent a breach of contract where monetary damages would suffice.

Rectification and Cancellation of Instruments

Where a written contract or instrument does not reflect the true intention of the parties due to fraud or mutual mistake, the court may order rectification. Where an instrument is void or voidable, and a party reasonably apprehends that it may cause serious injury if left outstanding, the court may order its cancellation or delivery up for cancellation. These remedies are particularly relevant in property transactions where sale deeds, mortgages, or conveyances have been executed under misrepresentation or by mistake.

Why Diwan Advocates?

Legislative Reference Index

Partnership disputes and specific relief claims move on the facts. The time to act is before the limitation period expires.

Diwan Advocates is ready.

Diwan Advocates  |  Delhi, India