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Insolvency and Bankruptcy - Case Laws
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- 2019 (12) TMI 340
Direction to Liquidator to collect the amount of ₹ 5.95 Crores plus interest accrued thereon from DRT -II Chennai for being dealt with under provisions of Section 53 of I&B Code - HELD THAT:- The Adjudicating Authority failed to take the right of the Appellant of realizing the security interest and sit out of liquidation, under consideration before passing an order of liquidation and assigning the assets of the company to the liquidator. The provisions of Section 52 of the I&B code were not complied with. On the perusal of documents it can be ascertained that the corporate debtor gave as security to the appellant bank the sums it had to receive from Southern Railways for such projects so executed. The submission of the Corporate Debtor that the sums deposited by the Southern Railways, into the credit of the account in O.A. N....... + More
- 2019 (12) TMI 285
Appeal against the initiation of CIRP - default committed by the ‘Corporate Debtor’ in repayment of its dues under the loan Agreement - The ‘Corporate Debtor’ contends that on the date of filing of the petition, there was no default as contemplated in Section 7 HELD THAT:- It is pertinent to mention that the ‘Corporate Debtor’ / Applicant has filed an Affidavit dated 28th March 2019 along with letter issued by YES Bank, dated 10th August 2018, to substantiate that the amount of ₹ 18.86 crores under the loan agreement dated 1st April, 2016 was credited in its account, and it immediately paid back the entire amount to the Applicant /Respondent in two tranches, firstly on 13th April, 2016 a sum of ₹ 17 Crores and secondly on 16th April, 2016 a sum of ₹ 1.86 crores. It is also asserted tha....... + More
- 2019 (12) TMI 284
Validity of Resolution Plan - Section 30(2) of the ‘I&B Code’ - prayer for direction to the ‘Resolution Applicant’ for immediate implementation of the ‘Resolution Plan’ and to pay the interest - right to receivables - carry forward of losses of Corporate Debtor - subsidiaries, associate companies and joint ventures of the Corporate Debtor. Right to receivables - HELD THAT:- The Adjudicating Authority has directed that any amount recovered by the ‘Corporate Debtor’ due from any third party which has been written off as bad debts or which stands in the books but has not been recovered as on the date Adjudicating Authority approved, before being put to any other use, would be used to pay the balance amount to dissenting ‘Financial Creditors - the Adjudicating Authority has no jurisdic....... + More
- 2019 (12) TMI 283
Liquidation order - prayer is made seeking appropriate direction upon the ROC for accepting Form INC-28 for compliance of liquidation of company - HELD THAT:- It is a matter of record that the CP(IB) 219 of 2018 was admitted on 25.7.2018 and during the pendency of Corporate Insolvency Resolution Process, the Company is "struck off' from the register of ROC. The said fact is very much in the knowledge of then RP, now liquidator, but so far he has not taken any steps to restore the company for completing the liquidation process. Knowing fully well that when the company is "struck off," the software is not going to accept Form INC-28 in any manner. Under such circumstances, the application so filed by the liquidator seeking direction upon the ROC is a futile exercise and is a mere wastage of resources of the Bench and its time. The instant application is not maintainable at this stage - Application dismissed.
- 2019 (12) TMI 242
Suit for recovery of money for supply of goods/services - alleged amount is an operational Debit and the Respondent/Plaintiff is an Operational Creditor as defined under Section 5(20) and 5(21) of the IBC - pre-existing creditor - Plaint can be rejected only with the averments made in the plaint do not disclose a cause of action or on a reading thereof the suit appears to be barred under any law - contention of the learned counsel for the applicant/defendant is that by order dated 26.07.2017, the Adjudicating Authority under Section 14 of the Insolvency and Bankruptcy Code, 2016 had declared moratorium prohibiting/barring institution of suit. HELD THAT:- Though no circumstance pleads in the plaint to find out whether the suit is maintainable or not or liable to be rejected, it is to be noted that suit has been originally filed against M/s....... + More
- 2019 (12) TMI 188
Whether the High Court ought to interfere, under Article 226/227 of the Constitution, with an Order passed by the National Company Law Tribunal in a proceeding under the Insolvency and Bankruptcy Code, 2016, ignoring the availability of a statutory remedy of appeal to the National Company Law Appellate Tribunal and if so, under what circumstances? - HELD THAT:- A lot of stress was made on the effect of Section 14 of IBC, 2016 on the deemed extension of lease. But we do not think that the moratorium provided for in Section 14 could have any impact upon the right of the Government to refuse the extension of lease. The purpose of moratorium is only to preserve the status quo and not to create a new right. Therefore nothing turns on Section 14 of IBC, 2016. Even Section 14 (1) (d), of IBC, 2016, which prohibits, during the period of moratoriu....... + More
- 2019 (12) TMI 187
Time Limitation - initiation of CIRP against Corporate Debtor - whether the claim of the applicant/petitioner is within limitation or barred by limitation? - HELD THAT:- In the case in hand, the applicant claims the amount from September, 2014 to May, 2015, therefore, in view of Article 137 of Limitation Act, the person is required to file application within three years, when right accrues to file the claim, but the applicant has not claimed the amount within three years from 30.09.2015, i.e. the date of default and filed this petition on 15.05.2019, which is much after the three years from the date of default. In view of the provision of Article 137 of Limitation Act, this Adjudicating Authority is of the considered view, that the present claim of the applicant/petitioner is barred by Article 137 of Limitation Act - the present petition ....... + More
- 2019 (12) TMI 167
Maintainability of application - initiation of CIRP - absence of bar under Section 11 of the ‘I&B Code’ - Corporate Debtor failed to make repayment - existence of debt and dispute or not - Section 7 of the ‘I&B Code’ - HELD THAT:- Similar issue fell for consideration before the Hon’ble Supreme Court in Forech India Ltd. v. Edelweiss Assets Reconstruction Co. Ltd. [2019 (1) TMI 1442 - SUPREME COURT]. In the said case, the Hon’ble Supreme Court noticed that the winding up petition was filed against the ‘Corporate Debtor’ (Company) against which application under Section 7 of the ‘I&B Code’ was filed subsequently and observed that This Section is of limited application and only bars a corporate debtor from initiating a petition under Section 10 of the Code in respect of ....... + More
- 2019 (12) TMI 129
Permission to withdraw the Application which is admitted u/s 7 of the IBC Code, 2016 - Sec 12A of I&B Code - HELD THAT:- It is clear from section 12A of the Code that the Adjudicating Authority may allow the withdrawal of application admitted under section 7 or section 9 or section 10 on an application filed by the applicant with the approval of 90% voting share of the Committee of Creditors. Thus it is clear if 90% voting share of Committee of Creditors approves application for withdrawal then Adjudicating Authority to allow for withdrawing the application filed under section 7 or section 9 or section 10 of the Code. Present application is filed by RP before this Tribunal for approval of the withdrawal of application. It is clear that Regulation 30A of IBC (Corporate Insolvency Resolution Process) regulation 2016, are complied - By v....... + More
- 2019 (12) TMI 128
Maintainability of application - initiation of CIRP - default committed by the Corporate Debtor in repaying amount alongwith interest - existence of debt and default or not - HELD THAT:- The Corporate Debtor counsel has admitted the debt and default, whereby looking at the request of the Corporate Debtor for grant of loan, entries of the payments to the Corporate Debtor made by the Applicant through Bank Account on various dates as reflected in the above said table and the Corporate Debtor failing to repay the same, it can be said that this Applicant has proved existence of debt and default with regard to the loan of ₹ 32,00,000 given by the Applicant. Application admitted - moratorium declared.
- 2019 (12) TMI 127
Maintainability of application - initiation of CIRP - issuance of El Form - debt due and payable - whether submission of El Form as per the terms stipulated in the purchase order, is a pre condition for enabling the Corporate Debtor to pay the amount in demand? HELD THAT:- On a reference to all documents, there is a pre existent dispute as alleged by the Corporate Debtor in respect of the payment of the debt due to the Operational Creditor and therefore, this Application is liable to be rejected. Application rejected.
- 2019 (12) TMI 126
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of outstanding amount - existence of dispute or not - HELD THAT:- In the instant application, from the material placed on record by the Applicant, this Authority is satisfied that the Corporate Debtor committed default in paying the financial debt to the Applicant and the respondent company has acknowledged the debt by way of affidavit - In the instant case, the documents produced by the Financial Creditor clearly establish the 'debt' and there is default on the part of the Corporate Debtor in payment of the 'financial debt'. There is existence of default and that the application under Section 7(2) of the Code is also complete in all respect - the petitioner/financial creditor having fulfilled all the requirements of Section 7 of the Code, the instant petition deserves to be admitted. Petition admitted - moratorium declared.
- 2019 (12) TMI 52
Disposal of the uncleared cargo by way of auction - Right of Customs Department - Company under Insolvency Process (CIRP) - Corporate Debtor - It is submitted that the ‘Corporate Debtor’s’ ownership rights in the imported goods have been relinquished by operation of law contained in Section 48 of the ‘Customs Act, 1962’ - reliance on Section 238 of the ‘I&B Code’ - HELD THAT:- From section 48, it is clear that in case of non-clearance of the goods within 30 days or within extended period or if the title of any imported goods is relinquished after notice to the importer and with the permission of the proper officer, the goods can be sold by the Custom Authority - In the present case, the goods are in the custody of the Custom Authority, but the ownership remains with the ‘Corporate Debtor....... + More
- 2019 (11) TMI 1280
Auction of property of Corporate Debtor - Stay on auction proceedings - CIRP - recovery of the workmen’s dues by sale of the assets of Respondent No. 4 - Company through a public auction - HELD THAT:- In view of the provisions of the IBC, the High Court ought not to have proceeded with the auction of the property of the Corporate Debtor - Respondent No. 4 herein, once the proceedings under the IBC had commenced, and an Order declaring moratorium was passed by the NCLT. The High Court passed the impugned Interim Orders dated 14.08.2019 and 05.09.2019 after the CIRP had commenced in this case. The moratorium having been declared by the NCLT on 04.06.2019, the High Court was not justified in passing the Orders dated 14.08.2019 and 05.09.2019 for carrying out auction of the assets of the Respondent No. 4-Company i.e. the Corporate Debto....... + More
- 2019 (11) TMI 1279
Imposition of penalty against resolution professional - restriction on taking new assignments - clearance of pending bills - filing an action for impugning the circular dated 12.6.2018 - HELD THAT:- The respondent no.2/COC is directed to deposit ₹ 12,09,90,185/- with the Registry of this Court without prejudice to its rights and contentions. The money will be deposited on or before 14.12.2019 - Learned counsel for the petitioner informs me that pursuant to the order dated 19.11.2019, the petitioner has deposited ₹ 29,24,167/- with the Registry of this Court. The statement of the counsel is taken on record. The operation of the impugned order, insofar as it prevents the petitioner from accepting a new assignment as an Interim Resolution Professional (IRP) or Resolution Professional, is stayed. Renotify the matter on 28.2.2020.
- 2019 (11) TMI 1213
Maintainability of application - initiation of CIRP - Corporate Debtor has defaulted in its repayments - debt due and payable or not - section 7 of Insolvency and Bankruptcy Code, 2016 - HELD THAT:- It is abundantly clear that the present petition under section 7 of the 1B Code has been filed solely and exclusively in the background and in pursuance of RBI Circular dated Even the last date for filing of petition under 1B Code has been discussed and mentioned in Minutes dated 30.11.2018 making it clear that compliance of RBI Circular dated 12.02.2018 was very much in the mind of Financial Creditor. Accordingly, the present petition under section 7 of the Code has been filed on 06.12.2018 i.e. just five days before the date of 11.12.2018. The present petition filed by financial creditor under section 7 of the Code is solely filed in pursuance of RBI Circular dated 12.02.2018 - the present petition filed under section 7 of the 1B Code deserves to be dismissed - Petition dismissed.
- 2019 (11) TMI 1212
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment - debt due and payable or not - HELD THAT:- the 'Corporate Debtors' are 'Corporate Guarantor', and also shown as 'Co-Borrowers'. In Annexure-II therein, the statement showing details of the loan and security documents have been mentioned which includes 'guarantee agreements' given by the aforesaid 'Corporate Debtors'. As the project will be developed on the land of five 'Corporate Debtors', as referred to above as per the township plan, they have rightly taken plea that simultaneous 'Corporate Insolvency Resolution Processes' should continue against them under the guidance of same 'Resolution Professional'. Group 'Corporate Insolvency Resolution Process' proceeding is requi....... + More
- 2019 (11) TMI 1211
Maintainability of application - initiation of CIRP - default in repayment of loan amount by the Corporate Debtor to the Applicant - debt due and payable or not - HELD THAT:- Upon a detailed consideration of the application and documents filed by the Applicant, it is apparent that the payment of claim amount has been defaulted by the Corporate Debtor. The Registered Office of the Corporate Debtor is situated in Ajmer and therefore this Tribunal has jurisdiction to entertain and try this Application. The matter is within the purview of Law of Limitation - this Tribunal is inclined to initiate the Corporate Insolvency Resolution Process (CIRP) as against the Corporate Debtor as envisaged under the provisions of IBC, 2016. Petition admitted - moratorium declared.
- 2019 (11) TMI 1210
Maintainability of application - initiation of CIRP - Respondent failed to make repayment of outstanding amount - Debt due and payable or not -Section 8 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The applicant has attached the copy of Bank certificated issued by UCO Bank dated 27.07.2018 and also the copy of bank statement for relevant period in compliance with the requirement of Section 9(3)(c) of the IBC 2016 - The registered office of respondent is situated in New Delhi and therefore this Tribunal has jurisdiction to entertain and try this application - The present application is filed on 21.08.2018 which is within the period of limitation. The present application is complete and the Applicant is entitled to claim its dues, establishing the default in payment of the operational debt beyond doubt, and fulfillment of requirements under section 9(5) of the Code - Application admitted.
- 2019 (11) TMI 1169
CIBIL rating - Removal of name of the petitioner from the list of defaulters maintained by Credit Information Bureau (India) Limited - liability of a guarantor towards a creditor in respect of a guarantee given by such guarantor to secure the claim of a creditor for the credit facilities advanced by such creditor to the company - Whether the liability of a guarantor of a debt of a corporate-debtor stands reduced/extinguished upon an Insolvency Resolution Plan in respect of the corporate debtor, being approved under the Insolvency and Bankruptcy Code, 2016? HELD THAT:- Section 14 of the Code of 2016 does not apply to a personal guarantor. The Code of 2016 does not allow personal guarantors to escape their liability. When an application under Section 7 of the Code of 2016 is admitted by the Adjudicating Authority, the steps taken subsequent....... + More
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