India

Introduction: In a recent judgement, the High Court of Karnataka (High Court), in Deputy Director, Directorate of Enforcement v. Asadullah Khan & Others[1], examined the intersection between the Prevention of Money Laundering Act, 2002 (PMLA) and the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI). The Appeals filed under Section 42 of the PMLA, assailed an order of the Appellate Tribunal, PMLA whereby attachment orders passed by the ED were set aside. The ruling of the High Court provides crucial clarity on the rights of secured creditors and the scope of attachment under the PMLA, particularly when bank funds, not illicit proceeds, form the source of property acquisition. The main issue was whether properties mortgaged to a bank, which had itself suffered losses due to fraudulent loan disbursals, could be subjected to attachment under the PMLA & consequently, whether the immovable properties mortgaged to a bank as a security for loans, could be treated as “proceeds of crime” under Section 2(u) of the PMLA. Brief facts of the case: The Central Bureau of Investigation (CBI) initiated a criminal investigation in 2009, against the officials of the Syndicate Bank and certain borrowers for offences under Section 120B, 409, 420, 467 and 471 of the Indian Penal Code and under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (PC Act). The allegations related to irregular sanctioning of loans in violation of banking norms, causing a loss of over Rs. 12,63,65,120/- to the Bank. Based on the predicate offence, the Enforcement Directorate registered a case under the PMLA and provisionally attached seven properties mortgaged to the Bank as security. The Appellate Tribunal (PMLA), New Delhi, by order dated 18.09.2017, set aside the attachment, holding that the mortgaged properties were not proceeds of crime. The ED thereafter preferred four Miscellaneous Second Appeals before the Karnataka High Court under Section 42 of the PMLA. Background about ‘Proceeds of Crime’ (PoC): The concept of “PoC” is central to PMLA. Under Section 2(1)(u) of PMLA, it refers to any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence. Section 5(1) of the PMLA empowers the ED to attach such properties and Section 8 of the PMLA prescribes the adjudication process, requiring the Adjudicating Authority to issue notice to the persons claiming interest in the property. Pertinently, the provisos to Section 8(1) and 8(2) mandate that any person holding interest in the attached property must heard before the confirmation of attachment. On the other hand, under the SARFAESI Act, a secured creditor, is empowered under Sections 13(2) and 13(4) to enforce its security interest without the intervention of courts. The statute ensures priority of repayment of debts out of secured assets. Both PMLA & SARFAESI aim to protect the financial system, by preventing money laundering, and by enabling recovery of legitimate loans, respectively. The High Court made it clear that the properties mortgaged as security for the loans were part of legitimate banking transactions and were not acquired out of any PoC. Even though the securities were insufficient to cover the losses, they did not qualify as “PoC” under Section 2(u) of PMLA. Therefore, ED had no authority to treat these mortgaged assets as tainted property or to confiscate them under the Act. The PMLA targets property derived from tainted sources, not property obtained from lawful funds that are misused later. Where the origin of money is traceable to legal banking channels, such as loans from regulated financial institutions, the property created therefrom does not lose its legitimate character unless it can be shown that the loan itself was obtained as part of the criminal conspiracy. This distinction becomes particularly significant in situations where loans were sanctioned in an improper manner, even though the money advanced came from the bank’s legitimate resources. Findings of the Court: The High Court held that the mortgaged properties could not be treated as PoC since the loans advanced by the Bank were sourced from legitimate funds of the Bank. The Court emphasised that the Bank was the victim of the fraud perpetrated by its officials and borrowers and not a participant in the criminal conspiracy. Therefore, the assets mortgaged to it could not be said to have been “derived or obtained” from any criminal activity. The Court further noted that the Adjudicating Authority had failed to comply with the mandatory requirement of issuing notice to the Bank, despite being aware that the properties in question were mortgaged to it. This omission according to the Court violated the principles of natural justice as well as the express provisions of the PMLA. Further, the Court observed that allowing attachment to continue would effectively defeat the Bank’s right as a secured creditor to recover dues under the SARFAESI Act. The purpose of the PMLA is to trace and confiscate illicit proceeds, not to impede lawful recovery of public funds. Since the Bank had already taken possession of the properties and initiated SARFAESI proceedings, the ED’s attachment could not override those rights. A similar view was taken by the Delhi High Court in The Deputy Director, Directorate of Enforcement v. Axis Bank & Ors[2]. The Court made it clear that properties acquired through ordinary banking channels cannot be labelled as “proceeds of crime” merely because the borrower or certain bank officials later faced allegations in a scheduled offence. It also emphasised that the rights of secured creditors under the SARFAESI Act cannot be pushed aside by an attachment under the PMLA unless there is a definite and proven connection between the attached property and the alleged criminal activity. This approach mirrors the position adopted in the present case, reinforcing the principle that assets funded through legitimate loans remain lawful unless the loan itself is shown to be part of the wrongdoing. Accordingly, the Court held that the Appellate Tribunal’s order confirming the order of Adjudicating Authority was legally sound. The appeals filed by the ED were accordingly, dismissed. Conclusion: According to the authors the High court has rightly found the balance between the powers of the enforcement authorities and the rights of financial institutions. The law (PMLA) serves a national purpose, but it must be restricted to (a) property intricately connected with crime and or (b) property which is acquired by PoC. To extend coverage to any assets acquired with the benefit of any credit transaction would stretch the definition of the term "proceeds of crime" too far and erode public confidence in the banking system. The reasoning of the Court was that in such cases the banks, who are trustees of public money and are victims of cheating in their credit business, should not be penalized especially when that have proceeded to recover their dues under the SARFAESI Act. This decision will reinforce the principle that anti-money laundering tools should be used proportionately, fairly and with respect for the letter and spirit of the statutory framework. The judgment is a step further in the articulation of the idea that justice in financial crime is not achieved by the widest use of power, but by its most disciplined and reasoned application. Authors: Mr. Ishwar Ahuja (Partner) Shilpa Gireesha (Associate) [1] MSA No. 78, 87, 88, 89 of 2020 [2] (2019) 3 SC C 571

The Ministry of Labour and Employment, Government of India (“Ministry”) pursuant to the press release dated 21 November 2025 (“Press Release”) has implemented 4 (four) labour codes, namely, (i) the Code on Wages, 2019 (“Wage Code”), (ii) the Industrial Relations Code, 2020 (“Industrial Relations Code”), (iii) the Code on Social Security, 2020 (“Social Security Code”), and (iv) the Occupational Safety, Health and Working Conditions Code, 2020 (“Health and Safety Code”) (collectively “Labour Codes”) with immediate effect. As per the Press Release, the Labour Codes are intended to keep pace with changing economic realities, evolving forms of employment and are aimed at reducing the compliance burden on both workers and industry thereby improving overall ease of doing business in India. In this Part I of the labour law series of Nota Bene, we have discussed few key changes proposed by the Labour Codes and provided few practical tips for corporates to take note of. Keep an eye out for our upcoming publications in this series, discussing the nuances and inter-disciplinary impact of the Labour Codes in detail. Status of Old Labour Laws The Labour Codes are part of the Concurrent List of the Constitution of India, which allows both the Central and the State Governments to legislate on the employment matters. The Labour Codes have replaced all 29 existing labour laws (except the Employees Provident Fund and Miscellaneous Provisions Act, 1952) (“Old Labour Laws”) as set forth in Annexure with effect from 21 November 2025. However, the Ministry and / or State Governments are yet to notify rules / regulations under the Labour Codes. The Ministry in the Press Release has clarified that during the transition, relevant provisions of the Old Labour Laws and their respective rules, notifications, etc. will continue to remain in force. Therefore, prima facie it appears that the applicable provisions of Old Labour Laws and rules / regulations thereunder will continue to apply. We expect the Ministry will issue further clarification to help the industry participants to navigate migration to the Labour Codes. Critical Changes Introduced by Labour Codes Standardisation of Definition of Wages: The Labour Codes introduce a uniform and wider definition of wages to ensure consistency in calculating salaries, social security, and other benefits. The definition of wages now prescribes a ceiling of 50% on exclusions, i.e. if the specified exclusions exceed the ceiling, such components will then be included in the wages for computation of relevant social security benefits. Hence, companies will now have to rework their salary structures to comply with the statutory “wage” definition. Gratuity for Fixed Term Employee: The fixed term employment (“FTE”) was introduced through Industrial Employment (Standing Orders) Central (Amendment) Rules, 2018 which stated that the FTE will be eligible for all statutory benefits available to a permanent workman on a proportionate basis. However, amendments to the Payment of Gratuity Act, 1972 (Gratuity Act) were not hitherto notified. Now, the Social Security Code has repealed the Gratuity Act and mandated that all FTE(s) will be eligible for gratuity if they complete 1 (one) year of continuous service. Therefore, employers will now have to start provisioning for gratuity of FTE(s) in case they have FTE on the payrolls. Increased Coverage for Minimum Wage: In the earlier regime, minimum wages were notified by state governments region-wise and applied only to scheduled employments. Under the Wage Code, minimum wages will now not just apply to scheduled employment but to all sectors – whether organised or unorganised. A new concept of floor wage (i.e baseline wage) has been introduced which will be notified by the Central Government. Hence, once the notification is released, employers in all sectors will have to conduct internal review and ensure that their salary structure is aligned with minimum wages requirements. Strict Timeframes for Payment of Salaries and Full and Final Settlement: Earlier the applicability of time period for payment of wages was limited to ‘workers’ in factories and specified establishments covered under the Payment of Wages Act, 1936 (“PWA”). Further, such payment time period differed on the basis of number of workers engaged. Now, under the Wage Code, the coverage has been widened, thereby mandating all employers to pay wages to their employee within the 7th day of every month, irrespective of the size of the establishment. Further, where an employee is removed/ dismissed from service/ retrenched/ resigned, the wages payable to him shall be paid within 2 (two) working days of his cessation of employment. Hence, organisations, irrespective of sector have to update their payroll management systems to ensure that not only salaries are paid on time but full and final settlement is also undertaken within 2 (two) working days to avoid any potential disputes and implications of non-compliance. Engagement of Contract Labours: The Health and Safety Code expressly prohibits engagement of contract workers in core activities, i.e., any activity for which the establishment is set up or any activity which is essential or necessary to such activity. Earlier, pursuant to Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970, the state governments had the discretion to notify areas where employment of contract labour was prohibited. States like Andhra Pradesh and Telangana had notified list of such core areas. However, this has now been incorporated in the Wage Code itself, thereby providing a pan-India coverage. Therefore, internal checks have to be conducted to align workforce between core and no-core activities of the company to ensure that contractual workers are not engaged in core activities. Revised Threshold for Applicability of Retrenchment Provisions: Under the Industrial Relations Code the threshold for applicability of retrenchment and layoff provisions has been revised. In the erstwhile Industrial Disputes Act, 1947 (“ID Act”), industries covered under Chapter VB (i.e employing more than 100 workers) required prior approval of appropriate government for undertaking retrenchment or layoff. This threshold for provisions of Chapter VB of ID Act (which corresponds to Chapter X of the Industrial Relations Code) has been revised instead of leaving it up to the discretion of the States. Hence, industrial establishments employing up to 300 (three hundred) workers are now exempt from seeking prior government approval for retrenchment or closure of establishment. Increased Coverage for Employees State Insurance: Earlier, applicability of employees’ state insurance (ESI) was limited to the areas where the scheme was notified by the appropriate government, i.e. notified areas. The concept of notified areas has been removed now, and all the sectors, across India, will have to contribute to employees’ state insurance corporation for eligible employees. Companies will have to do a quick internal check to determine if they are complying with ESI provisions or if they were not falling in notified areas under the erstwhile regime. If they were outside the purview of ESI till now, they will now have to commence compliance with registering their establishment and making prescribed contributions. Miscellaneous Changes In addition to certain critical pointers enumerated above, the Labour Codes introduce a host of other reforms to enhance labour reform while balancing ease of compliance. Find below a list of quick to-dos of other changes for the internal teams: Issue appointment letter(s) to all employees Arrange health check-up Maintain records and registers electronically In case of retrenchment, contribute prescribed amounts to re-skilling fund Migrate to the updated formats for registers, notices and returns as all the Labour Codes have consolidated multiplicity of registers, notices and returns Apart from the above, the Labour Codes also introduce several other changes, overhaul the sector specific framework for bidi workers, plantation workers, etc as well as introduce, for the first time, gig-workers. We will have to await the necessary rules, regulations and schemes to examine how the provisions span out over the coming months. Concluding Remarks The implementation of the four new Labour Codes marks a pivotal shift in India’s employment law framework, aligning it with contemporary business realities. For corporates, this transition presents both an opportunity and a responsibility—an opportunity to streamline compliance and redesign workforce strategies for greater efficiency, and a responsibility to ensure transparent and equitable employment practices. Therefore, an immediate need is for employers to undertake structured internal checks and “gap assessments” to identify misalignments between existing operations, and the new code requirements. Simultaneously, structured training for HR, line managers and supervisors on the Labour Codes needs to be rolled out focusing on practical scenarios such as overtime approval, payroll management, disciplinary action and restructuring. For multinational corporates, this would mean harmonising the Labour Code compliances with global policies while ring‑fencing India‑specific stricter requirements. Therefore, by proactively reviewing documentation, auditing payroll and benefits, and updating HR and compliance processes, organizations can mitigate enforcement and litigation risks and build a more transparent, legally robust workforce framework. Authored by Parag Bhide and Subarna Saha

Introduction: Among the various categories of trademarks available to businesses, a select few are classified as “unconventional marks.” These include marks based on sound (such as advertisement jingles), shape, colour, and even smell. Securing registration for such marks has historically been challenging, primarily due to difficulties in representation and the stringent distinctiveness criteria they must satisfy. For certain businesses, a distinctive scent, much like taste can leave a lasting impression on consumers. In such cases, smell has the potential to function as a source identifier, helping differentiate one business from its competitors. Traditionally, in India, smell marks have not been granted registration due to legal and practical limitations. However, in a significant recent development, one smell mark has been accepted by the Indian Trade Marks Registry. In this article, we analyse the prosecution history of the accepted smell mark and discuss its implications in the context of unconventional trademark protection. Facts: A Japanese company called Sumitomo Rubber Industries Ltd, has come up with a unique smell for one of their tiers. The said smell has been described as “A complex mixture of volatile organic compounds released by the petals interact with our olfactory receptor, creating a rose like smell. Using the technology developed by IIIT Allehabad. This whole rose like smell is represented as vector. Whereas   the seven dimensional vector represents one of the fundamental smells such as floral, fruity, woody, nutty, pungent, sweet and minty”. Under Section 2(z)(b) of the Trade Marks Act, 1999, a trademark must be capable of graphical representation. This requirement has long been the primary obstacle for unconventional marks such as smells, as representing a scent graphically is inherently difficult. In the case of Sumitomo’s application, the Registry initially raised objections on precisely these grounds—that the mark was incapable of being represented graphically. During multiple rounds of hearings, the Applicant’s attorneys argued that while graphical representation is indeed essential, the sensory pie chart and vector representation provided were sufficient to meet the statutory requirement. They further contended that a rose-like smell is universally recognisable, reducing the need for a more elaborate graphical depiction. It was also emphasized that adding a rosy fragrance to a tyre has no functional or technical purpose, thereby supporting its eligibility for trademark protection. The Applicant also cited successful registrations of the same smell mark in the UK and other jurisdictions to demonstrate its acceptability globally. Based on the materials and explanations submitted, the Registry ultimately concluded that the mark, as presented, was precise, clear, intelligible, self-contained, objective, and capable of graphical representation through adequate means, and accordingly accepted the smell mark for registration. Conclusion: With the evolving nature of modern businesses, it has become increasingly important to recognise and protect unconventional marks, whether through traditional trademark registration or through sui generis mechanisms. The acceptance of a smell mark suggests a gradual shift towards aligning with global trends and recognising non-traditional indicators of trade origin. However, several concerns remain unaddressed. In the present case, the mark has been represented using a sensory graph describing the scent as fruity, floral, minty, woody, nutty, sweet, and pungent. While such descriptors may be meaningful to experts in the field, they are unlikely to convey a precise or universally understood representation to the average consumer. This inconsistency becomes problematic because trademarks are intended to function as identifiers from the perspective of the relevant public, not specialists. Moreover, although the Registry has accepted the smell mark, it has not provided any concrete framework or guidelines for the graphical representation of such unconventional marks. In the absence of clear criteria, applicants are left without direction on how to meet statutory requirements for clarity, precision, and objectivity. This ambiguity not only makes it difficult for others to file similar applications but also risks inconsistent examination standards and challenges in enforcement. Another challenge that one might face in such cases will be with respect to the enforcement of such marks. Smell marks, by nature, are subjective; they vary with perception, environment, and even product conditions. The Registry did not sufficiently examine how infringement would be determined, how olfactory similarity would be tested, or whether consistent reproduction of the scent across goods could be verified. By accepting the mark without addressing these enforcement gaps, the Registry may have opened the door to ambiguity and potential litigation complexity. Lastly the applicant has discussed in length that smell in terms of tires is not functional and hence can become a source identifier for the product. However, whether the consumers perceive the smell as a source identifier of the said product or not is a question that is left unanswered. A scent that is unfamiliar in a particular product category does not automatically become a source identifier. The decision fails to demonstrate that consumers would perceive the smell as indicating trade origin rather than as a novelty feature. This raises doubts about whether the distinctiveness requirement central to the registration of any mark was adequately met. It is safe to say that the acceptance of this mark may encourage other businesses to explore unconventional branding strategies and strengthen their intellectual property portfolios. However, it also raises a critical question: was this step taken as a thoughtful evolution of Indian trademark jurisprudence, or merely an attempt to mirror developments in jurisdictions such as the UK, Australia, and the US? Until clearer guidelines and a consistent framework for assessing unconventional marks are established, the decision risks appearing more aspirational than principled. The true impact of this acceptance will ultimately depend on whether India develops its own coherent standards rooted in statutory requirements and practical enforceability rather than simply following global trends. Co-authored by Sanika Mehra, Co-Managing Partner ([email protected]) and Shilpa Chaudhury, Principal Associate ([email protected])

Argus Partners is pleased to announce that it has advised Arkam Ventures on its investment in Mirana Toys, a vertically integrated toy tech startup, as part of its Series A funding round.   The funding round was led by Arkam Ventures, with participation from Accel, Info Edge, and Riverwalk Holdings. Mirana Toys plans to use the funds to set up a new factory, including the installation of injection-moulding and die-casting machines, along with in-house packaging lines. In addition, Mirana plans to expand its design and sales teams to accelerate international growth. The team at Argus Partners advising Arkam Ventures consisted of Ankit Guha, Jitendra Soni (Partners), Sadia Akhter (Senior Associate) and, Samia Haider, Srishti Sneha, Harsh Garg (Associates). Read more at: Economic Times, Business Standard, MoneyControl, BusinessLine, YourStory.