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Insolvency and Bankruptcy - Case Laws
Showing 21 to 40 of 1699 Records
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2021 (12) TMI 1355 - NATIONAL COMPANY LAW TRIBUNAL KOLKATA BENCH
Seeking approval of the Resolution Plan - section 30(6) read with section 31(1) of the Insolvency and Bankruptcy Code, 2016 and regulation 39(4) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 - HELD THAT:- The Resolution Plan has been approved with 99.10% voting share. As per the CoC, the plan meets the requirement of being viable and feasible for revival of the Corporate Debtor. By and large, all the compliances have been done by the Resolution Professional and the Resolution Applicant for making the plan effective after approval by this Bench - On perusal of the documents on record, it is satisfying that the Resolution Plan is in accordance with sections 30 and 31 of the IBC and also complies with regulations 38 and 39 of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016.
As far as the question of granting time to comply with the statutory obligations or seeking approvals from authorities is concerned, the Resolution Applicant is directed to do so within one year from the date of this order, as prescribed under section 31(4) of the Code - In case of non-compliance of this order or withdrawal of Resolution Plan, the payments already made by the Resolution Applicant shall be liable for forfeiture.
The Resolution Plan is approved - application allowed.
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2021 (12) TMI 1344 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH NEW DELHI
Maintainability of application - Appellant submits that although the parties have settled in the matter, the RP is not cooperating in the matter - HELD THAT:- Issue Notice. Requisite along with process fee, if not filed, be filed within three days. If the Appellant provides e-mail address of the Respondents, let notice be also issued through e-mail.
List on 7th February, 2022.
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2021 (12) TMI 1343 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH NEW DELHI
Seeking permission of the Adjudicating Authority to settle the matter - HELD THAT:- Issue Notice. Notice is accepted by Mr. Gautam Singhal, Advocate on behalf of Respondent No. 1. Ms. Shalya Agarwal, Advocate accepts notice on behalf of Respondent No. 2. No further notice needs to be issued on any of the Respondent.
List the Appeal on 11th January, 2022.
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2021 (12) TMI 1341 - NATIONAL COMPANY LAW TRIBUNAL KOLKATA BENCH
Maintainability of application - initiation of CIRP - Principal borrower failed to repay the principal amount along with interest - Financial Creditors - account classified as NPA - existence of debt and dispute or not - HELD THAT:- It is considered fit, to adopt the view taken in State Bank of India vs. Athena Energy Ventures Private Limited, [2020 (11) TMI 800 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , NEW DELHI] case wherein, it was clearly held that in the matter of guarantee, CIRP can proceed against the Principal Borrower as well as the Guarantor. The Hon'ble NCLAT had held in that matter that the law as laid down by the Hon'ble High Courts for the respective jurisdictions, and law as laid down by Hon'ble Supreme Court for the whole country is binding.
The Hon'ble NCLAT further held that in the matter of Piramal [2019 (2) TMI 316 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI], the Bench of this Appellate Tribunal "interpreted" the law. It was held that ordinarily, " we would respect and adopt the interpretation but for the reasons discussed above, we are unable to interpret the law in the manner it was interpreted in the matter of Piramal".
The present petition against the Corporate Debtor herein which is a Guarantor as well, is admitted - the petition is admitted and CIRP in respect of the Guarantor is initiated - moratorium declared.
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2021 (12) TMI 1334 - NATIONAL COMPANY LAW TRIBUNAL, ALLAHABAD
Approval of Resolution Plan - section 30(6) read with section 31(1) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The Resolution Plan defines "Effective Date" as the date on which the Adjudicating Authority approves the Resolution Plan. Under the Resolution Plan, payments towards the CIRP Cost, Operational Creditors and the Financial Creditors would be made within 90 days from the approval of the plan from the Adjudicating Authority. Page 84 of the Application The Resolution Professional states that the 100% CoC member (AARC) had voted in favour of the Plan and has accepted this proposal in the sixth CoC Meeting.
It is found that the Resolution Plan has been approved with 100% voting share. As per the CoC, the Plan meets the requirement of being viable and feasible for revival of the Corporate Debtor. By and large, all the compliances have been done by the RP and the Resolution Applicant for making the Plan effective after approval by this Bench - the Resolution Plan is in accordance with sections 30 and 31 of the Code and also complies with regulations 37, 38 and 39 of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. No circumstances exist that militate against grant of approval for the Resolution Plan.
The Resolution plan is approved - application allowed.
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2021 (12) TMI 1329 - NATIONAL COMPANY LAW TRIBUNAL DELHI BENCH
Seeking restraint on Corporate Debtor and applicant from selling, alienating and creating any 3rd party rights on the assets of the Corporate Debtor till the adjudication of main IB petition - seeking injunction on operation of possession notice issued by applicant under Section 13 (4) of SARFAESI Act - seeking injunction on the operation of possession notice till the pendency of the present application - HELD THAT:- Admittedly, vide order dated 30th September 2021, this Tribunal directed the parties to maintain status-quo, although, no detailed order was passed on that day, but it is a matter of fact that the proceedings before the IBC are in nature that assets of the Corporate Debtor should be protected, so that it could not have been siphoned off during this period - while passing the order at 09:30 p.m. pertaining to maintain the status qua, the object of this Tribunal was only to protect the assets of the Corporate Debtor. Hence, the said order was in consonance with the objective of the IBC and falls in the line of inherent power exercised by this Tribunal.
In the present matter in hand, it is to be noted that the notice under Section 13(2) of the SARFAESI Act was issued by the Financial Creditor i.e. Yes Bank on 29th July 2021 to the Corporate Debtor, accordingly, the statutory period of 60 days was to expire on 28th September 2021, but the notice of symbolic possession was given on 10th September 2021, and the symbolic possession was taken merely within 42 days without completing the statutory period of 60 days as laid down under the 13(2) SARFAESI Act. Thus, the above said hurry up acts/omissions on the part of Yes Bank and Corporate Debtor indicates that there might be some collusion between them, in order to help the Corporate Debtor to redeem the property.
Further, in the present matter, the present petitioner is one of the Financial Creditor and the charge was also duly created in its favour also by the Corporate Debtor. It is settled principal of law, while creating charge on a property, only an intention is required to be seen. Once, the said intention is reflected from the act & conduct of the Corporate Debtor, it is to be presumed that the charge has been duly created in the favour of the Financial Creditor/petitioner herein also. Moreover, merely that the charge has not been entered under the CERSAI, that does not mean that the preferential right has been created in the favour of the Yes Bank. Hence, in the present matter, where the petitioner herein being a Financial Creditor have a prime facie case in its favour although, the Yes Bank has also extended credit facility to the Corporate Debtor, therefore, until the petition is being heard finally, it is appropriate to protect & preserve the property of the Corporate Debtor not only for the benefit of all the creditors, but also for the Corporate Debtor.
Thus, the affirmed view is that the injunction order of maintaining status qua must continue till the next date of hearing.
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2021 (12) TMI 1325 - NATIONAL COMPANY LAW TRIBUNAL CHENNAI BENCH
Seeking transfer of shares - if the shares have been disposed of by the Respondents, then the proceeds of the same be directed to be credited to the account of the Corporate Debtor - preferential transaction - HELD THAT:- The scope and nature of transactions enumerated under Section 43, 45, 50 and 66 of IBC, 2016 are independent and distinct.
As to the present case, it is seen that the RP has moved the MA/731/2019 under Section 43 and 44 of IBC, 2016 and hence there is no ambiguity in the Application being filed by the RP and the scope of examination of the present Application will revolve around the tenets of Section 43 of IBC, 2016. Section 43 of IBC, 2016 deals with the what is Preferential Transaction and Section 44 of IBC, 2016 deals with the orders to be passed in case of preferential transaction.
A cursory reading of Section 43 of IBC, 2016 in terms of the Judgment of the Hon'ble Supreme Court in the matter of Anuj Jain [2020 (2) TMI 1259 - SUPREME COURT] contemplates that where the liquidator or the resolution professional is of the opinion that the corporate debtor has at a relevant time given a preference in such transaction and in such manner as laid down in sub-section (2) to any persons as referred to in sub-section (4), he shall apply to the Adjudicating Authority for avoidance of preferential transaction and for, one or more of the orders referred to in Section 44. Thus, the preliminary enquiry which this Adjudicating Authority is required to do is to first ascertain as to whether the Corporate Debtor has given any preference. Only thereafter, the Adjudicating Authority is required to examine as to whether the scope of enquiry of giving preference, has happened within and during the specified time, referred to as "relevant time".
The transaction sought to be impugned by the Resolution Professional does not pertain to 'Corporate Debtor giving preference over other creditors', however it relates to a creditor who is invoking the pledge on account of default by the Corporate Debtor and under no stretch of imagination the said transaction can be brought under the confines of 'preferential transaction' as defined under Section 43 of IBC, 2016 - During the course of arguments and even in the rejoinder it is stated that pending admission of Section 7 Application, the Corporate Debtor has paid a sum of ₹ 1 Crore to Union Bank of India over the total default amount of ₹ 10 Crore. It is also seen from the record of proceedings that no direction was given by this Adjudicating Authority to pay any amount to the Financial Creditor. The Corporate Debtor, during the pendency of Section 7 Application has paid a sum of ₹ 1 Crore to the Financial Creditor and if we apply the definition of Section 43 of IBC, 2016 only the said transaction made by the Corporate Debtor would attract 'preferential transaction'. However, it is seen that the RP has not moved any Application seeking to bring the said amount paid to the Financial Creditor during the pendency of Section 7 Application to the tune of ₹ 1 Crore as 'preferential transaction'.
The Adjudicating Authority is vested with the scope of enquiry into the transactions which have happened prior to the Insolvency Commencement Date only in respect of transactions covered under Section 43, 45, 49 and 66 of IBC, 2016 - thus, it is seen from the Information Memorandum that the above extracted excerpt was the information provided to the successful Resolution Applicant and as such the successful Resolution Applicant cannot now come and claim that since he has paid a sum of ₹ 80 Crore more in the Resolution Plan he is entitled to get this transaction reversed. The Resolution Applicant has given the Resolution Plan based upon the information as given in the Information Memorandum and upon perusal of the Information Memorandum, it seen that pledge of shares of the Corporate Debtor in the 2nd Respondent Company has been invoked by Apollo Distilleries and Breweries Private Limited and as such the said shares were not part of the Information Memorandum, however, the successful Resolution Applicant cannot now strengthen his case by referring to the clauses in the Resolution Plan by stating that they are entitled to the said proceeds. In any case, it is held that the impugned transaction does not even fall under Section 43 of IBC, 2016.
Thus, the alleged transaction filed by the Resolution Professional in respect of the Corporate Debtor does not constitute 'preferential transaction' in terms of Section 43 of IBC, 2016 - application dismissed.
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2021 (12) TMI 1323 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Maintainability of appeal - Appellate Tribunal has already passed the requisite orders for expeditious proceedings - HELD THAT:- Today, when the case was called out from the perusal of the office record it appears that Respondent No. 1 to 3 have field their Reply Affidavit on 23.11.2021, which is taken on record.
Learned Counsel for the Appellant is directed to file hard copy of the Rejoinder to the Reply Affidavit filed on behalf of the Respondent No. 1 to 3 latest by Friday i.e. by 10.12.2021. Office of the Registry is directed to accept the same - List this matter on 14th December, 2021 at 2:00 P.M under the heading 'For Hearing'.
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2021 (12) TMI 1318 - NATIONAL COMPANY LAW TRIBUNAL NEW DELHI 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 - Time Limitation - HELD THAT:- This Bench observes that under IBC Proceedings, the Limitation starts from the date of default. The Limitation Period for filing an Application under IBC, 2016 is 3 years from the date of default - the last unpaid invoice claimed under Part IV of the Application is 10.04.2014, whereas the present Application has been filed on 26.03.2021.
Even if the Limitation is acalculated from the last date of Payment i.e., from 31.03.2014, the limitation would have expired on 30.03.2017 - the Applicant has nowhere pleaded in its Application that as to how the Application is to considered within the Limitation Period.
Since the Application is not preferred within a period of 03 years from the date of default as well as from the date of part Payment, the present Application, not being filed within the limitation period, is time barred.
Application dismissed.
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2021 (12) TMI 1317 - NATIONAL COMPANY LAW TRIBUNAL NEW DELHI 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 - Time Limitation - HELD THAT:- On page 11 part 4, the applicant referred to the email dated 27.04.2017, on the basis of which, the applicant claimed the amount which is in default, and it is found that the date of default mentioned in the application is 30.12.2016 whereas the present application is filed on 13.03.2020. In view of Article 137, the applicant is required to file the application within 3 years when the right to apply accrues - the date of default referred at page 11 and accordingly, the date of default, is 30.12.2016. On the basis of that, it can be said that applicant admits that the date of default is 30.12.2016 and since as per the termination letter dated 30.11.2016, the last working date of the applicant was 30.12.2016, therefore, the date of default is 30.12.2016. In this case the date from which debt fell due was 30.12.2016, therefore, the right to apply accrues on 30.12.2016 and the present application was filed on 13.03.2020 which is beyond 3 years of date of default. Hence, the application is barred by limitation.
The e-mail dated 27.04.2017 at page 52 sent by Mahesh Venkateswaran to Mr. Mohan i.e. Applicant shows that that the HR of the Corporate Debtor will process an additional F & F payment which covers the Unpaid notice period amount and the internal rating of the Applicant as per records does not provide for any variable payment or increment and e-mail dated 15.02.2017 at page 32 sent by Corporate Debtor to the Applicant shows that the applicant was informed that apart from ₹ 18,584/- nothing more is payable to the Applicant and outstanding would be processed within 15 days subject to the acknowledgement of the same by the Applicant. Further, the waiver of the notice period of 2 months was also communicated to the Applicant by the Respondent by way of relieving letter dated 06.01.2017.
The present application is barred by limitation - Appeal dismissed.
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2021 (12) TMI 1307 - NATIONAL COMPANY LAW TRIBUNAL INDORE BENCH
Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - the main matter is referred to third Bench by the order of Hon'ble President and further orders require from Hon'ble President only - HELD THAT:- Pending hearing of main CP and since claim of all stakeholders are required to be considered when this Adjudicating Authority cease with main petition, we direct to maintain status quo relating to all assets of the Corporate Debtor as on today.
Application disposed off.
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2021 (12) TMI 1275 - NATIONAL COMPANY LAW TRIBUNAL , GUWAHATI BENCH
Payment of Transaction Audit Fees - Section 60(5) of IBC read with Rule 11 of NCLT Rules - HELD THAT:- It is clear that the Suspended Management /Directors have neither cooperated fully nor they have provided the complete book of accounts, despite sufficient opportunities given, as required under Sec 19 of IBC for completion of the CIRP. The Transaction Auditor, the Applicant here has not submitted Complete Transaction Audit Report for want of cooperation from the Directors and availability books of accounts of the CD. The Transaction Audit Report submitted by the Applicant is not complete.
Hence the Suspended Management is hereby directed to file reply affidavit to the reported irregularities undertaken by the CD as mentioned in the Report and the reasons for their non - cooperation/non supply of all books of accounts, within 10 days from today - Transaction Audit Report is not complete.
Considering the work done by the Applicant and the Unit being a Coaching Institute, it is reasonable for the CoC to pay ₹ 3,00,000.00 plus applicable GST i.e. ₹ 60000.00 per year - application disposed off.
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2021 (12) TMI 1274 - NATIONAL COMPANY LAW TRIBUNAL , KOCHI BENCH
Seeking release of security interest from the liquidation estate - HELD THAT:- The vehicle is registered in the name of the suspended Director of the corporate Debtor. Under Part II of IBC when an Application is admitted &moratorium becomes applicable, the right to reach the vehicle under such contract would be affected & will be subject to provisions of IBC. Under Section 18(1)(f) of the IBC Code, 2016, as soon as CIRP is initiated, the IRP is duty-bound to take control and custody of assets over which the Corporate Debtor has ownership rights. It appears from the records that the owner’s name and address in the Certificate of Registration, confirms the ownership of the car to be that of the Corporate Debtor - the vehicle is purchased in the name of the suspended Managing Director for the Corporate Debtor. Therefore, the company is the owner of the vehicle.
If the respondent wants to proceed with the liquidation proceedings without relinquishing his security interest he has to follow Section 52 of the I&B Code in which it is specified that the CIRP cost due from the secured creditors who realize the security interest in the manner provided in Section 52 has to deduct the proceeds from the sale of the asset and shall transfer such amounts to be included in the liquidation estate.
In this case the respondent has submitted Form D to realize his claim from the asset of the Corporate Debtor through Liquidation Proceedings. Thus, we are constrained to believe that the respondent has admitted themselves as the Financial Creditor and submitted the claim before the Liquidator and that the Liquidator considered the claim of the Respondent. Therefore, the Respondent is liable to follow the procedures prescribed under the I&B Code - Since we found that the asset in question is registered in the name of the Managing Director of Corporate Debtor and in the address of M/s. Adhils Builders and Developers Pvt. Ltd, it is to be taken as a Liquidation asset of the Corporate Debtor.
Application disposed off.
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2021 (12) TMI 1273 - NATIONAL COMPANY LAW TRIBUNAL , NEW DELHI BENCH
Seeking to release the outstanding fee of Liquidator during which the Applicant has discharged his functions - HELD THAT:- There are force with the contention of the Applicant/erstwhile liquidator. Having considered the submissions made by the parties and the directions given by this Tribunal vide order dated 06.01.2020 while passing the liquidation order, we deem it appropriate to allow this application and direct that the Applicant is entitled to get his fees during the period he functioned as the Liquidator.
It is deemed appropriate to direct the respondent no. 1 to 5, who are the Members of the Stakeholders Consultation Committee to pay a sum of ₹ 75000/- per month to the present applicant/erstwhile Liquidator for the period 06.01.2020 to 06.01.2021 during which he worked as the Liquidator of the Corporate Debtor - application allowed.
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2021 (12) TMI 1272 - NATIONAL COMPANY LAW TRIBUNAL , KOCHI BENCH
Seeking direction to 1st Respondent to admit the claim - Section 68 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The reason for rejection stated by the Resolution Professional in her reply statement is that as per the books of accounts of the Corporate Debtor an amount of ₹ 91,05,993.26/- equivalent to USD 1,41,847.05 is only payable to the Applicant, as this amount reflects in the Audited Financial Statement of the Corporate Debtor. The excess amount claimed by the Applicant has already been received by them from the Corporate Debtor and this amount was adjusted by the Applicant against the dues of Matheel. Hence the Resolution Professional has not accepted that amount which has already been paid. If that amount is also accepted by the Resolution Professional, that would be violation of the IBC and detrimental to the interests of other creditors of the Corporate Debtor. Moreover, the applicant has not disputed the receipt of such amount from the Corporate Debtor.
There are no reason to entertain this application - application dismissed.
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2021 (12) TMI 1271 - NATIONAL COMPANY LAW TRIBUNAL MUMBAI BENCH, COURT-II
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial creditors - existence of debt and dispute or not - HELD THAT:- In the present case in hand it is noted that the amount were advanced as per agreement on 11.01.2016 for period of 3 years being lock in period at the rate of 2% per month interest rate therefore amount becomes due on 11.01.2019. The Financial Creditor also issued default notice and recalled principal and interest through advocate, however Corporate Debtor has failed to make the payment.
In the lights of the Hon’ble Supreme Court in SWISS RIBBONS PVT. LTD. AND ANR. VERSUS UNION OF INDIA AND ORS. [2019 (1) TMI 1508 - SUPREME COURT] upholding the Constitutional validity of IBC, the position is very clear that unlike Section 9, there is no scope of raising a ‘dispute’ as far as Section 7 petition is concerned. As soon as a ‘debt’ and ‘default’ is proved, the adjudicating authority is bound to admit the petition.
The application made by the Financial 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 stipulated under section 4(1) of the IBC. Therefore, the debt and 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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2021 (12) TMI 1270 - NATIONAL COMPANY LAW TRIBUNAL , GUWAHATI BENCH
Seeking dissolution of Corporate Debtor - Section 59(7) of the Insolvency and Bankruptcy Code, 2016 and other applicable provisions of the IB Code, 2013 read with Regulation 38(3) of Insolvency and Bankruptcy Board of India (Voluntary Liquidation Process) Regulations, 2017 - HELD THAT:- The Applicant Company is having no creditors, i.e. either secured creditors or unsecured creditors. The Company has duly passed necessary Special Resolution in its Extra-Ordinary General Meeting on 14.02.2019 by confirming the decision of its Board of Directors by proposing its Voluntary Liquidation. Further, in Extra-Ordinary General Meeting a Resolution was passed to appoint a Liquidator for such purposes. Thus, it appointed Mr. Om Prakash Rathi, the Insolvency Professional as Liquidator and after his demise, through Special Resolution passed in its Extra-Ordinary General Meeting on 26.07.2019, appointed Mr. Amit Pareek, the Insolvency Professional as Liquidator.
This Adjudicating Authority in exercise of power conferred under Section 59 (8) of the Insolvency and Bankruptcy Code 2016, the Applicant Company i.e., “M/s. Guwahati Real Estate Limited” is ordered to be dissolved with effect from the date of this Order i.e. 30.11.2021 - Petition allowed.
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2021 (12) TMI 1239 - NATIONAL COMPANY LAW TRIBUNAL , MUMBAI BENCH
Seeking directions to be issued to the Respondents to make contributions to the corpus fund as approved by the Committee of Creditors (CoC) to meet and support the Applicant to keep the Corporate Debtor Company as a going concern - HELD THAT:- It is seen from the records that the corpus was created and unanimously approved in the meetings of the CoC held on 14.12.2018, 16.12.2019 and 07.09.2020 respectively. The said corpus was created to keep the Corporate Debtor Company as a going concern, to protect and preserve the assets and to meet the costs and expenses incurred in the CIRP.
Further the instalments of corpus had been approved and created by the requisite majority of the CoC members. It is seen that there are pending contributions from the Respondents towards the said approved corpus. Therefore, in view of the urgent need for the funds and in absence of any alternate source of funds for running of the Consolidated CIRP of the Corporate Debtor Company and to keep the Corporate Debtor Company as a going concern, this Bench hereby directs the Respondents as mentioned in paragraph no. 17 to make payments towards their respective share of pending contributions to the corpus as approved by the CoC, within 15 days from receiving the Certified copy of the Order, to enable the Applicant to operate the business of the Corporate Debtor as a going concern to preserve and protect the assets during the CIRP and meet the costs and expenses incurred during the CIRP of the Corporate Debtor.
Application allowed.
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2021 (12) TMI 1238 - 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 - HELD THAT:- The petitioner has filed its bank statement (Annexure 5) that the amount claimed or any part thereof, the petitioner has neither received nor had any person, on its behalf who received in any manner the amount due towards Corporate Debtor as required under Section 9(3)(c) of I &B Code nor received any notice of dispute raised by the corporate debtor under Section 9(3)(b) of the IBC, 2016 - The registered office of corporate debtor is situated in Bathinda, Punjab and therefore this Tribunal has jurisdiction to entertain and try this petition.
The default occurred from 24.08.2017 and the petition is filed on 06.06.2019, hence the debt is not time barred and the petition is filed within the period of limitation - the present petition is complete and the petitioner is entitled to claim its dues, which remain uncontroverted by the Corporate Debtor, establishing the default in payment of the operational debt beyond doubt.
Petition admitted - moratorium declared.
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2021 (12) TMI 1237 - NATIONAL COMPANY LAW TRIBUNAL , CHENNAI BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial contract - financial creditors - existence of debt and dispute or not - HELD THAT:- It is well settled now, for an Application under Section 7 of IBC, 2016 to be admitted by the Adjudicating Authority, (i) there must be a debt and (ii) the said debt must be due and payable either in law or on facts and (iii) the said debt should partake the character of a 'Financial Debt' and (iv) upon non-payment of the said 'debt' would amount to default. Only if the above conditions are satisfied then this Adjudicating Authority can admit an Application filed by the Financial Creditor under Section 7 of IBC, 2016.
It becomes clear that it is incumbent upon the Financial Creditor while filing this petition to place on record before this Authority, the 'Financial Contract' and demonstrate without any ambiguity from the financial contract, the amount disbursed as per the loan/debt, the tenure of the loan/debt, the interest payable and the conditions of repayment - the Applicant herein failed to demonstrate that the 'debt' has become due and payable and there's default, due to the lack of a 'Financial contract' in consonance to the present case and as such the Applicant does not qualify to be the Financial Creditor in relation to the Corporate Debtor.
Application dismissed.
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