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Insolvency and Bankruptcy - Case Laws

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• 2020 (1) TMI 678
  
  Maintainability of application - initiation of CIRP - Corporate debtor failed to make repayment - time limitation - Section 7 of the I&B code - HELD THAT:- In the present case, there is nothing on record to suggest that the ‘Corporate Debtor’ acknowledged the debt within three years and agreed to pay the debt. The application moved by ‘Corporate Debtor’ to restructure the debt or payment of the interest, does not amount to acknowledgement of debt. There is nothing on record to suggest that the ‘Corporate Debtor’ or its authorized representative by its signature has accepted or acknowledged the debt within three years from the date of default or from the date when the account was declared NPA, i.e., 29th September, 2015 - Any dues payable, even if acknowledged after three years of limitation period, ....... + More

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• 2020 (1) TMI 677
  
  Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment - application rejected on the ground of existence of dispute prior to issuance of SCN - HELD THAT:- It is an admitted fact that the Appellant failed to supply coal as per the P.O. dated 9.8.2016. It is not in dispute and in view of the requirement, the Respondent had placed Purchase Order on one Trona Minerals India Pvt. Ltd. vide Purchase Order no. 4400000028 dated 19.09.2016 for supply of 3000 MT of Coal. The stand of the Respondent is that the Appellant had failed to supply coal as ordered on 09.08.2016 and in view of necessity, they had placed and purchased coal from Trona Minerals India Pvt. Ltd. and raised a Debit Note on the Appellant in accordance with clause-8 of the Terms and Conditions as specifically mentioned along with the Purchas....... + More

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• 2020 (1) TMI 593
  
  Winding up petition - Order and direction against the Prothonotary & Senior Master of this Court to encash the bank guarantee and to receive the funds in his account - whether the bank guarantee furnished by the respondent pursuant to an order passed by this Court on 5th April, 2017 could be encashed or not in view of the order passed by the National Company Law Tribunal under section 14(1) of the Insolvency & Bankruptcy Code, 2016 and thereafter if encashed, the applicant could apply for release of the amount lying with the office of the learned Prothonotary & Senior Master of this Court or not? HELD THAT:- It is not in dispute that in this company application the applicant had prayed for an order and direction against the learned Prothonotary & Senior Master of this Court to encash the bank guarantee and to receive the f....... + More

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• 2020 (1) TMI 592
  
  Maintainability of application - initiation of CIRP - Section 9 of Insolvency and Bankruptcy Code, 2016 - period of limitation for claiming outstanding dues - HELD THAT:- The Insolvency and Bankruptcy Code was enacted only on 2016. Till such time we failed to understand as to why the petitioner has not made any attempt to claim the amount due and payable to it. The petitioner has not stated whether there is any pre-existing dispute between the petitioner and the respondent. Hence, when the documents filed before us are not reasonably proved whether the authorised signatory is backed by Board Resolution to sign this balance of confirmation is not proved. No facts, details and transactions during the period are also enclosed. It is settled position of law that the provisions of Code cannot be invoked for recovery of outstanding alleged amou....... + More

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• 2020 (1) TMI 591
  
  Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment - existence of debt and dispute - HELD THAT:- Admittedly, the Corporate Debtor had made payments at steps. There was no payment of some amounts, as neither draft red-herring prospectus was filed with SEBI, nor the IPO offerings were made - Since these milestones were not achieved, no invoices were also raised by the Petitioner by 15.09.2015 i.e., on completion of 12 month's period. Further, since the IPO was not issued within 12 month's period, the Petitioner should have raised invoice on the basis of 'standard hourly rate' as provided in clause 2.3 to a maximum of the fixed fee. However, no such invoice was raised. The operational creditor has also not clearly placed on record any documentary proof that clearly states the amoun....... + More

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• 2020 (1) TMI 473
  
  Maintainability of application - initiation of CIRP - Corporate debtor failed to make repayment - pre-existing dispute or not - HELD THAT:- There is a suit pending with regard to the same claim and parties have agreed to settle the matter. In view of the fact that there was a pre-existence of dispute and parties have settled the matter before the constitution of the 'Committee of Creditors', we set aside the impugned order dated 18th October, 2019 - the 'Corporate Debtor' (company) is released from all the rigours of law and is allowed to function independently through its Board of Directors from immediate effect. The 'Interim Resolution Professional' will hand over the assets and records to the Board of Directors. Appeal allowed.

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• 2020 (1) TMI 472
  
  Service of notice - initiation of CIRP - Whether the demand notice issued U/S 8 of the I & B Code 2016, against the corporate debtor, for the dues of sister concern/group company, can be treated as a valid notice? - HELD THAT:- Admittedly invoices have been issued in the name of 'M/s Flywheel Logistics Pvt. Ltd.'. It is also on record that 'M/s Flywheel Logistics Pvt. Ltd.' and 'M/s Flywheel Logistics Solutions Pvt. Ltd' are different 'Corporate Entities', having deferent CIN Numbers and registered addresses - it is clear that the Respondent No 1 Applicant / 'Operational Creditor' has no right to claim dues, relating to the invoices issued against 'M/s Flywheel Logistics Pvt. Ltd.', from the corporate debtor M/s 'Flywheel Logistics Solutions Pvt. Ltd.' i.e. FLSPL, the Respondent ....... + More

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• 2020 (1) TMI 471
  
  Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment - total debt due and payable - only contention raised is that the rates of transportation were much higher than charged by others and that there was connivance by some employees - HELD THAT:- There is no denial that they did not avail of the Operational Creditor's services for transportation. There is only a reference that charges were quite higher. However, there is no repudiation of the agreement dated 28.7.2015, 14.08.2015 and 01.06.2016 at any time - There is only an attempt to clutch at straws by saying that there was some connivance on the part of some of the Corporate Debtor's employees. However, even if this is accepted at face value, there may only be various other legal options for the Corporate Debtor to proceed against the e....... + More

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• 2020 (1) TMI 470
  
  Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment - existence of debt and dispute or not - HELD THAT:- The procedure in relation to the initiation of Corporate Insolvency Resolution Process by the "Financial Creditor" is delineated under Section 7 of the Code, wherein only "Financial Creditor" / "Financial Creditors" can file an application. As per Section 7(1) of the Code, an application could be maintained by a Financial Creditor either by itself or jointly with other Financial Creditors. The expressions "Financial Creditor" and "Financial debt" have been defined in Section 5 (7) and 5 (8) of the Code and precisely "Financial debt" is a debt along with interest, if any, which is disbursed against the consideration for time value of ....... + More

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• 2020 (1) TMI 469
  
  Rejection of Resolution plan - Section 33(2) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- It was brought to the knowledge of the CoC members that the Resolution Plan was rejected and the 270 days period was going to expire on 22.04.2019. There was no possibility of resolution taking place in Emgee Cables and Communications Limited. Therefore, the CoC unanimously passed a resolution to liquidate the Corporate Debtor. This Tribunal is constrained to order for liquidation of the corporate debtor and in such background the corporate debtor stands liquidated with the incidence of liquidation to follow, on and from the date of this order in terms of the provisions of the Insolvency and Bankruptcy Code, 2016 and more particularly as given in Chapter III of the Insolvency and Bankruptcy Code, 2016 and also in terms of Insolvency and Bankruptcy (Liquidation Process) Regulations, 2017.

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• 2020 (1) TMI 468
  
  Maintainability of application - initiation of CIRP - Corporate debtor failed to make repayment - existence of dispute or not - time limitation - HELD THAT:- It has been concluded from the contentions of the corporate debtor that the corporate debtor has tried to create and raise a pre-existing dispute by asserting that the entire gamut of dispute is amongst the applicant and the corporate debtor with respect to the quality of the product being rendered by the applicant and by annexing the debit notes which were never issued to the applicant prior but were raised only after the issuance of the section 8 demand notice. The corporate debtor has not placed on record any document which exhibits the plausible dispute between the parties. Thus, there is no merit in the so-called dispute raised by the corporate debtor in reply to Section 8 deman....... + More

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• 2020 (1) TMI 349
  
  Maintainability of application - initiation of CIRP - Corporate Debtor defaulted in making repayment - existence of debt and default or not - Section 9 of Insolvency and Bankruptcy Code, 2016, R/w Rule 6 of Insolvency & Bankruptcy (Application to the Adjudicating Authority) Rules, 2016 - HELD THAT:- There is no dispute with regard to filing of application on behalf of the corporate debtor under section 10 of the I&B Code. Admittedly, it is not the case of the corporate debtor that it had paid the agreed fee to the operational creditor. However, the corporate debtor is contending that certain obligations to be discharged in respect of agreement dated 27.03.2018. Said obligations, whatever they may be, have no connection to the obligation discharged under the agreement dated 02.05.2018. The alleged dispute, if any, in respect of agr....... + More

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• 2020 (1) TMI 347
  
  Maintainability of petition - initiation of CIRP - Corporate Debtor defaulted in making repayment - Section 7 of the Insolvency and Bankruptcy Code, read with Rule 4 of AAA Rules - it is the case of Corporate Debtor that proceedings was initiated against Corporate Debtor by Financial Creditor only basing on the circular issued by RBI dated 12.02.2018 - HELD THAT:- The Corporate Debtor has mainly relied on JLF meeting held on 06.09.2018. We have gone through the details of the minutes of JLF meeting held on 06.09.2018. It is very clear that the Financial Creditor mainly relied on the guidelines given in the circular of RBI dated 12.02.2018 and timelines provided thereunder and as resolution plan could not be implemented, therefore, the Financial Creditor to approach NCLT as per the circular of RBI. So, there is no other reason to refer the....... + More

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• 2020 (1) TMI 346
  
  Maintainability of application - initiation of CIRP - Corporate Debtor defaulted in making repayment - existence of debt and dispute or not - HELD THAT:- The dispute raised by the Corporate Debtor does not fall within the definition of dispute as stated in preceding paragraphs, and the plea of pre-existing dispute is nothing but tenuous defense, created by Corporate Debtor against the Operational Creditor without any merit, which appears in after thought as a counter to defeat the claim of the Operational Creditor. The Registered Office of the Corporate Debtor is situated in Jaipur and therefore this Tribunal has jurisdiction to entertain and try this application. The present Application is complete and the Applicant is entitled to claim its dues, establishing the default in payment of the Operational Debt beyond any reasonable doubt - Application admitted - moratorium declared.

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• 2020 (1) TMI 345
  
  Maintainability of application - initiation of CIRP - Corporate debtor defaulted in making repayment - existence of debt and default or not - time limitation - HELD THAT:- The present application has been filed Under Sec 7 of the IB code, the applicant has entered into an agreement with the Corporate Debtor for purchase of the flat and accordingly, as per the Schedule shown in Column No. 1 of Part IV, the applicant made payment to the Corporate Debtor and the total amount as per the Schedule shown is ₹ 3,61,512. Time Limitation - the applicant claims that his debt is within time prescribed under the law - HELD THAT:- Mere plain reading of the provisions shows that it is related to the "possession of immovable property or any interest therein based on title", whereas the case in hand, is the case, where the applicant has pa....... + More

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• 2020 (1) TMI 305
  
  CIRP proceedings - scope of claim and counter claim - whether a counter claim can proceed during the period of 'Moratorium' while the Adjudicating Authority (National Company Law Tribunal) allowed the 'Corporate Debtor' to pursue the claim before the Arbitral Tribunal? HELD THAT:- It is true that the 'Counter-claim' made by the 'Corporate Debtor' is a 'separate proceedings' than that of the 'Arbitral proceedings' filed by the 'Claimant'. However, they cannot be segregated and can go on simultaneously together. The claim of the Respondent cannot be determined by the 'Arbitral Tribunal' during the period of 'Moratorium' passed by the Adjudicating Authority. In such situation, as it cannot be decided as to what amount can be taken, we hold that the 'counter-claim'....... + More

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• 2020 (1) TMI 304
  
  Maintainability of application - initiation of CIRP - Corporate Debtor committed default in paying financial debt - debt due and payable - Section 7 of Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The Corporate Debtor is served with the notice of this application. One of the directors of the Corporate Debtor, Mr. Arvind Bhawsinghka appeared on behalf of the Corporate Debtor and filed affidavit-in-reply dated 20.08.2019. The Corporate Debtor admitted the debt and default and also, they contended that time and again they have requested the Financial Creditor to restructure the loan but their request was not acceded to. The Corporate Debtor admitted the debt to be payable to the Financial Creditor and it is default on their part. These are only facts being considered for admission of the Corporate Debtor in CIRP under Section 7 of I & B Code, 2016. The application is defect free. Application admitted - moratorium declared.

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• 2020 (1) TMI 303
  
  Maintainability of application - initiation of CIRP - Corporate Debtor defaulted in paying an amount - existence of debt and default or not - HELD THAT:- Ever since, this Corporate Debtor having not paid the award amount despite the Operational Creditor giving additional time to settle the dues and reminded the Corporate Debtor to pay the claim amount to the Operational Creditor, finally, when no payment came from the Corporate Debtor, this Operational Creditor issued Section 8 Notice on 12.01.2019 by hand demanding payment of the amount aforesaid. On receipt of Section 8 notice, on the same day, i.e. on 12.01.2019, the Corporate Debtor replied admitting the liability that this Corporate Debtor owed to pay ₹ 5,71,515 to the Operational Creditor, but sought additional time to pay this claim to the Operational Creditor. This Operation....... + More

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• 2020 (1) TMI 277
  
  Approval of Resolution Plan - requirement on the part of ‘Resolution Applicants’ to obtain approval of the Competition Commission of India prior to approval by the ‘Committee of Creditors’ - compliance with the mandatory requirement under the proviso to Section 31(4) of the Insolvency and Bankruptcy Code, 2016. HELD THAT:- The proviso to sub-section (4) of Section 31 of the ‘I&B Code’ which relates to obtaining the approval from the ‘Competition Commission of India’ under the Competition Act, 2002 prior to the approval of such ‘Resolution Plan’ by the ‘Committee of Creditors’, is directory and not mandatory. It is always open to the ‘Committee of Creditors’, which looks into viability, feasibility and commercial aspect of a ‘Resolution Plan&rsquo....... + More

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• 2020 (1) TMI 276
  
  Status of the appellant - Auction - Lien/ charge of the appellant on the goods sold and services rendered for the corporate debtor - security interest - whether appellant is a secured creditor or unsecured Operational Creditor? - cancellation of auction or not. Whether liquidator has complied with the order of the Tribunal? - HELD THAT:- It is to be noted that in Form C both monetary claim and claim of security interest were made. Further, appeal filed by the appellant was allowed and in para I & Il of the order, wherein it has been specifically directed that the liquidator was to pass an appropriate reasoned order "by reiecting or allowing/ partly allowing the claim of the appellant as per Rules" and to decide the claim within 30 days from the date of this order. The approach of liquidator in deciding the claim was also not....... + More

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