Diwan Advocates

Pharmaceutical Law Practice

Every pill that reaches a patient in India has passed through one of the world's most complex regulatory journeys. A molecule discovered in a laboratory must survive clinical trials, satisfy the Central Drugs Standard Control Organisation, navigate price controls, survive patent challenges, clear customs, and find its way through a distribution chain that stretches across hundreds of thousands of pharmacies. That is before it faces competition from generic manufacturers, scrutiny from SEBI if the company is listed, and the possibility of a product liability claim if something goes wrong.

India is not a minor player in this story. It is the pharmacy of the world. The country supplies over sixty percent of global vaccine demand, accounts for twenty percent of global generic exports by volume, and is home to more US FDA-approved manufacturing facilities outside the United States than any other country. The legal framework that governs this industry touches every aspect of a pharmaceutical company's existence, from the moment a drug is discovered to the moment it is discontinued.

At Diwan Advocates, we have built a pharmaceutical law practice that understands both the industry and the law. We advise manufacturers, importers, distributors, contract research organisations, hospital groups, and international pharmaceutical companies on the full range of legal issues that arise across the drug lifecycle. Our work covers regulatory compliance, licensing, intellectual property, price control disputes, clinical trial governance, product liability, and criminal enforcement under the Drugs and Cosmetics Act.

The legal issues in this sector never arise in isolation. A dispute over a drug patent under the Patents Act, 1970 will be shaped by the regulatory data generated during the approval process under the New Drugs and Clinical Trials Rules, 2019. A price control challenge under the Drugs Prices Control Order, 2013 will depend on data that the company has reported to CDSCO and NPPA. A criminal prosecution under the Drugs and Cosmetics Act can trigger securities disclosure obligations if the company is listed on a stock exchange. We connect these threads so that our clients are protected across all of them.

Drug Regulatory Approvals and Licensing

Getting a drug to market in India requires a series of regulatory approvals that must be obtained in the right sequence and maintained through ongoing compliance. A misstep at any stage can delay a product launch by years or result in the cancellation of a licence that has taken considerable time and investment to obtain.

New Drug Approvals and CDSCO

The Central Drugs Standard Control Organisation (CDSCO) is the national regulatory authority responsible for approval of new drugs, clinical trial authorisations, and import licences. The approval pathway for a new drug or new molecular entity is governed by the New Drugs and Clinical Trials Rules, 2019 which introduced a more structured framework for submission, expert committee review, and approval timelines. We assist applicants in preparing dossiers, responding to CDSCO queries, and representing clients before the Subject Expert Committees and the Drug Controller General of India.

India introduced an accelerated approval pathway for drugs that have already received regulatory approval in reference jurisdictions such as the US, EU, UK, Japan, and Australia. Navigating this pathway requires a precise understanding of which data requirements can be waived and what post-approval commitments the applicant must make. We advise originator and generic companies on this pathway and handle the legal aspects of expedited submissions.

Manufacturing Licences and GMP Compliance

Every pharmaceutical manufacturer in India must hold a valid manufacturing licence issued by the State Licensing Authority under Schedule M of the Drugs and Cosmetics Rules, 1945. Schedule M prescribes the Good Manufacturing Practice standards that facilities must comply with, and has been substantially revised to align with WHO-GMP guidelines. Licence suspension, cancellation, and regulatory action by drug inspectors are governed by Sections 22 to 33 of the Drugs and Cosmetics Act, 1940. We advise manufacturers on maintaining GMP compliance, represent them during inspections, and defend licence suspension and cancellation proceedings before licensing authorities and in writ proceedings before High Courts.

Import and Export Licences

Importing drugs and active pharmaceutical ingredients into India requires a separate import licence from CDSCO. Exports of pharmaceuticals are governed by the Foreign Trade (Development and Regulation) Act, 1992 and the Export and Import Policy, as well as destination country regulatory requirements. We advise importers and exporters on licence applications, restricted and prohibited items, documentation requirements, and customs classification disputes that arise at Indian ports and border checkpoints.

Clinical Trials and Research Governance

India is one of the most significant destinations globally for clinical research, offering a large and genetically diverse patient population, cost efficiencies, and a framework of qualified investigators and research institutions. The legal framework governing clinical trials is set out in the New Drugs and Clinical Trials Rules, 2019, which introduced significant reforms following the controversy over clinical trial deaths and compensation disputes in the earlier part of this decade.

Trial Authorisation and Ethics Committee Oversight

A clinical trial can only begin after CDSCO issues a trial authorisation and an independent Ethics Committee registered with CDSCO approves the trial protocol. We advise sponsors, contract research organisations, and investigator sites on preparing CDSCO submissions, responding to queries during the review process, and structuring the contractual framework between sponsors, CROs, and sites in a way that is consistent with the regulatory requirements and manages liability appropriately.

Informed Consent and Participant Rights

Informed consent requirements under the 2019 Rules are detailed and specific. Audio-visual recording of the consent process is mandatory for certain categories of trial. Compensation for trial-related injury or death must be offered and calculated according to a prescribed formula. We advise on the documentation requirements for valid informed consent, the liability of sponsors and investigators when consent is alleged to be defective, and the compensation framework for trial-related adverse events.

Bioequivalence Studies and Generic Drug Approval

Generic drugs approved in India must demonstrate bioequivalence to the reference listed drug through studies conducted at CDSCO-approved bioequivalence study centres. The standards for study design, statistical analysis, and data integrity have been tightened significantly in recent years following instances of data manipulation at certain facilities. We advise generic manufacturers on the regulatory requirements for BE studies, represent them in disputes with CDSCO over study acceptability, and handle the legal aspects of partnerships with approved BE centres.

Pharmaceutical Patents and Intellectual Property

India's patent framework for pharmaceuticals is shaped by Section 3(d) of the Patents Act, 1970, one of the most distinctive and debated provisions in global pharmaceutical patent law. Section 3(d) prevents the grant of patents for new forms of known substances unless they demonstrate significantly enhanced efficacy. This provision has been central to India's position as a supplier of affordable generics and has been extensively litigated, including the landmark Supreme Court judgment in Novartis AG v. Union of India (2013).

Patent Prosecution and Portfolio Strategy

We assist pharmaceutical companies in prosecuting patent applications before the Indian Patent Office, advising on claim drafting strategies that navigate Section 3(d), responding to examination reports and objections, and building patent portfolios that protect the full range of a company's innovations including compounds, formulations, dosage forms, manufacturing processes, and delivery systems.

Patent Oppositions and Invalidity Challenges

The Patents Act provides for pre-grant opposition by any person and post-grant opposition by an interested person. Generic manufacturers frequently file pre-grant oppositions against originator drug patents on the ground that the invention does not satisfy the Section 3(d) threshold or lacks novelty and inventive step. We represent both originators defending their patents and generic companies challenging them, before the Patent Office, the Intellectual Property Appellate Board's successor jurisdiction, and in High Court proceedings.

Compulsory Licensing

Section 84 of the Patents Act allows any person to apply for a compulsory licence three years after the grant of a patent if the patented invention is not available to the public at reasonably affordable prices, or is not worked in India to an adequate extent. India's only compulsory licence to date was granted by the Patent Office in Natco Pharma v. Bayer (2012) for the anti-cancer drug sorafenib. We advise companies seeking compulsory licences and those defending against such applications on the legal standards applicable and the strategic considerations involved.

Drug Price Control and NPPA Proceedings

The Drugs Prices Control Order, 2013 issued under the Essential Commodities Act, 1955 is administered by the National Pharmaceutical Pricing Authority (NPPA). The DPCO fixes ceiling prices for scheduled formulations, which are those listed in the National List of Essential Medicines, and monitors the prices of non-scheduled drugs to prevent extraordinary price increases.

Ceiling Price Compliance and Audit

Pharmaceutical companies that manufacture or sell scheduled formulations must ensure that their prices do not exceed the ceiling prices notified by NPPA. The pricing calculations involve the market-based methodology prescribed by the DPCO and require careful tracking of price filings, depot price changes, and the handling of pack size variations. We advise companies on DPCO compliance programmes, review price filings for legal risk, and represent companies in proceedings before NPPA for price revisions, exemptions, or corrections to ceiling price calculations.

Overpricing Demands and Recovery Proceedings

When NPPA determines that a company has sold a drug above the applicable ceiling price, it issues a demand for the overcharged amount plus interest. These demands can cover multiple years of sales and reach substantial amounts. A company that fails to deposit the demand within the prescribed period faces the possibility of criminal prosecution under the Essential Commodities Act. We represent companies challenging NPPA demand notices before the High Courts on grounds including incorrect ceiling price computation, wrong identification of the applicable schedule entry, and errors in the period of overcharging alleged.

Trade Margins and Distribution Chain Pricing

The DPCO framework regulates not just manufacturer prices but also the margins available to stockists and retailers. Trade margin capping, which has been applied to non-scheduled drugs through government orders, is a particularly active area where the legal basis and implementation methodology have been challenged by trade associations and manufacturers. We advise on the legal framework for trade margin orders and represent clients before the NPPA and in writ proceedings.

Medical Devices Regulation

Medical devices were brought under the Drugs and Cosmetics Act framework and are now primarily governed by the Medical Device Rules, 2017. The scope of the MDR has been progressively expanded, and all medical devices are now required to be registered with CDSCO under a phased timeline. Class A and B devices follow a simplified registration pathway, while Class C and D devices require full pre-market approval including clinical data.

We advise medical device manufacturers and importers on device classification, registration requirements, quality management system compliance, and clinical investigation regulations. The boundaries between drugs, medical devices, and combination products are often unclear, and the classification of a product can have significant regulatory and commercial consequences. We advise on product classification disputes and represent clients challenging incorrect classification decisions before CDSCO.

Product Liability and Adverse Drug Events

A defective drug or medical device can cause serious harm. When it does, the manufacturer, importer, and distributor face potential liability under the Consumer Protection Act, 2019, civil suits for negligence and product liability, and in serious cases, criminal prosecution under the Drugs and Cosmetics Act, 1940. The Consumer Protection Act, 2019 introduced a product liability chapter that imposes strict liability on manufacturers for defective products and on service providers for deficient services, which includes hospitals and pharmacies.

Drug Recalls and Market Withdrawals

When a quality defect or safety signal is identified in a marketed drug, the company must act quickly to assess the scope of the problem, notify CDSCO, and initiate a voluntary recall if required. Mishandling a recall situation, whether by delay, incomplete execution, or inadequate communication, significantly increases both regulatory and legal exposure. We advise companies on recall procedures, CDSCO notification obligations, communication with the trade and with patients, and the documentation required to demonstrate that the recall was conducted competently.

Pharmacovigilance and Safety Reporting

Pharmaceutical companies are required to maintain pharmacovigilance systems and report adverse drug reactions to the Indian Pharmacopoeia Commission's Pharmacovigilance Programme of India and to CDSCO. Failures in safety reporting are a common ground for regulatory action. We advise companies on structuring their pharmacovigilance obligations, conducting internal audits of safety reporting systems, and responding to CDSCO queries about adverse event reporting gaps.

Enforcement, Inspections, and Criminal Prosecution

The Drugs and Cosmetics Act, 1940 creates offences for the manufacture, sale, or distribution of adulterated drugs, spurious drugs, misbranded drugs, and drugs that do not comply with prescribed standards. Penalties range from fines to imprisonment of up to life in cases involving adulterated drugs that cause death or grievous hurt. Drug inspectors have wide powers of inspection, sampling, and seizure, and state drug controllers and CDSCO can initiate prosecution.

We represent pharmaceutical companies, directors, and responsible persons facing drug inspector actions, show-cause notices, licence suspension proceedings, and criminal prosecutions under the D&C Act. Defending a prosecution under this Act requires a combination of scientific knowledge about drug quality standards, procedural expertise in criminal defence, and an understanding of the licensing framework within which the company operates. Our team brings all three together.

Directors and officers of pharmaceutical companies can face personal criminal liability if they were in charge of the company's affairs at the time the offence was committed. We advise on the conditions under which personal liability arises, the defences available to individuals who were not directly involved in the default, and the steps that companies should take to ensure that compliance frameworks reduce the risk of personal criminal exposure.

Competition Law in the Pharmaceutical Sector

The Competition Commission of India has paid particular attention to the pharmaceutical sector in recent years. Issues that have attracted CCI scrutiny include excessive pricing of patented drugs, refusal by originators to license patents to generic manufacturers, exclusive dealing arrangements between pharmaceutical companies and distributors, and alleged cartel behaviour in the supply of hospital medicines. We advise pharmaceutical companies on competition compliance and represent them in CCI investigations under the Competition Act, 2002.

The interface between patent law and competition law is particularly live in the pharmaceutical sector. An originator that uses patent enforcement to block generic entry may face not only a challenge under the Patents Act but also an allegation of abuse of dominant position under the Competition Act. We advise on navigating both frameworks and on the extent to which legitimate patent enforcement can be distinguished from anti-competitive conduct.

Why Diwan Advocates for Pharmaceutical Law?

Legislative Reference Index

The following table consolidates the principal statutes and regulatory frameworks that govern India's pharmaceutical sector, with notes on their relevance to legal practice in this industry.

India's pharmaceutical industry carries the weight of global health access on its shoulders.

The legal framework that governs it is complex, consequential, and constantly evolving.

Diwan Advocates is here to help clients navigate it with confidence.

Diwan Advocates  |  Delhi, India

Diwan Advocates

Taxation Law Practice

In the high-stakes arena of Indian tax law, Diwan Advocates serves as your strategic partner, empowering corporations, SMEs, individuals, and high-net-worth clients to navigate direct and indirect taxes with confidence. From visionary planning and rigorous compliance to audit defence, appellate proceedings, and courtroom advocacy, we transform fiscal complexity into competitive advantage across India's ever-evolving regulatory landscape.

Our practice is anchored in a deep understanding of the Income Tax Act, 1961, the GST regime, the Customs Act, and recent reforms under Budget 2026, including enhanced compliance mechanisms, simplified dispute resolution pathways, and updated thresholds for deductions and exemptions. We integrate proactive advisory foresight with robust litigation capability, keeping clients ahead of legislative change, judicial precedent, and enforcement trends across multiple jurisdictions.

Direct and Indirect Taxation Services

Direct Tax Advisory

Our direct tax practice provides end-to-end support across the full spectrum of income tax matters. We advise on sophisticated planning and transaction structuring, covering capital gains realisations, business reorganisations, and international operations. Our team conducts transfer pricing studies with comprehensive documentation, manages return preparation and filing, and represents clients during scrutiny assessments and reassessments. We also provide specialist guidance on complex provisions including Place of Effective Management (POEM), General Anti-Avoidance Rules (GAAR), and 2026 exemptions applicable to startups, family offices, and green investments.

Indirect Tax and GST Compliance

For indirect taxes, we manage GST registration across states, periodic return filings, refund claims, including those arising from inverted duty structures, and detailed compliance audits to ensure seamless operations. Our expertise extends to input tax credit optimisation through supply chain restructuring, customs duty assessments for imports and exports, anti-dumping investigations, and strategic trade policy advice under India's Free Trade Agreements. When disputes arise, we provide litigation support before GST authorities, CESTAT, High Courts, and specialised benches.

Dispute Resolution and Litigation

We represent clients across the entire tax dispute lifecycle, from initial assessments and show-cause notices through to appeals before the Income Tax Appellate Tribunal (ITAT), High Courts, the Supreme Court, and the GST Appellate Authority. Our work includes filing writ petitions to challenge arbitrary notices, disproportionate penalties, unlawful demands, and unconstitutional provisions, with a consistent focus on securing interim stays that protect client cash flows during proceedings.

Our approach combines meticulous record reconstruction, forensic transaction analysis, and precedent-driven legal arguments with practical settlement strategies, including advance rulings, rectification applications, and mediation under the 2026 faceless dispute resolution scheme. Whether defending against evasion allegations or pursuing the correction of appellate orders, we prioritise commercially viable outcomes that minimise litigation timelines and associated costs.

Transaction Support and Risk Management

For M&A transactions, private equity investments, project financing, and cross-border deals, we conduct thorough tax due diligence to surface contingent liabilities, transfer pricing exposures, and value optimisation opportunities. We structure transactions to maximise available incentives under central schemes, including Vivad se Vishwas, as well as state-level policies for SEZs, manufacturing hubs, and renewable energy projects.

Our cross-border practice analyses Double Tax Avoidance Agreements (DTAAs), permanent establishment risks, withholding tax compliance, and Mutual Agreement Procedure / Advance Pricing Agreement (MAP/APA) proceedings with foreign tax authorities.

Beyond individual transactions, we implement enterprise-wide compliance frameworks encompassing internal audits, peer benchmarking, and representations before tax officers during surveys or investigations. In the post-2026 era of digital tracking and AI-driven enforcement, we help clients adopt technology-enabled reporting, predictive risk modelling, and proactive policy advocacy to remain ahead of regulatory priorities.

Why Diwan Advocates for Taxation?

Diwan Advocates crafts tax strategies that safeguard assets, enhance efficiency,

and position clients for sustainable growth in a dynamic regulatory environment.

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.

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Diwan Advocates  |  Delhi, India