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Insolvency and Bankruptcy - Case Laws

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• 2020 (11) TMI 802 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , NEW DELHI
  
  Maintainability of application - Assignment of Debt - It is argued that the Notice issued by SBI as Consortium Leader was already withdrawn and subsequent individual action of State Bank of India and Order passed in view of that action under SARFAESI cannot be reason for Adjudicating Authority to dismiss the Application under Section 7 as not maintainable - Argument is that action under Section 7 of IBC is not adversarial but to save the Corporate Debtor by bringing about resolution so that the debts can be fairly paid - time limitation - HELD THAT:- It is apparent that the Adjudicating Authority did not apply itself to the Orders which were being relied on by the Corporate Debtor and simply recorded that it is not empowered to pass any Order over jurisdiction of Hon’ble High Court or to clarify interim orders passed by the Hon&rsqu....... + More

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• 2020 (11) TMI 801 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
  
  Time Limitation - Deed of Guarantee - failure to prove default or not - legally enforceable debt or not - Whether dismissal of such reference in the given circumstances would attract Regulation 19(7) of BIFR Regulations to hold that such reference was never made for having been declined to be registered? - HELD THAT:- The answer lies in Regulation 19 itself. Regulation 19(3) provides that a reference may be filed either by delivering it at the office of the Board or by sending it by registered post. Regulation 19(4) provides that on receipt of a reference the Secretary/ Registrar shall cause to be endorsed on each reference the date on which it is filed or received in the office of the Board. Regulation 19(5) provides that if on scrutiny, the reference is found to be in order, it shall be registered, assigned a serial number and submitted....... + More

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• 2020 (11) TMI 800 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , NEW DELHI
  
  Maintainability of application - initiation of CIRP - claim against Corporate Debtor second time on the same set of claims, initially made on principal borrower - Respondent stood Guarantor for the Principal Borrower - Borrower committed default in repayment of loan - when Application under Section 7 had been admitted against the Principal Borrower whether the present Application by the same Financial Creditor could be admitted against Corporate Guarantor on same set of claims and default. HELD THAT:- It is clear that in the matter of guarantee, CIRP can proceed against Principal Borrower as well as Guarantor. We are unable to agree with the arguments of Learned Counsel for Respondent that when for same debt claim is made in CIRP against Borrower, in the CIRP against Guarantor the amount must be said to be not due or not payable in law. U....... + More

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• 2020 (11) TMI 799 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
  
  Validity of CIRP initiated - fraudulent or malicious intent or purpose other than Resolution of Insolvency and Liquidation of the Corporate Debtor or otherwise? - time limitation u/s 7 - HELD THAT:- Although the suit was filed in time the Winding up Petition was beyond three years of the default and when such Winding up Petition was transferred in view of the Rules to the NCLT to convert the same into a proceeding under Section 7 of IBC, it was found that as the Winding up Petition itself was time-barred from the date of default, the same could not be proceeded further as Application under Section 7. When developments in the present matter are seen, if IBHL classified the Borrower Entities as NPA in November, 1997, even if the suits were filed in 1998 and 1999, that would not be relevant or helpful to extend time of Limitation for the pur....... + More

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• 2020 (11) TMI 727 - NATIONAL COMPANY LAW TRIBUNAL , KOCHI BENCH
  
  Entertainment of claims made by creditors after approval of Resolution Plan - whether after approval of Resolution Plan by the Adjudicating Authority, the claims made by the creditors can be entertained? - HELD THAT:- Once the Resolution Plan is finalized and approved, it shall be binding upon all the stakeholders and nobody shall have the power to change it. Even the Adjudicating Authority will not have a binding say on the approval of the Resolution Plan or on the commercial wisdom of the COC. The dues and liability as mentioned in the Resolution Plan as on the commencement of the Corporate Insolvency Resolution Process (CIRP), which is the day on which the Plan is approved by the Adjudicating Authority, shall be binding on every stakeholder and the Resolution Applicant shall be bound to pay only those which are mentioned in the Resolut....... + More

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• 2020 (11) TMI 678 - CALCUTTA HIGH COURT
  
  Winding up of Company - whether the Company Court would retain jurisdiction to hear the winding up petition? - HELD THAT:- It is clear from the Judgment that the learned Judge was of the view that the Company Court retains jurisdiction over winding-up petitions which were filed before the IBC came into force. In that view of the matter, the Court held that the Official Liquidator acting as the Provisional Liquidator could retain the symbolic possession of the assets and properties of the Company (in liquidation). It was also decided that questions of title to the flats, etc. were declaratory in nature and could hence only be decided by this Court. The important part of the Judgment however is the point of time when this Court reasserts its jurisdiction for deciding the issues related to the Company (in liquidation). This Court is informed....... + More

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• 2020 (11) TMI 677 - BOMBAY HIGH COURT
  
  Maintainability of petition - availability of alternate remedy of appeal provided under Section 61 of the I.B. Code - Whether notification issued under Section 4 of the MPID Act and consequent attachment of the property including the bank account of the corporate debtor can be challenged by approaching NCLT under Section 60(5) of the I.B. Code? HELD THAT:- Full Bench of this Court in the case between Vijay C. Pulijal vs. State of Maharashtra [2005 (9) TMI 303 - HIGH COURT OF BOMBAY] held that the provisions of MPID Act are ultravires for want of legislative competence of the State legislature. The Full Bench of this Court took a view that the MPID Act transgressed into the field reserved for Parliament. The Full Bench held that the subject matter covered by the MPID Act squarely falls within the ambit of section 58-A and 58-AA of the Comp....... + More

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• 2020 (11) TMI 676 - NATIONAL COMPANY LAW TRIBUNAL , KOCHI BENCH
  
  Direction to 2nd Respondent to release the machinery in possession with the 1st Respondent/Corporate Debtor and transfer the possession of the same to the Applicant - HELD THAT:- In the statement, in regard to payment for the security arrangements of the Corporate Debtor it is stated that even though three securities have been arranged to guard the Corporate Debtor premises to keep the machineries, the Resolution Professional has limited it into two securities charges and claimed the six months charges of ₹ 1,90,080. Since the applicant undertake to make payment of ₹ 75,000/- in addition to ₹ 38,414/- already paid by them, the Resolution Professional should accept that amount, as the Corporate Debtor property is still under the possession of the Resolution Professional, the Resolution Professional has also to bear a part....... + More

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• 2020 (11) TMI 675 - NATIONAL COMPANY LAW TRIBUNAL , KOCHI BENCH
  
  Permission to applicant/State of Kerala to use the Corporate Debtor Hospital, RIMS Hospital, Erattupetta as Covid Hospital for Covid patients with immediate effect - Section 33(1)(b) of IBC, 2016 - HELD THAT:- The request of the applicant District Collector seems to be reasonable in view of the pandemic condition in the State of Kerala, due to Covid-19. Hence this M.A is allowed with the following conditions: - I. A detailed inventorisation of the subject property be carried out in the presence of the officials of the Applicant, the representative of the Liquidator prior to handing over of the premises to the applicant. II. During the acquisition of the Corporate Debtor (Hospital)the applicant cannot change or make any permanent structure in the aforesaid premises. III. The subject property (Hospital) be taken over by the Applicant on &ls....... + More

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• 2020 (11) TMI 674 - NATIONAL COMPANY LAW TRIBUNAL , CHANDIGARH BENCH
  
  Exclusion of lockdown period w.e.f. 25.03.2020 to 30.06.2020 from the CIRP period - Section 60(5) of the IBC Code, 2016 read with Regulation 40(C) of the IBBI (IRP for Corporate Persons) Regulations, 2016 and read with Rule 11 of NCLT Rules, 2016 - HELD THAT:- The Hon'ble Supreme Court of India in Suo Motu Writ Petition (Civil) No(s). 3/2020 in Re: cognizance for extension of Limitation, vide order dated 23.03.2020, [2020 (5) TMI 418 - SC ORDER] observed as under:-"This Court has taken Suo Motu cognizance of the situation arising out of the challenge faced by the country on account of Covid-19 Virus and resultant difficulties that may be faced by litigants across the country in filing their petitions/applications/suits/appeals/all other proceedings within the period of limitation prescribed under the general law of limitation or ....... + More

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• 2020 (11) TMI 673 - NATIONAL COMPANY LAW TRIBUNAL , AHMEDABAD BENCH
  
  Permission for withdrawal of Resolution Plan post CoC's approval - HELD THAT:- It is very interesting to note that the factors which Adjudicating Authority is now capable to consider for limited judicial view are not mentioned in Section 30(2). This is a significant departure in judicial approach whereas earlier it was generally held that the role of NCLT was limited to see that Resolution Plan confirms to the requirements of Section 30(2) on the assumption that both RP and CoC had already seen aspects mentioned therein and merits of the Commercial wisdom of CoC could not be interfered with The CoC must take into consideration interest of all stakeholders in the best possible manner and for that purpose, it should follow the principle of fair play and reasonableness while supervising CIRP and approving the Resolution Plan. Consequentl....... + More

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• 2020 (11) TMI 672 - NATIONAL COMPANY LAW TRIBUNAL , NEW DELHI BENCH
  
  Dissolution of the Corporate Debtor - Section 54 of the IBC - Whether the pendency of any Investigation on the Corporate Debtor creates a bar for passing on order of dissolution of a Company? HELD THAT:- When a company gets dissolved under Section 248, it will cease to operate except for the purpose of realising the amount due to the company and for the payment or discharge of the liabilities or obligations of the company. Though the Legislature has specifically made such a provision when dissolution takes place by virtue of Section 248 of Companies Act 2013, such exception cannot be presumed to be available as a thumb rule in situations when dissolution takes place via other modes especially under the I & B Code, 2016, where no such provision is expressly available. It is evident that the pendency of an Investigation creates a bar fo....... + More

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• 2020 (11) TMI 671 - NATIONAL COMPANY LAW TRIBUNAL , CHENNAI BENCH
  
  Liquidation order - no privity of contract - financial debt - Applicant Bank has claimed that it has got absolute right to file claim Petition before the Liquidator and the said claim is squarely falling within the purview of "financial debt" and alleged that the Liquidator has erroneously rejected the claim Petition on the ground that there is no privity of contract between 1st and 2nd Respondents - HELD THAT:- The Appellant Bank has filed its claim in relation to the dues pending from COGIL before the Liquidator of NOCL. However, COGIL had filed its claim before the Liquidator, which stood rejected and against the said order of rejection, no appeal seems to have been preferred by COGIL before this Tribunal. Since COGIL has filed its claim before the Liquidator of NOCL, it will not in any way entitle the Appellant Bank to make ....... + More

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• 2020 (11) TMI 670 - NATIONAL COMPANY LAW TRIBUNAL , HYDERABAD BENCH
  
  Exclusion of time period from time period for completion of CIRP of Corporate Debtor - extension of 120 days from 01.07.2020 to 28.10.2020 for completion of CIRP of Corporate Debtor - HELD THAT:- In this case, the CIRP period of 180 days has already been extended by another 90 days vide this Adjudicating Authority's order dated 05.11.2019 and by virtue of section 12 of IBC, 2016, a period another 60 days was extended vide order dated 11.02.2020. The period of 270 days + 60 days came to an end on 09.02.2020 and 09.04.2020 respectively. Now that the Applicant herein is seeking exclusion of period lost due to outbreak of Covid-19 pandemic. Considering the submissions, facts and circumstances of case, interest envisaged by the Prospective Resolution Applicant for resolution of Corporate Debtor and in view of the decision of CoC in its 17t....... + More

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• 2020 (11) TMI 669 - NATIONAL COMPANY LAW TRIBUNAL , HYDERABAD BENCH
  
  Approval of Resolution Plan - Directions to the Committee of Creditors (CoC) requiring the CoC to consider Final Resolution Plan - directions to amend the Request For Resolution Plan (RFRP) issued by the Resolution Professional - main contention of the learned counsel for the applicants is that certain clauses in the RFRP are in contravention of the provisions of the SARFAESI Act and the RBI Guidelines. HELD THAT:- The Resolution Plan was rejected on the ground that M/s. Prudent ARC will not invest in equity and will not become a shareholder of the Corporate Debtor. RFRP provides that in case of Consortium, all the parties in the Consortium to be jointly and severally liable for implementation of the Plan. This objection has been raised by the Resolution Professional from time to time. However, the Plan was not amended to include M/s. Pru....... + More

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• 2020 (11) TMI 668 - NATIONAL COMPANY LAW TRIBUNAL , CHANDIGARH BENCH
  
  Exclusion of certain time from the CIRP period in view of the time lost in replacing the Interim Resolution Professional and also the lockdown imposed due to Pandemic Covid-19 - HELD THAT:- The Hon'ble Supreme Court of India in Suo Motu Writ Petition (Civil) No(s). 3/2020 in Re: cognizance for extension of Limitation, vide order dated 23.03.2020, [2020 (5) TMI 418 - SC ORDER] observed as under:-"This Court has taken Suo Motu cognizance of the situation arising out of the challenge faced by the country on account of Covid-19 Virus and resultant difficulties that may be faced by litigants across the country in filing their petitions/applications/suits/appeals/all other proceedings within the period of limitation prescribed under the general law of limitation or under Special Laws (both Central and/or State). The Insolvency and Bank....... + More

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• 2020 (11) TMI 627 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
  
  Restoration of name of a Company in the register of companies - requirement of pending Financial Statements and Annual Returns with the Registrar - HELD THAT:- It is to be remembered that Rule 12 of Companies (Registration Offices and Fees) Rules, 2014 says that the documents required to be submitted, registered or recorded or any fact or information required or authorised to be registered under the Companies Act shall be submitted, filed, registered or recorded on payment of the fee or on payment of such additional fee as applicable An ‘Appeal’ can be filed by a ‘person’ aggrieved by the ‘Registrar of Companies’ ‘Order’ notifying the dissolution of the Company, within three years from the date of order of the ‘Registrar of Companies’ communicating the reasons thereto - In Law, t....... + More

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• 2020 (11) TMI 626 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
  
  Stay on Liquidation proceedings - validity of Liquidation Order - continuation of CIRP - bringing back the money belonging to the corporate debtor - HELD THAT:- An appeal against a liquidation order passed under Section 33 may be filed on the grounds of material irregularity or fraud committed in relation to liquidation order. We find no material irregularity or fraud committed in relation to impugned order - The I&B Code, 2016 is not meant for initiating proceedings for prevention of oppression and mismanagement but is armed with provisions under part -II Chapter - III for initiation of actions against wrong doers/illegal transactions etc. There are no reason to interfere with the liquidation order passed by the Adjudicating Authority dated 29.07.2020 - the order passed by the Adjudicating Authority is upheld. Appeal dismissed.

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• 2020 (11) TMI 620 - NATIONAL COMPANY LAW TRIBUNAL , HYDERABAD BENCH
  
  Recovery of amounts from Bank Guarantees - Whether respondent no. 1 is in order in invoking Bank Guarantees when O.M. dated 12.04.2017 (EXHIBIT A5), provides time period for Provisional Mega Projects, for furnishing Final Mega Certificates to the Tax authorities to 120 months, viz. by which validity is available upto 2021, for the applicant to avail benefit of exemption from payment of customs duty? - HELD THAT:- We agree with the contention of the applicant as regards the issue as the Corporate Debtor was given time to submit Final Mega Power Project Certificate within the period of 120 months and in the instant case the Corporate Debtor has imported machinery in the year 2011 and it enjoys benefit of exemption from payment of customs duty for 120 months till 2021. We therefore, have no hesitation in accepting the contention of the appli....... + More

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• 2020 (11) TMI 586 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
  
  Remuneration of Liquidator - Applicability of Regulation 4(2) and (3) of the Liquidation Process Regulations, 2016 or Regulation 39D? - HELD THAT:- The Adjudicating Authority (National Company Law Tribunal), Chandigarh Bench, Chandigarh was of the view that Regulation 39D provides for fixation of the fees separately by the Committee of Creditors for the three periods given in Section 39D and the fees in the instant case was not governed by Section 39D as the order of liquidation came to be passed under Section 33(1) (a) of the ‘I&B Code’. Be that as it may, the order of liquidation has been passed and the Corporate Debtor is undergoing liquidation process. It is immaterial which provision of the ‘I&B Code’ squarely governs the passage of order of liquidation. The fact remains that the Committee of Creditors....... + More

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