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Insolvency and Bankruptcy - Case Laws

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• 2022 (12) TMI 373
  
  Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- As per the provisions of law the Financial Creditor has to furnish the details of the default. The Appellant / Applicant has failed to establish that the Corporate Debtor owed an amount to the Appellant and it defaulted. Further, the Appellant failed to establish the debt and default except in Part-IV of Form-I stating the total amount of debt granted Rs.4,62,92,880/- and there is no evidence with regard to disbursal of amount from the account of the Appellant against the consideration for the time value of money. The outgoing parties confirmed the terms of MoU dated 22.06.2017 and also confirmed the consideration as final settled amounts towards their sharehold....... + More

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• 2022 (12) TMI 372
  
  Maintainability of petition - Appellant does not satisfy the basic requirements of the provision of Companies Act as the Respondents are not a company as on the date of filing of the present petition - Section 421 of the Companies Act, 2013 - HELD THAT:- The Company Petition filed on 13.07.2018 by the Appellant before the Tribunal after delay of 4 years - Further, it is observed that the Appellant lodged FIR No.0259 dated 03.09.2016 regarding forgery, which has already been registered and presently charge sheet has been filed in the above FIR and the same is pending before the Court of Ms. Neha Pandey, MM-03, Tis Hazari Court (West), Delhi. It is also observed that the Respondent No. 6 the erstwhile company i.e. Bhero Baba Infosolutions Pvt. Ltd. has been converted into (Respondent No. 7) LLP i.e. Bhero Baba Info Solutions LLP way back in....... + More

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• 2022 (12) TMI 371
  
  Settlement Agreement has entered between the parties - application filed by Operational Creditor and Suspended Director of the Corporate Debtor for disposal of this Appeal in terms of the settlement agreement - HELD THAT:- Agreement is taken on record. The amount deposited by the Appellant under the order dated 01.12.2022 be refunded to the Appellant. In view of the order passed today, the Respondent No.1 need not deposit the amount of Rs. 2.5 Crores as directed on 01.12.2022 - Appeal disposed off.

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• 2022 (12) TMI 370
  
  Taking possession of the demise premises in view of Section 14(1)(d) of I&B Code - HELD THAT:- Section 14(1)(d) provides that the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor is prohibited. In support of this submission, Counsel for the Appellant has relied upon a decision of the Hon’ble Supreme Court rendered in the case of RAJENDRA K. BHUTTA VERSUS MAHARASHTRA HOUSING AND AREA DEVELOPMENT AUTHORITY AND ANOTHER [2020 (3) TMI 34 - SUPREME COURT], in which the question was about the correct interpretation of Section 14(1)(d) of the Code. In the case of Rajendra K. Bhutta, the application under Section 7 was admitted on 24.07.2017 and notice of termination was issued on 12.01.2018. The Appellant wherein filed an application before the NCLT to restrai....... + More

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• 2022 (12) TMI 369
  
  Seeking liquidation of the Corporate Debtor - Section 33 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The ratio in the case of MR. SHARAD SANGHI AND ASHUTOSH KOUL AND 814 OTHER EMPLOYEES OF JYOTI STRUCTURES LIMITED VERSUS MS. VANDANA GARG AND ORS. AND DBS BANK LIMITED AND ORS. [2019 (5) TMI 387 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL] is not applicable to the facts and circumstances of the present case because there is a change in the voting share in the present case that takes place after the order of liquidation. It is also pertinent to mention that it has been time and again held by the Hon’ble Apex Court that the Code is complete in itself and since there is no provision to deal with such a situation as we have one in hand, we do not find it to be a fit case to apply Rule 11 of the NCLAT Rules 2016 which operate i....... + More

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• 2022 (12) TMI 368
  
  Liability to pay the dues to the ‘Corporate Debtor’ - outstanding dues of inter-company transfer - Corporate Debtor in liquidation - time limitation - amount due and payable - tri-partite agreement - whether the claim filed by Liquidator under sub-Section (5) of Section 60 of the Code is governed by Article 137 of the Limitation Act, 1963 and if the claim is enforceable by law as on the date of the Liquidation Order, or is it barred by Limitation? - Whether the amount is due and payable as it is the case of the Appellant that the dues were settled by way of inter-company transfers pursuant to a Tripartite Agreement entered into between the Corporate Debtor, its Sister Concern and the Appellant? - HELD THAT:- Section 60(6) of the Code is similar to Section 458A of the Parent Company Act, 1956, which deals with exclusion of cert....... + More

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• 2022 (12) TMI 367
  
  Seeking transmission of shares in the Appellant’s name - existence of valid Succession Certificate at the time of filing of the Company Petition or not - whether the NCLT was justified in directing the executor to issue Notice to the Rival Claimant namely Smt. K. Sumathi and in granting six weeks time to obtain the necessary clarification regarding the Succession Certificate, keeping in view the facts and circumstances of the attendant case on hand? HELD THAT:- A perusal of the material on record shows that the Respondent Company had received various letters of communication from both Smt. K. Sumathi and Ms. Nalini Hari in respect of the shares held by late Mr. R. Kapanipathi Rao. It is the main case of the Appellant that the NCLT has erroneously given time for Smt. K. Sumathi to obtain clarification regarding the Succession Certifi....... + More

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• 2022 (12) TMI 352
  
  Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial creditors - existence of debt and dispute or not - HELD THAT:- On looking into the Letter of Intent which has been relied by the Counsel for the Appellant, Clause 1 to 7, it is clear that the agreement which was sought to be entered between the parties was for premises for the use of the Appellant and the LoI contemplated execution of the lease deed on the rent basis. The amount of Rs.1.2 Crore was advance by the Appellant in pursuance of the LoI which is clear from Clause 7 of the LoI. There can be no quarrel to the preposition laid down by the Hon’ble Supreme Court in Orator Marketing Pvt. Ltd. [2021 (8) TMI 314 - SUPREME COURT]. The use of the word ‘if any’ clearly makes that it is not essential for all....... + More

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• 2022 (12) TMI 351
  
  Seeking refund to the Corporate Debtor with interest being the amounts illegally retained by them and which amounts were given during moratorium period for supply of goods/components - punishment for contravention of Section 14, 31 and Section 74 of IBC for siphoning off proceeds of Corporate Debtor in contravention of Moratorium imposed by this Hon’ble Tribunal - HELD THAT:- It is an admitted case that the Resolution Plan was approved by the Adjudicating Authority on 02.04.2019 and thereafter, I.A. No. 3927 of 2020 was filed on 14.09.2020 before the Adjudicating Authority approximately after 18 months of approval of the Resolution Plan. Keeping in view of the aforenoted facts, we agree with the reasons given by the Adjudicating Authority, therefore, the impugned order dated 16.08.2021 passed by the Adjudicating Authority (National ....... + More

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• 2022 (12) TMI 316
  
  Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - service of demand notice - HELD THAT:- The contractual dispute between the parties if arise, during the contract provisions are made in all contracts for resolution of such disputes. The dispute between the parties are not supposed to be decided, examined and adjudicated in IBC proceeding. Only question to be looked in Section 9 Application is as to whether the objection raised by the Corporate Debtor opposing claim of the Operational Creditor is not a moonshine defense. We have looked into the emails which were sent by the Corporate Debtor and which are part of the Appeal Paper Book. We are of the view that the issues raised in these emails are not moonshine defense, the....... + More

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• 2022 (12) TMI 315
  
  Maintainability of application preferred by the Financial Creditors under Section 7 of the Code - initiation of CIRP - application dismissed on the ground that it is barred by Limitation - HELD THAT:- Keeping in view that there is no denial by the Counsel for the Respondent that the amount was reflected in the Balance Sheets coupled with the fact that the Appellant had filed the Balance Sheet for the Financial Year 2019 which reflects these amounts under unsecured loans, this Tribunal is of the considered view that the acknowledgement in the Balance Sheet squarely falls under ‘acknowledgment of debt’ as provided for under Section 18 of the Limitation Act, 1963. The Hon’ble Supreme Court in LAXMI PAT SURANA VERSUS UNION BANK OF INDIA & ANR. [2021 (3) TMI 1179 - SUPREME COURT] and in DENA BANK (NOW BANK OF BARODA) VERS....... + More

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• 2022 (12) TMI 314
  
  Direction to Corporate Debtor to pay the balance amount of fees and expenses of Interim Resolution Professional - Section 19(2) of the IBC - HELD THAT:- After hearing the parties and in view of the order passed by this Tribunal on 03.02.2020 where liberty was granted that in default IRP/RP may move this Tribunal for recalling the order. Keeping in view of the fact that pursuant to the order passed by this Tribunal, the NCLT considered the case of the IRP and directed the Corporate Debtor to pay the CIRP costs. In view of the above, there is no occasion to move the application before this Tribunal for non-compliance of the order passed by the NCLT. Therefore, the instant application i.e. I.A. No. 313 of 2021 is hereby dismissed.

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• 2022 (12) TMI 276
  
  Delay in Revival of the Corporate Debtor - Resolution Plan was implemented in its entirety and that the Corporate Debtor was not functional for a long period and that the implementation of the Employee Engagement Programme, as contemplated in the Plan had commenced - delay in revival procedure - valuation of shares - HELD THAT:- The Resolution Professional, in tune with the ingredients of Section 30 (2) of the I & B Code, 2016, is to examine each Resolution Plan, received by him, to affirm that the Resolution Plan, prescribes for the payment of Insolvency Resolution Process Costs, payments of Debts of Creditors, the management of affairs of the Corporate Debtor, implement and supervision of the Resolution Plan, other requirements as may be specified by the Board and does not violate any Section of Law, for the time being in force. As ....... + More

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• 2022 (12) TMI 274
  
  Seeking exemption from personally appearing before the trial court on each and every date of the said criminal proceeding on 9th March, 2021 - Section 205 of the Code of Criminal Procedure - HELD THAT:- Section 205 confers a discretion on the court to exempt an accused from personal appearance till such time his appearance is considered by the court to be not necessary during trial. It is manifest from a complaint reading of the provision that while considering an application under Section 205 of the Code, the Magistrate has to bear in mind the nature of the case as well as the conduct of the person summoned. It is the foremost duty of the trial court to examine whether any useful purpose would be served by requiring the personal attendance of the accused or whether the progress of the trial is likely to be hampered on account of his abse....... + More

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• 2022 (12) TMI 273
  
  Seeking quashing of the impugned show cause notices dated 22nd November, 2022 issued by South Eastern Coalfields Limited (SECL) - HELD THAT:- The admitted position on record is that the Petitioner is undergoing insolvency proceedings. It is also admitted that the project is yet to be commissioned. Under these circumstances, prima facie, there appears to be no extension beyond the date of 31st March, 2022, which has been given to the Petitioner. Moreover, a perusal of the show cause notices also shows that the Respondents have called upon the Petitioner to file a reply and to deal with the breach of various conditions in the CSA which required the Petitioner to commission the plant. This Court is not inclined to go into the merits of the petition as to whether there is any justifiable cause for non-commissioning of the plant and as to what....... + More

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• 2022 (12) TMI 272
  
  Forfeiture of right to file reply - Financial Debt or not - financial assistance or loan - HELD THAT:- It is seen from the material on record that first notice was directed to be issued by the Adjudicating Authority on 09.12.2019 and Ms. Shivangi Agarwal had appeared before the Adjudicating Authority and offered to file her vakalatnama on 20.01.2020. On 06.02.2020 time was sought to file Reply and the matter was adjourned. On 05.03.2020, the Respondent Counsel was absent. On 08.02.2021, since the matter was taken up after the covid situation, the Counsel for the Petitioner was directed again to issue a notice informing the Respondent regarding the next date of hearing - there is no illegality in the Order of the Adjudicating Authority in forfeiting the right of the Appellant in filing a Reply. The amount is a ‘Financial Debt’ ....... + More

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• 2022 (12) TMI 271
  
  Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - proper authorization for issuance of demand notice under Section 8 of IBC - existence of debt and dispute or not - HELD THAT:- The Adjudicating Authority on perusal of the record has recorded that both the demand notices, first dated 29.11.2018 and the second dated 10.10.2019 issued under Section 8 of the code which is pre-requisite for initiation of CIRP proceedings was signed and issued by one Mr. Surendra Prasad Shukla , in the capacity of whole-time Director and authorized signatory of the Applicant company, without there being any authorization. Once, the Ld. Adjudicating Authority had noticed that there was no specific authorization on record authorizing Mr. Surendra Prasad Shukla for issuance of demand ....... + More

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• 2022 (12) TMI 150
  
  Failure on the part of IRP to discharge his duties or not - levy of penalty on IRP - HELD THAT:- Prima facie, having read the provisions of Sec.12 (2) of the I.B.C and the contents of the order under challenge which extensively quoted the observations of the adjudicating authority, it is evident that there cannot be any negligence attributed to the petitioner who was to follow the provisions of Sub-sec.2 of Sec.12 of I.B.C. On this count, on a condition that the petitioner deposits Rs.2 lakhs as envisaged under the order by way of a penalty in the registry, on or before 09.12.2022, issue notice to the respondents, returnable on 17.01.2023. There shall be ad-interim relief in terms of para 49(c), till then.

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• 2022 (12) TMI 149
  
  Constitutional validity - Regulation 36A of IBC - splitting of the CIRP into inviting expression of interest and then seeking resolution plans - Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 - ultra vires of Section 240(1) of the Insolvency and Bankruptcy Code, 2016 or not - HELD THAT:- A perusal of the IBC would show that Section 3(1) of the IBC defines `Board’ as the Insolvency and Bankruptcy Board of India established under Section 188(1) of the IBC. The Board is inter alia, entrusted the functions of registration of insolvency professional agencies, promotion and development of such agencies, supervision of insolvency professional agencies and insolvency professionals, investigation for insolvency professionals, the maintenance and publication of information and ....... + More

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• 2022 (12) TMI 148
  
  Recovery proceedings of debts - attachment of movable/immovable property of the petitioners - section 19 of the Recovery of Debts and Bankruptcy Act, 1993 - HELD THAT:- It appears that the petition filed by the petitioners is nothing but adopting delay tactics for not permitting the respondent banks to recover the outstanding dues or to give effect to the sale confirmation made by the Recovery Officer by impugned order dated 28.11.2019. It is not in dispute that the petitioners have not challenged the judgment and award dated 13.12.2018 passed by the DRT in OA No. 184/2017 before the Debts Recovery Appellate Tribunal as per the provisions of section 20 of the RDB Act and therefore, judgment and award dated 13.12.2018 has achieved finality - This contention of the petitioners cannot be accepted in view of facts emerging from the record to ....... + More

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