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Insolvency and Bankruptcy - Case Laws
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- 2021 (2) TMI 1157 - DELHI HIGH COURT
Territorial Jurisdiction to entertain the petition - Seeking enforcement and execution of partial Award - Foreign Award or not - Jurisdiction of Courts where the Award-debtor resides or where the assets, which are subject-matter of the Award are situated - Whether this Court has territorial jurisdiction to entertain the present petition? - HELD THAT:- The term “subject-matter of the arbitration” cannot be confused with “subject-matter of the suit”. The term “subject-matter” in Section 2(1)(e) is confined to Part I. It has a reference and connection with the process of dispute resolution. Its purpose is to identify the courts having supervisory control over the arbitration proceedings. Hence, it refers to a court which would essentially be a court of the seat of the arbitration process. In our opinion, t....... + More
- 2021 (2) TMI 1151 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Seeking direction to Appellant not to demand the release of bank guarantee amount from the Respondent No. 2, in view of the moratorium under Section 14 of the Insolvency and Bankruptcy Code, 2016 (IBC) against the ‘M/s J.P. Engineers Private Limited.’ (Corporate Debtor) Respondent No. 1 - HELD THAT:- Admittedly the Appellant had entered into an agreement for sale and purchase of aluminium products for the period 01.04.2019 to 31.03.2020 with J.P. Engineering’s (Corporate Debtor). For ensuring the payments the Respondent No. 2 issued bank guarantee dated 22.04.2019 for an amount of ₹ 1 Crores 60 Lakhs in favour of the Appellant. The Respondent No. 2 vide letter dated 21.10.2019 extended the period of guarantee till 21.04.2020. The Appellant on 03.03.2020 sent a letter to the Respondent No. 2 for invocation of the ba....... + More
- 2021 (2) TMI 1147 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , NEW DELHI
Maintainability of application - initiation of CIRP by Operational Creditors - Adjudicating Authority has dismissed the application under Section 9 of IBC filed by the Operational Creditor (Appellant) as being barred by limitation of time - non-fulfilment of conditions of Limitation Act - HELD THAT:- Under Sub-Section 2 of Section 14 of the Limitation Act, in computing the period of limitation, exclusion of time can be claimed when in the court of first instance or of Appeal or revision, against the same party and for the same relief, such proceedings are prosecuted in good faith which the said court is unable to entertain, from defect of jurisdiction or other cause of like nature - Admittedly, the Appellant was not party in the winding up Petition. Thus, this case may be of non-joinder of parties and not the mis-joinder of parties. The P....... + More
- 2021 (2) TMI 1096 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH NEW DELHI
Stay on various action such as sale of mortgaged property till completion of Liquidation proceedings - Scope of Liquidation estate - Appellant is aggrieved by the order of Adjudicating Authority as they have directed the Appellant Bank not to take any coercive steps such as sale of the properties mortgaged to the bank by the Respondent Companies till the completion of the Liquidation proceedings of the corporate debtor - HELD THAT:- The assets of the subsidiaries are outside the purview of liquidation estate and as such cannot form part of the liquidation estate as per section 36 (4) of IBC - The Adjudicating Authority and Appellate Authority being the creation of statute will have to ensure generally all the statutory compliances, unless it goes against the principle of natural justice and the intention of the legislature. Since, these e....... + More
- 2021 (2) TMI 1094 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , NEW DELHI
Maintainability of the Application in the name of proprietorship firm - Jurisdiction - power of proprietorship firm to file a claim - legal entity or not - HELD THAT:- Although the Adjudicating Authority in para - 15 referred to part of dispute raised by the Respondent, the Adjudicating Authority has not dealt with or decided the same. As such, in the Appeal, we are not going into the merits of the Application under Section 9 of IBC. Maintainability of the Application in the name of proprietorship firm - HELD THAT:- Section 2(f) of IBC in Judgement in the matter of NEETA SAHA VERSUS RAM NIWAS GUPTA AND ORS. [2020 (2) TMI 1442 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] where the Section provides that the provisions of this Code shall apply to partnership firms and proprietorship firm. - However, without entering into legal issue....... + More
- 2021 (2) TMI 1090 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Corporate Debtor - Operational Creditor - designing of advertisement and allied services provided - existence of dispute regarding the operational debt between the corporate debtor and operational creditor prior to the filing of application by the Operational Creditor under Section 8 of the IBC. Whether Katalist View paper Pvt. Ltd. is the Corporate Debtor and Inspired Traveller (proprietor Saurav Keshan) the Operational Creditor with regard to the designing of advertisement and allied services provided? - HELD THAT:- There is certainly no dispute regarding the quality of work and service given or any other aspect of the services provided by the Operational Creditor to the Corporate Debtor. This is also supported by the fact that ....... + More
- 2021 (2) TMI 1051 - SUPREME COURT
Contempt Jurisdiction - Approval of Resolution Plan - whether recourse to the contempt jurisdiction is valid and whether it should be exercised in the facts of this case? - HELD THAT:- Undoubtedly, the conduct of DVI has not been bona fide. The extension of time in the course of the judicial process before this Court enures to the benefit of DVI as a resolution applicant whose proposal was considered under the auspices of the directions of the Court. DVI attempted to resile from its obligations and a reading of its application which led to the passing of the order of this Court dated 18 June 2020 will leave no doubt about the fact that DVI was not just seeking an extension of time but a re-negotiation of its resolution plan after its approval by the CoC. Then again, despite the order of this Court dated 18 June 2020 rejecting the attempt ....... + More
- 2021 (2) TMI 1027 - NATIONAL COMPANY LAW TRIBUNAL , CHANDIGARH BENCH
Validity of decision of the first respondent/RP in rejecting the Expression of Interest (EOI) submitted by the applicant for submission of resolution plan in respect of the corporate debtor - Section 60(5) of the I&B Code, 2016 - undischarged insolvent and an undischarged insolvent - relevant date for excess investment in the plant and machinery of the corporate debtor - HELD THAT:- Section 240A exempted the promoters of the MSME to be the resolution applicants of the same corporate debtor for which the resolution plans are sought to be invited. Section 240A has not exempted the corporate debtor itself, even though it happens to be an MSME, to be a resolution applicant to itself. In the present case, M/s Bhandari Deepak Industries Private Limited which is the corporate debtor itself submitted EOI for submitting resolution plan to itse....... + More
- 2021 (2) TMI 1002 - NATIONAL COMPANY LAW TRIBUNAL , CHANDIGARH BENCH
Seeking extension of CIRP period by 90 days beyond 180 days after excluding the lockdown period - Section 12(2) of the Insolvency and Bankruptcy Code, 2016 read with Regulation 40 of the IBBI Regulations 2016 - HELD THAT:- The Hon'ble Supreme Court of India in Suo Motu Writ Petition IN RE : COGNIZANCE FOR EXTENSION OF LIMITATION [2020 (5) TMI 418 - SC ORDER] has held that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings. Thereafter, the Insolvency and Bankruptcy Board of India, inserted Regulation 40C to the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016....... + More
- 2021 (2) TMI 1000 - INSOLVENCY AND BANKRUPTCY BOARD OF INDIA
Professional Misconduct - Validity of accepting the assignment as the Interim Resolution Professional (IRP) in the Corporate Insolvency Resolution Process (CIRP) without holding a valid Authorisation for Assignment (AFA) from his IPA - contraventions of sections 208(2)(a) & (e) of the Insolvency and Bankruptcy Code, 2016 (Code), regulations 7(2)(a) & (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 - HELD THAT:- It is clear from the Regulation that one of the essential condition 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 any assignments or conduct various p....... + More
- 2021 (2) TMI 952 - NATIONAL COMPANY LAW TRIBUNAL , MUMBAI BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - payment / recovery of their dues such as remuneration / wages, other perquisites including terminal benefits, if any - existence of debt and dispute or not - HELD THAT:- Regulation 9 of the CIRP Regulations lays down the procedure for the workmen and employees to submit their claims before the IRP. IRP / RP is then to verify and determine the amount of the claim. The workers and employees thus are operational creditors. They are not members of the CoC of the Corporate Debtor. Regulation 22 of the IP Regulations mandates that an Insolvency Professional must ensure that the confidentiality of the information relating to insolvency resolution process, liquidation or bankruptcy process is maintained at all times. The exception to this....... + More
- 2021 (2) TMI 951 - 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 creditor - availability of alternative remedy - existence of debt and dispute or not - HELD THAT:- The Adjudicating Authority should have, in absence of any dispute contemplated under Section 8(2) having been raised by the Respondent - Corporate Debtor as a pre-existing dispute or that the claim of Appellant - Operational Creditor had been satisfied, proceeded to admit the Application, as no dispute had been raised before it, justifying its disinclination to admit the Application. Instead, the Adjudicating Authority proceeded to make out a case for the Respondent-Corporate Debtor on the premise that the Appellant-Operational Creditor has not invoked other remedies available under law. We cannot understand as to how the....... + More
- 2021 (2) TMI 947 - NATIONAL COMPANY LAW TRIBUNAL , CHANDIGARH BENCH
Maintainability of application - 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 demand notice dated 06.12.2018 was sent at the address mentioned in the master data of the corporate debtor as well as at the email address. The postal receipt along with tracking report and email sent to the corporate debtor are at Annexures-8 and 9 respectively. A compliance affidavit filed vide Diary No.862 dated 20.02.2019 showing the postal envelope vide which the demand notice was sent to the corporate debtor and same was returned with remarks “left” is at Annexure A-1. Whether the operational debt was disputed by the corporate debtor? - HELD THAT:- The respondent-corporate debtor has neither filed any reply ....... + More
- 2021 (2) TMI 944 - NATIONAL COMPANY LAW TRIBUNAL , SPECIAL BENCH, MUMBAI
Seeking for withdrawal of the Company Petition - whether the IRP is duty bound to file the Form-FA before the Adjudicating Authority within 3 days of receiving the settlement agreement? - whether the adjudicated authority can allow the withdrawal of CIRP in view of pending claims of other creditors and whether IRP has followed the letter and spirit of law as enunciated under Section 12A of the Code read with Regulation 30A (3) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. HELD THAT:- It is an undisputed fact that the Corporate Debtor settled the dues of the original Operational Creditor soon after initiation of admission of CIRP on 23.10.219 against Corporate Debtor. The IRP upon receipt of Form FA immediately within 3 days filed an application to withdraw the CIRP....... + More
- 2021 (2) TMI 931 - NATIONAL COMPANY LAW TRIBUNAL , KOCHI BENCH
Liquidation of Corporate Debtor - seeking to direct the Liquidator to arrange with prior notice to the Applicant for a sitting for a minimum period of a week to enable the Workmen to prefer their claim afresh by enlarging the period for preferring their claim for a further period of three months or till the disposal of the assets, whichever is earlier - seeking to direct the Liquidator to include the nominee of the applicant in the Stakeholders Consultation Committee Viz. Rajesh. R as workmen representative in place of the present incumbent Shri Venugopal, who is actually a management representative, within a time to be fixed by the Hon'ble Tribunal - seeking to direct the Liquidator to decide and admit the amount due to each Workmen in the same format as Annexure- W-5, irrespective of whether they have preferred a claim, based on the....... + More
- 2021 (2) TMI 926 - CALCUTTA HIGH COURT
Seeking interim order of attachment - seeking order of injunction against the defendant - HELD THAT:- In the facts of the present case, the plaintiff has claimed a decree for a sum in excess of ₹ 81 crores on the basis of an agreement under which, the defendant was to construct and deliver flats to the plaintiff. The ultimate agreement between the parties, had obliged the defendant to construct and make over unit Nos. 12W, 13W and 14W located on the 12th, 13th and 14th floor on the proposed building “Wellside Camac” to be constructed by the defendant upon the plaintiff paying the agreed consideration in respect thereof. Admittedly, the plaintiff had paid a sum of ₹ 14,06,70,000/- to the defendant. Apparently, the parties had fallen out of the contract. The parties have claimed differently with regard to the termina....... + More
- 2021 (2) TMI 901 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - clear-cut stand of the ‘Appellant’ is that the ‘Adjudicating Authority’ (National Company Law Tribunal) had failed to take into consideration that the amount paid by the ‘Applicants’ to the ‘Respondent’ was clearly of ‘Financial Debt’ - HELD THAT:- It is to be pointed out that Section 3(11) of the Code defines ‘Debt’ meaning, a liability or obligation in respect of ‘claim’ which is due from any person and includes a ‘financial debt’ and ‘operational debt’. Section 3(12) of the Code defines ‘default meaning, non-payment of debt when whole of any part or instalment of the amount of ....... + More
- 2021 (2) TMI 888 - NATIONAL COMPANY LAW TRIBUNAL INDORE BENCH
Maintainability of petition - service of notice to Corporate Debtor - Rule 49(2) of NCLT Rules, 2016 - HELD THAT:- It appears that the petition was admitted by this Adjudicating Authority after taking the proper measure to serve the notice of hearing to the Corporate Debtor. Moreover, multiple times notice has been sent to the Corporate Debtor but, the corporate Debtor refused to accept the notice which was itself sufficient to admit the matter in CIRP. Even after, evading the service of notice by the corporate debtor, this Authority has advised the operational creditor for paper publication which has already been made. As per Rule 49(2) of NCLT Rules, 2016, it is clear that averment made by the respondent for non-receipt of notice is not sustained as Corporate Debtor refused to accept the notice, Moreover, Paper publication has also been....... + More
- 2021 (2) TMI 887 - NATIONAL COMPANY LAW TRIBUNAL INDORE BENCH
Validity of CIRP order - ex-parte order - Section 60(5) of the Insolvency & Bankruptcy Code, 2016 r.w. Rule 11 of the National Company Law Tribunal Rules, 2016 - HELD THAT:- The Applicant could not produce any material on record to justify its claim for setting aside the Exparte order. Further, it is evident from the conduct of the Applicant that since beginning they remained absent and did not participating at all whish shows that the Applicant was never vigilent. Further, the applicant filed this application on 04.12.2020 after one month of passing of order by the Hon'ble NCLAT on 02.11.2020. The Corporate Insolvency Resolution Process (CIRP) has already been set in motion. During the course of hearing the Learned Counsel for the Applicant argued that the matter should be disposed of after giving an adequate opportunity. We are ....... + More
- 2021 (2) TMI 882 - NATIONAL COMPANY LAW TRIBUNAL, MUMBAI BENCH-IV
Withdrawal from CIRP on the ground that the Applicant is in the process of re-structuring the debt of the Corporate Debtor - Seeking indulgence and challenging the action of IRP, of not filing the application of withdrawal of CIRP of the Corporate Debtor - section 60(5) and section 12A of Insolvency & Bankruptcy Code, 2016 - HELD THAT:- The Bench observed that the Interim Resolution Professional has acted fair and has taken actions as per requirements of the Code judiciously. It is a settled law by the Hon'ble Supreme Court through various judicial pronouncements that Corporate Insolvency Resolution Proceedings (CIRP) are proceedings in rem. On the issue as to which event is crucial for withdrawal of CIRP, as per the law laid down by Hon'ble K.C. Sanjeev v. Easwara Pillai Kesavan Nair [2020 (8) TMI 542 - NATIONAL COMPANY LAW A....... + More
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