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Insolvency and Bankruptcy - Case Laws

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• 2020 (9) TMI 801 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
  
  Review of order - correction of an error ‘apparent on the face of record’ - Section 420(2) of the Companies Act, 2013) r/w Rule 11 of the ‘NCLAT’ Rules, 2016 - HELD THAT:- It is to be pointed out that the power to ‘Review’ is not an ‘inherent power’ and must be showered by Law either expressly or by necessary implication. As a matter of fact, the power to ‘review’ is a creation of statute. Indeed, a ‘Review Jurisdiction’ cannot be pressed into service as an ‘Appellate Jurisdiction’. Moreover, the ‘Power of Review’ is not to be confused with an Appellate power. A ‘review’ cannot be claimed or asked for merely for a fresh hearing or arguments or the correction of an erroneous view taken earlier - It is an axiomatic principle in Law th....... + More

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• 2020 (9) TMI 800 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
  
  Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - pre-existing dispute or not - HELD THAT:- The Ld. Adjudicating Authority have failed to consider the facts that there was a pre-existing dispute between the parties much prior to filing of application under Section 9 of the IBC. The impugned order cannot be sustained in the eye of Law and in view of the Judgment of the Hon’ble Supreme Court in MOBILOX INNOVATIONS PRIVATE LIMITED VERSUS KIRUSA SOFTWARE PRIVATE LIMITED [2017 (9) TMI 1270 - SUPREME COURT] and is hereby fit to be set aside and the Appeal is allowed. ‘Corporate Debtor’ is released from the rigor of the ‘Corporate Insolvency Resolution Process’. All actions taken by the ‘Interim Resolution Professional / Resolution Professional’....... + More

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• 2020 (9) TMI 799 - NATIONAL COMPANY LAW TRIBUNAL , BENGALURU BENCH
  
  Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- It is a settled position of law that the provisions of Code cannot be invoked for recovery of outstanding amount but it can be invoked to initiate CIRP on justified reasons - The Hon'ble Supreme Court in the case of MOBILOX INNOVATIONS PRIVATE LIMITED VERSUS KIRUSA SOFTWARE PRIVATE LIMITED [2017 (9) TMI 1270 - SUPREME COURT] has inter alia, held that IBC, 2016 is not intended to be substitute to a recovery forum. The instant petition is filed on misconceived fact and law and against the object of Code. Since the Respondent agreed to settle the claim of the Petitioner, subject to substantiating it, we are inclined to dispose of the instant petition directing the Respondent to settle the claim of the Petitioner, provided the Petitioner submitted requisite documents - Petition disposed off.

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• 2020 (9) TMI 798 - NATIONAL COMPANY LAW TRIBUNAL , BENGALURU BENCH
  
  Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- It is not in dispute that Petitioner has rendered his faithful services to the Respondent in good faith without getting his fees settled before his services. Therefore, the Respondent has rejected the case of Petitioner purely on legal grounds by taking advantage of limited scope available to the Petitioner to invoke provisions of Code. It is true that the Respondent can legally deny the legitimate claim of Petitioner by taking advantage of summary proceedings as provided under the provisions of Code. In any case, professional fee to an experienced person like the Petitioner cannot be mere travelling expenses incurred. Though the instant Petition is not maintainable under the prov....... + More

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• 2020 (9) TMI 797 - NATIONAL COMPANY LAW TRIBUNAL , BENGALURU BENCH
  
  Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- It is settled position of law that the provisions of Code cannot be invoked for recovery of outstanding alleged amount(s), but it can be invoked to initiate CIRP for the justified reasons as per objective of the Code. The Hon'ble Supreme Court in the case of MOBILOX INNOVATIONS PRIVATE LIMITED VERSUS KIRUSA SOFTWARE PRIVATE LIMITED [2017 (9) TMI 1270 - SUPREME COURT] has inter alia, held that IBC, 2016 is not intended to be substitute to a recovery forum. The instant Company Petition is not a fit case to initiate CIRP and the Parties can prosecute the alternative remedy by way of Mediation, which is already filed on 31,12,2019, before the District Legal Services Authority, Ben....... + More

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• 2020 (9) TMI 796 - NATIONAL COMPANY LAW TRIBUNAL , BENGALURU BENCH
  
  Impleadment of application - condonation of delay - whether the Applicant is a proper and necessary party to be impleaded in the main Company Petition, whether it has come with a bona-fide claim and reasons for seeking extension of time lines in the CIRP; and whether any prima facie case is made out on merits for any interference to be made by this Authority? HELD THAT:- Basic facts about the commencement of the CIRP vide order dated 27.09.2019, steps taken by the RP, Public Announcement seeking/invitation for expression of interest, the last date for the same, the treatment of the Applicant's EOI etc. are not in dispute and are part of record. However, the Applicant pleads ignorance of the same and contends that the CIRP started only in the first week of February 2020. This assertion we find to be patently untenable as the Code itsel....... + More

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• 2020 (9) TMI 795 - NATIONAL COMPANY LAW TRIBUNAL , CHENNAI BENCH
  
  Approval of Resolution plan - IRP omitted the application (financial credit) as part of the Committee of Creditors (COC) - failure on the part of IRP to classify the creditor - withdrawal of CIRP under Section 12A of IBC, 2016 - HELD THAT:- A COC validly constituted by the IRP with a 90% voting share is required to approve the withdrawal of an application earlier admitted resulting in the initiation of CIRP of the Corporate Debtor by this Tribunal sitting as an Adjudicating Authority as named under IBC, 2016. Referring to the provisions in relation to the constitution of the COC under IBC, 2016, Section 21(1) of the Code provides upon determination of the financial position after collation of all claims received against the Corporate Debtor the IRP shall constitute the COC and in terms of Section 21(2) it shall comprise of all the financi....... + More

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• 2020 (9) TMI 794 - NATIONAL COMPANY LAW TRIBUNAL , CUTTACK BENCH
  
  Whistle blower Activity - this case is "cooked up" "stage managed" by Financial Creditor/Corporate Debtor/Resolution Professional, defrauding one and all - HELD THAT:- There is no sufficient proof of loan from Financial Creditor/Applicant to Corporate Debtor. Further, the Corporate Debtor has in reply affidavit admitted "Loan". There are two letters from applicant to Corporate Debtor seeking repayment of the alleged loan. The Registry is directed to communicate this order to Resolution Professional by email as well as by speed post - Issue a copy of this order to IBBI for their information and records. Post the matter on 20.03.2020 for further hearing.

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• 2020 (9) TMI 793 - NATIONAL COMPANY LAW TRIBUNAL, HYDERABAD BENCH
  
  Permission for withdrawal of present matter - Stay of constitution of Committee of Creditors - CIRP process withdrawn - HELD THAT:- It would be necessary to consider the facts as they happened i.e., in chronological order. The Application bearing CP (IB) No 262/9/HDB/2019 was filed by the Operational Creditor M/s. Sri Chaitanya Chlorides u/s 9 of the Code against the Corporate Debtor on 23.04.2019. After affording an opportunity of being heard to the Corporate Debtor, this Adjudicating Authority has admitted the said Application vide its order dated 16.12.2019. Thereafter few more Applications bearing CP (IB) No. 736/9/HDB/2019, CP(IB) No. 774/9/HDB/2019 etc., were filed u/s 9 by the Operational Creditors of the Corporate Debtor including Applicants in IA No. 178/2020 and 179/2020 being considered in this common order. These applications ....... + More

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• 2020 (9) TMI 792 - NATIONAL COMPANY LAW TRIBUNAL , HYDERABAD BENCH
  
  Exclusion of period of 7 days from CIRP end date i.e., 06.02.2020 for the purpose of approving Resolution Plan - HELD THAT:- Considering the submissions, facts and circumstances of case, stage of CIRP, and in view of the decision of CoC in its 9th meeting, this Adjudicating Authority observes that only a short time period is left for completion of CIRP and it would be in the interest of all stakeholders to allow the completion of CIRP rather than going for liquidation of the Corporate Debtor. Accordingly, it is approved to exclude a period of another 7 days from calculation of CIRP period which is ending on 06.02.2020. As such the applicant will have another 7 days w.e.f. 07.02.2020, for completion of CIRP process of the Corporate Debtor. This exclusion is granted on having considered the steps already taken by the RP and the current stage of CIRP in the case of the present Corporate Debtor i.e., M/s. Indu Projects Limited. Application disposed off.

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• 2020 (9) TMI 747 - NATIONAL COMPANY LAW TRIBUNAL , MUMBAI BENCH
  
  Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational debt - existence of debt and dispute or not - HELD THAT:- Section 5(21) of the IBC defines an “Operational Debt” to mean “a claim in respect of the provision of goods or services including employment or a debt in respect of the payment of dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority.” Section 5(2) of the IBC defines the term “Operational Creditor” to be a person to whom an operational debt is owed and includes any person to whom such debt has been legally assigned or transferred - Thus, only if the claim falls within one of the three categories as listed above, can it be classified as an oper....... + More

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• 2020 (9) TMI 746 - NATIONAL COMPANY LAW TRIBUNAL , MUMBAI BENCH
  
  Maintainability of application - initiation of CIRP - Corporate debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- The application made by the Operational Creditor is complete in all respects as required by law. It clearly shows that the Corporate Debtor is in default of a debt due and payable, and the default is in excess of minimum amount of one lakh rupees stipulated under section 4(1) of the IBC at the relevant time. Therefore, the default stands established and there is no reason to deny the admission of the Petition. In view of this, this Adjudicating Authority admits this Petition and orders initiation of CIRP against the Corporate Debtor. Petition admitted - moratorium declared.

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• 2020 (9) TMI 745 - NATIONAL COMPANY LAW TRIBUNAL , MUMBAI BENCH
  
  Unauthorized and illegal withdrawal of amount made by the ex-management of the Corporate Debtor - CIRP process - Section 66(1) of I&B Code - HELD THAT:- This Bench does not have any doubt that in terms of Section 66(1) of the Code, the Respondents No. 1, 2 and 3, during the Corporate Insolvency Resolution Process period, carried out these transactions with intent to defraud the creditors of the Corporate Debtor. This case is fully covered under Section 66(1) of the Code. This Bench is also satisfied that the ex-directors were aware of the Moratorium Order of 17.09.2019 under Section 14 of the Code. This Bench finds the ex-directors of the Corporate Debtor Company to be guilty of willful disobedience of the Order of this Bench dated 17.09.2019. The Respondents No. 1 and 2, i.e., the ex-directors of the Corporate Debtor being found viol....... + More

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• 2020 (9) TMI 744 - NATIONAL COMPANY LAW TRIBUNAL , MUMBAI BENCH
  
  Extension of time granted to the Applicant to make deposit - restraint on Liquidator of the Respondent Company from alienating the property and/or creating any interest of whatsoever nature - HELD THAT:- The liquidator was present during the virtual hearing and did not raise any objection for the request made by the Applicant. This Bench considering the extraordinary situation created by the Covid-19 Pandemic is inclined to grant time for the Applicant to make the payment. This Application was filed on 26/06/2020 - Even though the time sought by the Applicant had already elapsed, considering the overall situation, the Applicant is allowed to make the balance payment along with interest at the rate of 12% per annum within 30 days from the date of this order. Application allowed.

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• 2020 (9) TMI 743 - INSOLVENCY AND BANKRUPTCY BOARD OF INDIA
  
  Disciplinary proceedings against the Insolvency Professional (IP) who is member of ICSI - Assignment of Liquidator - alleged contraventions of sections 208(2)(a) and 208(2)(e) of the Insolvency and Bankruptcy Code, 2016 (Code), regulations 7(2)(a), 7(2)(h) and 7A of the IBBI (Insolvency Professionals) Regulations, 2016 (IP Regulations) read with clauses 1, 2, 11, 12 and 14 of the Code of Conduct contained in the First Schedule of the IP Regulations - inadvertent error or not - voluntary liquidation process - rejection of AFA. HELD THAT:- From Regulation 7A of IP regulations, it is clear from the said Regulation that one of the essential conditions for undertaking any assignment by an IP is that he should have a valid AFA which is issued by the IPA with which he is enrolled. In other words, without AFA, an IP is not eligible to undertake a....... + More

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• 2020 (9) TMI 718 - NATIONAL COMPANY LAW TRIBUNAL NEW DELHI BENCH
  
  Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- It is admitted fact that the Corporate Debtor has not sent the reply as required under Section 8(2) of the IBC, 2016, according to which, the Corporate Debtor shall within a period of 10 days of the receipt of demand notice or copy of invoices mentioned in sub section (1) bring to the notice of the Operational Creditor, the existence of dispute or record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoice in relation to such disputes. Before initiating a proceeding under Section 9, the operational-creditor is required to fulfil the conditions mentioned under Section 8(1), if he has not sent the demand notice as required under S....... + More

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• 2020 (9) TMI 702 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
  
  Settlement agreement - withdrawal of CIRP - HELD THAT:- Indeed, the settlement arrived at between the Parties are not in dispute. Further, pursuant to the ‘Memorandum of Understanding’ dated 01.09.2020, it is brought to the notice of this Tribunal that the 1st Respondent/Parsvnath Developers Ltd. had received the Demand Draft bearing No. 004069 for ₹ 12/- Lakhs from the Appellant. Added further, the Resolution Professional, Mr. Naresh Kumar Munjal informs this Tribunal that he is yet to receive the remuneration for the month of August and September, 2020 and in respect of the ‘Miscellaneous Expenses’, he had raised his invoice to an extent of ₹ 53,000/- etc. - In view of the fact that, the ‘Memorandum of Understanding’ dated 01.09.2020, was reached between the Parties culminating in settleme....... + More

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• 2020 (9) TMI 701 - NATIONAL COMPANY LAW TRIBUNAL , MUMBAI BENCH
  
  Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- The application made by the Operational Creditor is complete in all respects as required by law. It clearly shows that the Corporate Debtor is in default of a debt due and payable, and the default is in excess of minimum amount of one lakh rupees stipulated under section 4(1) of the IBC. Therefore, the default stands established and there is no reason to deny the admission of the Petition. In view of this, this Adjudicating Authority admits this Petition and orders initiation of CIRP against the Corporate Debtor. Application admitted - moratorium declared.

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• 2020 (9) TMI 700 - NATIONAL COMPANY LAW TRIBUNAL , MUMBAI BENCH
  
  Attachment of property of Corporate Debtor - Maharashtra Protection of Interest of Depositors Act, 1999 - HELD THAT:- The assets of the Corporate Debtor have been wrongly attached vide MPID order dated 01.02.2012. The MPID order sought to attach the properties of Dhanlaxmi cooperative society and the name of the Corporate Debtor is not notified in the MPID notification, but the properties of the Corporate Debtor have been attached and sealed. Further due to illegal attachment of properties, the resolution professional could not take control of the said properties, appoint valuer etc. to perform his duties under the I&B code. The order of attachment under the notification dated 01.02.2012 under the MPID Act to the extent of property Shop No. 21, Ground Floor, Bonanza Arcade, Amboli, S. V. Road, Andheri West, Mumbai-400058 is set aside. Application allowed.

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• 2020 (9) TMI 699 - NATIONAL COMPANY LAW TRIBUNAL , MUMBAI BENCH
  
  Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - pre-existing dispute or not - Operational Debt due and payable by the Corporate Debtor - Whether the invocation of the arbitration clause between the withdrawal of the first petition vide order dated 13.03.2018 and the issue of the second demand notice dated 23.08.2018 to the Corporate Debtor should be treated as “pre-existing dispute” within the meaning of section 5(6) of the IBC? - HELD THAT:- The invocation of the arbitration clause by the Corporate Debtor between 13.03.2018 (when the first Company Petition bearing CP (IB) No.1823/2017 was dismissed as withdrawn with liberty), and 23.08.2018 (when the second demand notice came to be issued by the Operational Creditor to the Corporate Debtor), is of no consequence an....... + More

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