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Insolvency and Bankruptcy - Case Laws
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- 2022 (1) TMI 870 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , NEW DELHI
Approval of Resolution Plan - statutory dues (tax liability) - difference made in the Code with regard to statutory dues and other claims (Operational Creditors) pursuant to a contract or not - any prior approval for extinguishing statutory dues is required or not - wisdom of the COC can be interfered with or not - COC has complied with the rules and regulations of the Code or not - Section 31 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The Appellant being Government of India and the statutory dues payable to the Central Government is covered under ‘Operational Debt’ as defined in Section 5(21) of the Code, 2016 therefore, the Appellant fall under the category of Operational Creditor and its statutory dues fall under the category of Operational Debt. Therefore, for all the purposes the claim of the Appellant come....... + More
- 2022 (1) TMI 869 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Seeking to intervene and object to the Appeal filed by the Appellant - Rule 11 of the NCLAT Rules, 2016 read with Rule 31 of the NCLAT Rules, 2016 - HELD THAT:- It appears that due to order dated 28.10.2021 entire CIRP has come to standstill and there is no progress in settlement outside the court in the matter and only oral assurance of different dates was given by the Learned Counsel for the Appellant and Respondent. This Bench of this Tribunal invoking inherent power and hereby ordered to vacate the interim order dated 28.10.2021 passed by this Bench in Company Appeal (AT) (Insolvency) No. 884 of 2021 whereby the constitution of COC was stayed - Application disposed off.
- 2022 (1) TMI 868 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Oprational creditor - pre-existing dispute - last payment was made by the ‘Corporate Debtor’ on 07.11.2013, the Demand Notices were issued on 30.08.2017 and on 25.07.2018 and the Application was filed on 05.10.2018 - bar of time limitation - C Forms/Sales Tax declaration were given for the entire supply portions - liability and admission as stipulated under Section 18 of the Limitation Act, 1963 - HELD THAT:- In the instant case, the correspondence on record evidences that there indeed was a delay in the performance of the Contract and the final Notice was issued on 01.12.2013 by the ‘Corporate Debtor’ to complete the works. The first Respondent/‘Operational Creditor’ stated in their Reply that ....... + More
- 2022 (1) TMI 811 - SUPREME COURT
Eligibility of persons to be resolution applicant - Interpretation of Statute - Section 29A(h) of the Insolvency and Bankruptcy Code, 2016 - time limitation - HELD THAT:- Section 29A is a facet of the Code, and therefore, this provision has to be read with the main objective enshrined thereunder. The objective behind Section 29A of the Code is to avoid unwarranted and unscrupulous elements to get into the resolution process while preventing their personal interests to step in. Secondly, it consciously seeks to prevent certain categories of persons who may not be in a position to lend credence to the resolution process by virtue of their disqualification. Section 29A(h) of the Code creates one more category of persons not being eligible to be a resolution applicant. Other than the persons mentioned thereunder, there may not be any disquali....... + More
- 2022 (1) TMI 810 - CALCUTTA HIGH COURT
Review order - Maintainability of appeal - appeal maintainable against the orders challenged in the writ petition under Section 61 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as ‘the Code’) and not under Section 421(1) of the Companies Act, 2013 - HELD THAT:- There is no scope of review of the order merely on the basis of the finding that an appeal lay under Section 421(1) of the 2013 Act. It is well-settled that allegations on fact as to what transpired in Court on certain particular dates have to be levelled, for the ends of propriety, before the said Court itself, where the irregularity allegedly occurred, preferably before the same Presiding Officer. A challenge before a superior forum, including under Article 226 of the Constitution of India, is illusory in nature, since it is most appropriate tha....... + More
- 2022 (1) TMI 774 - SUPREME COURT
Validity of Winding up order - breach of the mandatory requirement of advertisement before ordering winding up - bar of time limitation - estoppel from pleading fraud - violation of the principles of natural justice due to the denial of permission for cross examination - erroneous findings of fact - application of incorrect standard of proof on the question of fraud - erroneous conclusions regarding the consequences of fraud, assuming that fraud was established - winding up under clause (c) of Section 271 (directly on the ground of fraud) by any person authorised by the Central Government by notification or winding up under clause (e) of Section 271 (on the ground that it is just and equitable to wind up) in terms of Section 224(2)(a) on the basis of a report of investigation under Section 213(b). Applicability of provisions of IBC - HELD....... + More
- 2022 (1) TMI 773 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Validity of distribution made by the Appellant as per the provision of Insolvency and Bankruptcy Code 2016 - revival of Corporate Debtor - HELD THAT:- In the present case, there is an order of attachment under ‘Prevention of Money Laundering Act’. Though the Adjudicating Authority vide its order dated 22.07.2020 has allowed the Liquidator to proceed with the sale of the assets; but the operation of the said order has been stayed by the Hon’ble Calcutta High Court vide order dated 20.11.2020 in WP No. 7962/2020 filed by the ED. In view of the same, the sale of the assets of the CD is not possible at this stage and due to legal intricacies, it is absolutely uncertain as to when the Liquidator will be able to realise the assets of the CD by disposing the same as a going concern. In these circumstances, if the impugned order....... + More
- 2022 (1) TMI 771 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Maintainability of application - initiation of CIRP - Corporate debtor failed to make repayment of its dues - Operational Creditors - time limitation - HELD THAT:- The present is a case where Corporate Debtor in spite of several notices issued by the Adjudicating Authority did not appear to contest the Application. The date of default having been specifically mentioned in the Demand Notice as well as in the Section 9 Application as 26.11.2018, there was no material with the Adjudicating Authority to take any contrary view regarding the date of default. The observations of the Adjudicating Authority that last invoice dated 08.07.2017 which does not appear to be correct which is in altogether different format as compared to other 9 invoices. The mere fact that the invoice dated 08.07.2017 was sent in different format was not any factor on w....... + More
- 2022 (1) TMI 770 - NATIONAL COMPANY LAW TRIBUNAL , AHMEDABAD BENCH
Approval of the Resolution Plan along with the Scheme of Amalgamation - Section 30(6) read with Section 31 of Insolvency & Bankruptcy Code, 2016 (IBC, 2016) read with Regulation 39(4) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 - HELD THAT:- It is noted that Form H has been filed by Resolution Professional wherein all information/details as regard to conduct of CIRP as well as process adopted for Resolution Plan has been given. The Resolution Applicant has proposed to pay the financial creditor ₹ 77,10,00,000/- against its total admitted claim of ₹ 95,03,71,082/-. The amount of ₹ 12,32,44,348/- has been proposed in the Resolution Plan to pay to the Operational Creditor against the total admitted claim of ₹ 12,32,44,348/- including the S....... + More
- 2022 (1) TMI 769 - NATIONAL COMPANY LAW TRIBUNAL , AHMEDABAD BENCH
Seeking direction to Resolution Professional of Afcan Impex Private Limited and member of CoC to allow submission of the Resolution Plan by the applicant in the matter of Afcan Impex Private Limited - Section 60(5) read with Section 30 of the Insolvency and Bankruptcy Code, 2016 read with Rule 11 of the National Company Law Tribunal Rules, 2016 - HELD THAT:- The respondent No. 1 published Form-G on 09.06.2021 inviting expression of interest for which the last date was 07.07.2021 and the last date for submission of the resolution plan was 16.08.2021 However, the applicant expressed its willingness to submit the resolution plan on 30.09.2021 which is much beyond the last date for submission of the resolution plan - It is further noted that the CoC approved the resolution plan with 100% voting on 01.10.2021 and the application before this Ad....... + More
- 2022 (1) TMI 768 - NATIONAL COMPANY LAW TRIBUNAL , CHENNAI BENCH
Seeking sale as a going concern - Section 35(1) (f) & 60(5) of the Insolvency & Bankruptcy Code, 2016 r/w Reg. 32(f) and 32A of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations & Rule 11 of the NCLT Rules, 2016 - HELD THAT:- Since the interests of all the stakeholders have been taken care of and the Secured Financial Creditor (Erstwhile CoC) has also approved, it was submitted that this Tribunal may be pleased to pass necessary orders for sale of the corporate debtor as going concern. IA/463/C HE/2021 is the amendment Application seeking modification in the prayers in IA/199/CHE/2021 and the same is hereby allowed. The Liquidator is permitted to sell the assets of the Corporate Debtor as a going concern to the Respondent as per Regulation 32A of Insolvency and Bankruptcy Board of India (Liquidatio....... + More
- 2022 (1) TMI 721 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Appointment of the Liquidator or restraining the Liquidator from discharging the employees etc. - Section 61 of the ‘Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The CoC agreed to accept the EOI of SREI and further extended the date of submission of the Resolution Plan from 02.03.2019 to 25.03.2019. However, SREI submitted the Resolution Plan on 16.04.2019 which was rejected by the CoC on 07.05.2019 by approx.98% vote. SREI went on improving the proposal just by a minuscule amounts and finally CoC decided to put the resolution plan to vote on 24.07.2019. However, the Resolution Plan was rejected by the CoC by approx.71% of the vote and rejection was communicated to the SREI. On 25.07.2019, SREI further sent a standalone financial offer raising its proposal from ₹ 395 Crore to ₹ 401 Crore - The issue was why we are ....... + More
- 2022 (1) TMI 720 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Non-performing assets - Financial Creditors - prohibition under the doctrine / principle of “Nullssuss Commodum Capere Postest De Injuria Sua Propria” - existence of debt and dispute or not - HELD THAT:- It is a settled law that default is committed first and second stage comes as NPA, if it is not regularized in between the period of default and within 90 days thereafter. The Code is a complete Act itself. What Section 7 of the Code requires that a Financial Creditor by filing an application in the requisite format can initiate CIRP against the CD when a Debt is due and payable in law and has not been paid and a default has occurred, the Adjudicating Authority is to initiate CIRP if, he finds default recorded in the I....... + More
- 2022 (1) TMI 719 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Liquidation/sale proceedings under process - seeking to allow the Liquidator to keep windmill assets of the Corporate Debtor outside the sale purview of Liquidation Estate - seeking to allow the liquidator to distribute the sale proceeds from the sale of windmill - Liquidator also seeking to get himself impleaded as a party - Whether the title of windmill asset has passed to Appellants is sub-judice before the Calcutta High Court? - HELD THAT:- It is apparent that whether the title of windmill assets has been passed to the Appellants is to be decided in the Civil Suit which is pending before the HC. Thus, we are unable to convince with the argument of Ld. Sr. Counsel that the Adjudicating Authority has wrongly concluded that the Civil Suit is for determining rights of the parties over the windmill assets. Whether the order for keeping the....... + More
- 2022 (1) TMI 718 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Seeking replacement of Liquidator - grounds pleaded in the appeal for replacing the liquidator are that the liquidator did not carryout the process of liquidation insofar as sale of assets through the e-auction is concerned, in a fair and transparent manner - it is also alleged that the liquidator did not discuss the process and details of liquidation with the stakeholders as well as Appellants, who are also stakeholders in the liquidation proceedings - HELD THAT:- In the present case, from third meeting of SCC onwards, it was decided that the Corporate Debtor or its business is not to be sold as a going concern. Hence, a period of prescribed time limit for completion of liquidation of 365 days should be counted from the date of 3rd meeting of SCC held on 9.11.2020. Since there was no “lockdown” enforced by the authorities in ....... + More
- 2022 (1) TMI 717 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH, NEW DELHI
Seeking exclusion of 87 days from the calculation of 180 days (CIRP period) - requirement of approval of the CoC - Section 12 of Insolvency & Bankruptcy Code, 2016 - whether the approval of the CoC under Section 12(2) of the Code is mandatory for seeking ‘exclusion of time” even if it is sought on grounds of lockdown/time lost during the period of any ‘Stay’/Status Quo /or for any other reason? - HELD THAT:- Section 12(2) speaks about ‘extension of the time’; Regulation 40C of the Regulations speaks about ‘exclusion of time’; the fact that the Adjudicating Authority had exercised its Discretionary Powers under Rule 11 of the NCLT Rules, 2016, that the period sought for excluding the time period lost is based on the reasons mentioned in the table in para 10; the fact that had this period ....... + More
- 2022 (1) TMI 715 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH, NEW DELHI
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - rejection of Operational Debt - existence of debt and dispute or not - HELD THAT:- There is no dispute that before issuance of notice in the Company Petition filed by the Appellant, the principal amount as claimed by the Appellant of ₹ 18,07,373/- was paid on 15th December, 2018. The claim of interest was refuted in the reply filed before the Adjudicating Authority by the Respondent. It was specifically a case of the Respondent that there was no agreement between the parties to make any payment of interest and the claim of interest by the Appellant is mala-fide and without any basis. In the present case, when the Corporate Debtor in its reply to Section 9 Application has clearly and categorically deni....... + More
- 2022 (1) TMI 714 - NATIONAL COMPANY LAW TRIBUNAL , NEW DELHI BENCH
Seeking withdrawal of application for initiation of CIRP - maintainability of case in view of the settlement and in view of the provisions of section 10A of the IBC, 2016 - HELD THAT:- No application for initiation of CIRP of a Corporate Debtor under section 7,9 and 10 of IBC, 2016 shall be filed for any default arising on or after 25th March, 2020 along with that it was also clarified that provisions of this section shall not apply to any default committed under the said sections before 25th March, 2020. Whereas, in the present case in hand the main matter has been filed under section 7 of IBC, 2016 and the default as well as the filing of the application under section 7 has taken place prior to 25th March 2020. The applicant's contention that as both the parties entered into a settlement therefore, there has been novation of the MOU....... + More
- 2022 (1) TMI 713 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH, NEW DELHI
Implementation of approved Resolution Plan - delay because of the time for litigation and in making initial payments as required in the approved Resolution Plan - grant of more time for extension of CIRP for invitation of fresh EOIs or liquidation of the Corporate Debtor, in the event the Respondent No. 1 is found in default of implementation of the Resolution Plan - HELD THAT:- Effective implementation of the Successful Resolution Plan started only after 5.4.2019, when Hon’ble Supreme Court dismissed the appeal of former promoter/directors of the Corporate Debtor. It is quite apparent that the bank guarantee submitted by Respondent No. 1 was not enforced properly because it was not submitted in SWIFT mode. Respondent No. 1 has claimed that it is not responsible for non-enforceability of the Bank guarantee because it was due to the ....... + More
- 2022 (1) TMI 712 - NATIONAL COMPANY LAW TRIBUNAL , AMARAVATI BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor committed default in making payment to the Financial Creditor in view of the term loan and working capital facilities availed by them - Financial Creditors - existence of debt and dispute or not - HELD THAT:- The counsel for the Financial Creditor submits that since the debt is admitted, the defences taken by the Corporate Debtor cannot be appreciated. The counsel for the Corporate Debtor also does not raise any serious argument against the said contention. He only makes an attempt to submit that the inability to pay was due to the pandemic and due to the incidents mentioned in the counter. When debt is admitted, the reasons for the inability to pay, cannot help the Corporate Debtor however valid they are. It is for the Corporate Debtor to settle the matter with Financ....... + More
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