|
Advanced Search Options
Insolvency and Bankruptcy - Appellate Tribunal - Case Laws
Showing 1 to 20 of 87 Records
More information of case laws are visible to the Subscriber of a package i.e:-
Party Name, Court Name, Date of Decision, Full Text of Headnote and Decision etc.
-
2022 (9) TMI 1523
Dismissal of application invoking Section 70 of the Insolvency and Bankruptcy Code, 2016 - dismissed only on the ground that the Tribunal lacks jurisdiction to entertain such an application - HELD THAT:- Reliance placed in the matter of 'Vivek Prakash (Suspended Director & MD) vs. Dinesh Kr. Gupta, Liquidator of M/s. Jarvis Infratech Pvt. Ltd. & Anr.' [2022 (2) TMI 906 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI] in which it has been held that the RP is not empowered to initiate the prosecution but at the same time, it has been held that in order to initiate prosecution under Section 70 the complaint has to be filed by the Insolvency and Bankruptcy Board of India (IBBI) or Central Government or person authorized by the Central Government.
There are no error in the order of the Ld. Tribunal, therefore, the present Appeal is hereby dismissed.
-
2022 (9) TMI 1500
Maintainability of Section 9 application - application rejected on the ground that for breach of settlement agreement, application - dues arising out of settlement may not be an ‘operational debt’ - HELD THAT:- Present is a case where the Appellant was awarded the contract to carry on construction and structural work and the dues claimed by the Appellant are operational debt. The Memorandum of Understanding entered between the parties was only with regard to mode and manner of payment, that too after final bill certificate which was duly signed by both the parties - Adjudicating Authority did not consider the nature of transaction between the parties and has erroneously come to the conclusion that section 9 application was not maintainable. The judgement of Adjudicating Authority cannot be sustained.
The appeal is allowed by setting aside the order of Adjudicating Authority directing the Adjudicating Authority to pass an order of admission and other consequential order within a period of four weeks from the date of receipt of this order.
-
2022 (9) TMI 1477
Maintainability of review application - HELD THAT:- It is now well settled that an application for review against the order of the Tribunal can only be maintained if the remedy of review is provided in I&B Code.
Thus, no review application is maintainable before this Tribunal as there is no provision for review in the Code. However, the Appellant, if so advised, may take recourse to its other remedy in accordance with law in case it is still aggrieved against the order dated 27.01.2022 or a part of it.
-
2022 (9) TMI 1465
Vacation of interim order - Appellant contends that the assets of the Corporate Debtor were the only property and in view of the vacation of the Interim Order, prejudice will be caused to the Appellant - HELD THAT:- The Interim Order dated 01st April, 2022 was passed on an I.A. filed by the Yes Bank being I.A. No. 779/2022 which having been dismissed by the Impugned Order, Appellant can not be said to be aggrieved by the dismissal of the Application since it was not the Applicant’s application which got dismissed. Appellant in no manner was party to the said application hence we see no reason to entertain the Appeal at the instance of the Appellant.
Appeal dismissed.
-
2022 (9) TMI 1349
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:- In the present case notice of demand was issued on 30.12.2019, hence, we proceed to examine the materials on the record before 30.12.2019 to find out was to whether there was any dispute raised by the Corporate Debtor regarding bills of the Appellant and further whether the dispute raised earlier was not existing on the date when Demand Notice was issued and has subsided as contended by leaned counsel for the Appellant - The Operational Creditor was put to notice that there is short supply of the Supervisor and Security Personnel under the contract which shall result in recovery from the payment and payments for the months mentioned therein has been released to mitigate the hardship of the employees which were released conditionally and all recoveries will be visited on conclusion of the contract.
There are issues regarding releasing the final payment after observing the terms and conditions of contracts. The letter dated 20.12.2019 clearly communicated that issues regarding observing the terms and conditions of the contracts are yet not settled or decided and that was in process. The email further stated that Appellant is informed that ‘very shortly the aforesaid issues would be settled’. The above email does clearly belie the submission of the Appellant that before issuance of demand notice dated 30.12.2019 all the issues between the parties were settled.
There are no substance in the submission of learned counsel for the Appellant that dispute, if any, existing earlier came to an end by the time Demand Notice was issued by the Appellant on 30.12.2019. The materials brought on the record before the Adjudicating Authority and also before us clearly indicate that there was pre-existing dispute with regard to payment of amount claimed by the Appellant and Appellant was duly communicated of the said dispute even prior to issuance of Demand Notice - No reliance on Minutes of Meeting dated 07.06.2019 be placed to accept the submission of Appellant that all the issues between the parties subsided and were settled and the reconciliation was complete.
The Adjudicating Authority did not commit any error in rejecting the Section 9 Application filed by the Appellant on the ground of pre-existing dispute - Appeal dismissed.
-
2022 (9) TMI 1348
Seeking permission to resolution applicant to withdraw the resolution plan - HELD THAT:- After noticing the adverse effect on all businesses the Hon’ble Supreme Court in Ebix Singapore [2021 (9) TMI 672 - SUPREME COURT] had laid down that vesting any such power in the Successful Resolution Applicant to withdraw shall be impermissible.
In event the submission of the Appellant is accepted that due to financial difficulty he is unable to implement the plan and he be permitting to go back from the commitments made in the Resolution Plan, it shall have disastrous effect on the entire process undertaken. The IBC is process consists of different steps with a ultimate object of reviving the Corporate Debtor. Permitting Successful Resolution Applicant to withdraw after the Plan has been approved will have serious disastrous effect on whole purpose and object of IBC - On the submission made by Counsel for the Appellant that since he had no financial capacity to implement the plan he should have been allowed to withdraw, the Adjudicating Authority has rightly rejected his application.
There is no merit in Appeal - The Appeal is dismissed.
-
2022 (9) TMI 1347
Seeking liquidation of the Corporate Debtor - Section 33(1) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The CoC having rejected the Resolution Plan submitted by the Resolution Applicant after due deliberation and discussion, the decision taken by the CoC is a decision taken in the commercial wisdom of the CoC which cannot be interfered with in exercise of jurisdiction by the Adjudicating Authority or by this Tribunal.
The submission of Learned Counsel for the Appellant that no reasons have been given by the CoC for rejecting the plan has also no legs to stand when a decision is taken after due deliberation. The decision of the CoC is reflected in the result of the voting which cannot be questioned. In so far as reliance on 14th CoC meeting dated 22.07.2021 is concerned, the Resolution Professional has brought into notice of CoC about the e-mail send by Resolution Applicant revisiting his offer, which fact although was noticed but no decision was taken by CoC to consider the e-mail by reversing its earlier decision of rejection of plan. Thus, the minutes of 14th CoC in no manner helps the Appellants.
Thus, no error has been committed by Adjudicating Authority in directing for liquidation of the Corporate Debtor. No grounds have been made out to interfere with the Impugned Order dated 26th October, 2021 passed by the Adjudicating Authority - appeal dismissed.
-
2022 (9) TMI 1297
Condonation of delay of 45 days in filing appeal - Appellant failed to apply for certified copy within 30 days period - it is alleged that the Appeal is barred by time as filed beyond extended time of limitation prescribed under Section 61(2) of the Code - Section 12(2) of Limitation Act, 1963 - HELD THAT:- In the facts of the present case, when order was passed on 06.05.2022, the period of 30 days expired on 06.06.2022. 15 days period upto which delay is condonable under Section 61(2) also expired upto 20.06.2022. The appeal by the Appellant having been filed on 06.07.2022 is clearly beyond the 45 days - In the present case, certified copy is claimed to be applied by the Appellant on 15.06.2022 i.e. after expiry of limitation. Thus, the present appeal has been filed beyond 45 days from date of the order dated 06.05.2022 and delay of more than 15 days beyond the period of 30 days cannot be condoned by this Tribunal in exercise of its jurisdiction under Section 61(2) of the I&B Code.
There are no good ground to allow section 5 application filed by the Appellant. Delay condonation application is dismissed.
-
2022 (9) TMI 1296
Revival of Insolvency Application - whether Application filed by the Appellant under Section 9 was entertainable by the Adjudicating Authority? - time limitation - HELD THAT:- There is no enabling provision in the Code to revive the Application, Learned Counsel for the Appellant has relied on a Judgment of “Shree Bhadra Parks and Resorts Ltd.” [2021 (4) TMI 402 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, CHENNAI]. This Tribunal had held that the Adjudicating Authority has jurisdiction under Rule 11 of NCLT, Rules to revive the Application. In the above case, the Adjudicating Authority had passed an Order dated 28th January, 2021 restoring the Company Petition.
Initiation of proceeding under Section 9 by filing an Application to the Adjudicating Authority has to be made by Operational Creditor which must comply with requirement of Section 4. Part-II of the Code which deals with Insolvency Resolution and Liquidation for Corporate Persons applies only when minimum amount of default is Rs. 1 Crore (w.e.f. 24th March, 2020). Thus initiation of an Application under Section 9 has to conform to the requirement under Section 4. Section 4, as it is in operation with effect from 24th March, 2020, is not a mere procedural provision but provides a substantive condition to be fulfilled by an Applicant to initiate CIRP.
The period of default after 25.03.2020 as provided in Section 10-A was entirely for different purpose. The purpose was to protect the corporate debtor from insolvency initiation for default committed on or after 25.03.2020 when whole country was suffering from Covid-19 and all corporate debtors were unable to function effectively, hence default in the said period legislatively was treated to be not giving rise to initiate insolvency. The threshold in Section 4 is entirely different from the protection given under Section 10 A hence Section 10-A has no relevance with regard to interpreting requirement of Section 4.
Application filed by the Appellant under Section 9 on 08.09.2021 for an amount of Rs. 46,64,249/- was not entertainable due to not fulfilling the threshold of Rs. 1 Crore as statutorily required under Section 4 of the Code with effect from 24.03.2020 - there is no merit in the Appeal, the Appeal is dismissed.
-
2022 (9) TMI 1295
Handing over possession of an asset of immovable property belonging to the Corporate Debtor to IRP - HELD THAT:- The Agreement to Sell, which is relied by the Appellant dated 30.12.2019 contemplated sale of the immovable property of the Corporate Debtor for a consideration of Rs.1.70 crores. In the Agreement, the Appellant claimed to have paid Rs.30 lakhs. There is no proof by the Appellant for making payment of balance amount of Rs.1.40 crores. The Leave and License Agreement, which is relied by the Appellant dated 30.12.2019 is an unregistered document, where the Corporate Debtor claims to have granted the permission to the Licensee to occupy the property together with building till the time Licensor and Licensee execute the Sale Deed - The Leave and Licensee Agreement is thus admittedly without any consideration.
The present is a case where ownership of the asset is not denied even by the Appellant. The submission, which has now been pressed by the learned Counsel for the Appellant is that Adjudicating Authority has no jurisdiction to entertain the Application - The Leave and License Agreement under which the Appellant is occupying the assets could not have been cancelled by the Adjudicating Authority, nor the Leave and License could be disregarded by the Adjudicating Authority by directing the Resolution Professional to take possession of the assets.
Whether the Appellant has any right to resist for taking possession of the assets by the IRP? - HELD THAT:- The Leave and License Agreement was executed without any consideration. Clause 2 of the Leave and License Agreement clearly contemplated that Licensor shall not charge any License Fee from the Licensee, for grant of Leave and License of the said premises. Section 25 of the Contract Act, 1872 provides that Agreement without consideration are void, unless it is in writing and registered - The present is a case where Leave and License Agreement was executed without any consideration and the document, which has been relied by the Appellant is an unregistered document. Thus, it is not saved by exception as carved out in Section 25, sub-section (1). The document is a void document, which shall not give any right to the Appellant to resist taking up the possession by the RP of the assets belonging to the Corporate Debtor.
The Adjudicating Authority has not committed any error in directing the Appellant to handover the possession of the assets belonging to the Corporate Debtor - Appeal dismissed.
-
2022 (9) TMI 1294
Seeking direction to the present Appellants to jointly and severally pay the Corporate Debtor the principal amount outstanding alongwith interest as claimed by the Resolution Professional - Sections 60(5) and 25 of the IBC - whether an amount of Rs. 50 lakh is outstanding for recovery from Appellant No. 1 Company and payable to the Corporate Debtor? - lifting of corporate veil - time limitation - HELD THAT:- After proper examination of records and financial statements of the Corporate Debtor and after due diligence, the RP has concluded from the ledger account of Appellant No. 1 company as maintained in the books of account of the Corporate Debtor as placed as at page 178 of the Appeal Paper Book (APB) that an amount of Rs. 50 lakhs was outstanding and due for payment. Following this discovery, we find that the RP/Respondent methodically took up the matter, as obligated under the IBC, by sending emails/letters at regular intervals to the Appellant No. 1 company including the statutory auditor as well as to Appellants No. 2 to 4 being Directors of Appellant No. 1 company to make good the outstanding amount along with interest @18% per annum.
There are no reasons to disagree with the findings of the RP/Respondent that the contents of the SPA do not indicate any role of the Corporate Debtor in the entire transaction - in the absence of any established link of the Corporate Debtor with this share related transaction between Appellant No. 1 and the SRS Ltd., the Adjudicating Authority has concurred in the findings of the RP/Respondent that the amount of Rs. 50 lakh remains outstanding and recoverable from the Appellant No. 1 Company and other Appellants jointly and severally.
Whether the recoverable amount of Rs. 50 lakhs is barred by limitation? - HELD THAT:- The claim that the share purchase transaction between the Appellant No. 1 company and SRS Limited amounted to recovery of the said sum lacks credence in the absence of any documentary substantiation. It is also an uncontested fact that there is no loan agreement between the Appellant No. 1 and the Corporate Debtor in this regard. Furthermore, nothing has been placed on record to indicate that this amount had to be repaid back within any specific time-line. In other words, the said sum was payable on demand anytime. Given the above, we hold that the applicability of limitation period in the present case does not stand to reason. Once the Corporate Debtor has come under CIRP, the logical corollary is that all actionable claims of the Corporate Debtor must be brought back into the corpus kitty of the Corporate Debtor - the RP/Respondent has rightly issued the demand notice on 29.04.2019 and 09.05.2019 to the Appellant No. 1 company as the said amount is due and payable from it.
Whether Appellant No. 1 company is alone liable for the recovery of the outstanding advance or the recovery can be jointly and severally sought against Appellant No.2, 3 and 4? - HELD THAT:- The Adjudicating Authority while disregarding the separate legal entity of the Appellant No. 1 company has also not recorded the reasons for holding the individual members jointly and severally liable for the obligations of the corporate entity. The Adjudicating Authority is no doubt entitled to lift the veil of the corporate entity but in doing so must delineate the reasons for piercing the corporate veil and show as to how and to what extent the individual members are liable. This not having been done by the Adjudicating Authority, we are of the considered opinion that the outstanding amount alongwith interest is recoverable from Appellant No. 1 company and not jointly and severally at this stage.
The Adjudicating Authority has not committed any error in holding that an outstanding principal amount of Rs. 50 lakhs along with 18% interest is due and recoverable by the Resolution Professional and to that extent affirm the impugned order - this amount alongwith interest is recoverable only from Appellant No. 1 company and therefore set aside that part of the impugned order which held that this amount is jointly and severally recoverable from Appellants no. 1 to 3 - Appeal allowed in part.
-
2022 (9) TMI 1220
Acceptance of claim of the Resolution Professional for payment of fee - Section 61 of Insolvency and Bankruptcy Code, 2016 - main contention of the Respondents before the Adjudicating Authority was that he was having only 25.54% of voting right being creditor and cannot be compelled to pay half of the share of remuneration and expenses and that he is not liable to pay the legal expenses which was not approved by the CoC and agreed to pay the fee payable to Resolution Professional and other expenses approved by CoC.
HELD THAT:- A conjoint reading of Regulation 25A, 26 and 27 of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 and Regulation 31 of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, the expenses incurred under the different heads covered by Regulation 31 of IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 shall be paid by the creditors - In the instant case, the cost incurred by erstwhile RP and remuneration payable to him was approved by CoC in the CoC meetings, the total amount payable is Rs. 16,09,402/-, thus, the legal heirs of deceased RP are entitled to claim the remuneration payable to erstwhile RP and cost incurred by him, approved in CoC meetings.
One of the major contentions of the Appellant herein is that the Appellant is having only 25.54% voting share and liable to pay its share of costs. As per provisions of the Act, the Respondent before the Adjudicating Authority Appellant herein, the creditors have to bear the cost of resolution process and remuneration payable to the Resolution Professional in proportionate to voting share, but the Adjudicating Authority directed the creditors to pay 50% of the cost payable to erstwhile RP. Therefore, the direction to the extent of payment of remuneration equally by the creditors is contrary to the provisions of ‘IBC’ and relevant Regulations.
The direction to pay equally with other creditor is erroneous, since, the Respondent before the Adjudicating Authority is having 25.54% voting share and therefore liable to pay the expenses in proportionate to the voting share of Appellant herein and before the Adjudicating Authority. Accordingly, the order of the Adjudicating Authority is modified to this extent - the Appeal is allowed in part modifying the order directing the Appellant to pay remuneration and cost of resolution process approved in CoC meeting i.e. Rs. 16,09,407/- proportionate to its voting share.
-
2022 (9) TMI 1219
Seeking admission of the claim - whether from the internal correspondence it can be concluded that loan disbursed to the Corporate Debtor by the Appellant stood discharged? - HELD THAT:- The internal correspondence between the Corporate Debtor and the RDPL who’s Promoters are same, does not lend support to their case that the loan payable by Corporate Debtor to the Appellant against disbursal of Rs.32.50 Crore stood discharged. The Adjudicating Authority, thus, erroneously relied on the said correspondence which is wholly irrelevant for proving any discharge of the loan amount.
There are no material to indicate that the loan which was disbursed by the DHFL to the Corporate Debtor was discharged at any point of time. The Adjudicating Authority committed error in refusing to admit the claim of the Appellant. Resolution Professional also did not correctly and properly look into the materials placed before it by the Appellant as well as the Ex-Director of the Corporate Debtor and erred in not verifying the claim of the Appellant.
The order passed by the Adjudicating Authority is unsustainable and deserved to be set aside - appeal allowed - decided in favor of appellant.
-
2022 (9) TMI 1166
Seeking contribution to the Corporate Debtor, under Section 66 (2) of IBC, 2016 - fraudulent and knocked off Receivables - Preferential Transactions - fraudulent motive/dishonest intention - diversion of Receivables of the Corporate Debtor - HELD THAT:- It is not in dispute that the Corporate Debtor Insolvency Resolution Process (CIRP) had attained finality and that the Resolution Plan became Functus Officio and he cannot file / pursue any Petition/ Application on behalf of the Company - The ingredients of Section 23 of the Insolvency & Bankruptcy Code, 2016 pertains to the Role of the Resolution Professional to conduct Corporate Insolvency Resolution Process (CIRP) in managing the affairs of the Corporate Debtor during the Resolution Process Period and not at a later point of time.
This Tribunal, significantly, points out that, whenever Fraud on a Creditor is perpetrated in the course of carrying on Business, it does not necessarily follow that the Business is being carried on with an Intent to Defraud the Creditor - One cannot remain oblivious of the candid fact that, if the Directors of a Company had acted on a bonafide belief that the Company would recover from its Financial Problems / Difficulties, then, they will not be held liable for the act / offence of Fraudulent Trading.
The aspect of Fraudulent Trading requires a very High Degree of proof, which is attached to the Fraudulent Intent. To put it emphatically, a more compelling Material / Evidence is required to satisfy the conscience of this Tribunal, on a preponderance of probability. Apart from that, an isolated/ solo fraud case, against the person, then, action in tort can be resorted to, as opined by this Tribunal. No wonder, a Creditor, who was defrauded, will have recourse to an alternative remedy, under Civil Law.
In the instant Case on hand, the Appellant / Applicant before the Adjudicating Authority (National Company Law Tribunal, Division Bench – II, Chennai) had filed application under Section 66 (1) of the Insolvency and Bankruptcy Code, 2016. In this connection, this ‘Tribunal’ significantly points out that in respect of an Application (Filed under Section 66 of the Insolvency and Bankruptcy Code, 2016) Fraudulent Trading / Wrongful Trading, by the Applicant/ Resolution Professional is concerned, Tangible Materials / Relevant Facts are to be pleaded in an Unambiguous and Unequivocal Terms, by supplying the necessary details / facts as the case may be.
The averments projected by the Appellant / Applicant in application do not come within the Four Parameters, of the ingredients of Section 66 of the Insolvency and Bankruptcy Code, 2016). Viewed in that perspective, the Impugned Order dated 01.07.2022 in application passed by the Adjudicating Authority (National Company Law Tribunal, Division Bench – II) in dismissing the Application, without Costs, is free from any Legal error. Consequently, the Appeal fails.
Application dismissed.
-
2022 (9) TMI 1165
Initiation of CIRP - NCLT admitted the application - Corporate Debtor failed to make repayment of its dues - Financial Creditors - debt declared as Non-Performing assets - applicability of time limitation - Notice under SARFAESI Act also issued - whether debt was acknowledged by the Corporate Debtor or there was offer of OTS? - HELD THAT:- There is no dispute that the account of corporate debtor was declared NPA on 30.09.2013 . It is also not in dispute that balance sheet for the year 2014-15, 2015-16 showing acknowledgement was brought to the notice of the Adjudicating Authority. It is also not in dispute that on 16.4.2014 the corporate debtor had submitted balance cum security letter acknowledging the debt. The said balance sheet of 2014-2015 and 2015-16 were uploaded by the corporate debtor on the portal of MCA website. Thereafter on 23.02.2017 the corporate debtor vide its letter dated 23.02.2017 submitted proposal for settlement of dues.
There is no reason to accept the plea of Learned Counsel for the appellant that the initiation of CIRP was barred by limitation. The question regarding acknowledgement has already been set at rest by three Judges Bench of Hon’ble Supreme Court in ASSET RECONSTRUCTION COMPANY (INDIA) LIMITED VERSUS BISHAL JAISWAL & ANR. [2021 (4) TMI 753 - SUPREME COURT]. Whatever points have been raised by the learned counsel for the appellant in the present case, is squarely covered by the Hon’ble Supreme Court in Bishal Jaiswal case. As per judgement of the Hon’ble Supreme Court in a proceeding under the IBC, provisions of Limitation Act is applicable though Section 238A was inserted in the IBC w.e.f. 6.6.2018. It has been clarified by the Hon’ble Supreme Court that it was clarificatory in nature and it was having retrospective effect.
The application under Section 7 of the Code was filed by the Financial Creditor within the period of limitation. The appellant has never raised any dispute on the question of debt i.e. recoverable amount nor a dispute has been raised regarding endorsement in the balance sheet or offer of OTS. In such view of the matter there is no reason to interfere with the impugned order - Appeal dismissed.
-
2022 (9) TMI 1129
Invocation and encashment of Performance Bank Guarantee(s) (PBG) granted by the Appellant - surety in a contract of guarantee to a ‘Corporate Debtor’ - Scope of section 14 of IBC - whether fraud or irretrievable injustice has been done? - HELD THAT:- Section 14(3)(b) states that a surety in a contract of guarantee to a ‘Corporate Debtor’ is not covered under Section 14 - Section 3(31) Describe Security Interest and states that Security Interest shall not include a Performance Bank Guarantees.
A Performance Bank Guarantee does not enjoy the benefits of a moratorium under Section 14 of the Code. It is pertinent to mention that the CIRP commenced on 07.11.2019 and notices for invocation were sent prior to the commencement on 18.10.2019. The actual disbursement took place pursuant to the Order of the Hon’ble High Court of Telangana.
Having regard to the fact that the Bank Guarantees stood invoked vide letter dated 18.10.2019 by the ‘Corporate Debtor’ on the ground that the Appellant has failed to perform its obligations in terms of the Agreements, read with Clause 2 of the Bank Guarantees and also keeping in view that there are no material on record with respect to any fraud, we do not find any illegality or infirmity in the Order of the Impugned Order. The question of fraud has been dealt with by the City Civil Court, which held that there was ‘no element of fraud’ involved.
It is the case of the Resolution Professional that the amount of Rs.2,50,16,972/- be released and permitted to be utilised against the overall outstanding amount of Rs.13,06,30,410/- to ensure that the plant of the ‘Corporate Debtor’ is kept running as a ‘Going Concern’ - the amount may be utilised for the functioning of the ‘Corporate Debtor’ as a Going Concern.
Appeal dismissed.
-
2022 (9) TMI 1128
Validity of Resolution Plan - only 2% of their ‘Claims’ has been admitted, while the workman and other statutory dues have been paid 100% - HELD THAT:- Section 24(3)(c) specifies that ‘Operational Creditors’ or their representatives if the amount of their aggregate dues is not less than 10% of the dues are to be given Notice of each CoC Meeting, Section 24(4) of the Code specifies that the representative of the ‘Operational Creditors’, may attend the Meeting of CoC but shall not have any right to vote in these Meetings - it cannot be stated that there was any ‘prejudice’ caused to the Appellants herein in terms of Section 24(3) not having been complied with. Also, there is no documentary evidence on record to establish that a name of a representative of the ‘Operational Creditors’ was indeed given to the RP and the RP had chosen to ignore the same, as it is the specific case of the RP that no such information was ever tendered to him.
There is no material irregularity warranting any interference as it is compliant with Section 30(2) of the Code.
Having regard to the fact that the Resolution Plan was approved on 17.01.2021 by the CoC and subsequently by the Adjudicating Authority on 08.04.2021 and more than a year has lapsed, and also keeping in view that the ‘Operational Creditors’ do not have any Voting Right in the CoC and that the Commercial Wisdom of the CoC is non-justiciable and when there is no material irregularity on the face of the record, there are no illegality or infirmity in the Order of the Adjudicating Authority.
Appeal dismissed.
-
2022 (9) TMI 1070
Constitution of Stakeholders Consultation Committee (‘SCC’) - Nominations of members - entity hostile to the interest of the Corporate Debtor - Regulation 31A(3) of the Liquidation Regulations - HELD THAT:- It is the case of the Respondent that the SCC has to be constituted based on the list of Stakeholders which in turn is prepared on the basis of the claims received and accepted by the Stakeholders. The list of Stakeholders present in the case does not contain the name of the Appellant and therefore the Liquidator has erred in adding the Appellant as a representative of the Shareholder.
A perusal of the material on record shows that as none of the Shareholders have filed their claims before the Liquidator, in terms of Regulation 20 of the Liquidation Regulations, their names do not appear in the list of Stakeholders prepared in terms of Regulation 31 of the Liquidation Regulations. The Liquidator constituted SCC in terms of the Regulation 31A based on the Shareholding pattern of the ‘Corporate Debtor’ as per the available records. As provided for under Regulation 31A(3) of the Liquidation Regulations, the Liquidator, to facilitate the class of Shareholders to nominate the representatives sent emails to all the five Shareholders on 06.02.2021. Admittedly, the first Respondent has been nominated as a representative by three of the five Shareholders, including himself having a combined shareholding of 24.99%. The other two Shareholders having 75.01% combined shareholding have not nominated the Appellant as their nominated representative and in fact did not nominate anyone. Therefore, the Liquidator rejected the nomination of the first Respondent on the ground that the nomination was not made unanimously by all the Shareholders.
The Adjudicating Authority has rightly held that the nomination of the first Respondent as the representative of the Shareholders cannot be rejected by the Liquidator simply on the ground that the said nomination was not made unanimously by all the Shareholders and has further held that as the first Respondent was nominated by or i.e., the 3 out of 5 Shareholders, the question of applicability of the provisions under Regulation 31A(4) does not arise.
This Appeal fails and is accordingly dismissed.
-
2022 (9) TMI 1069
Seeking direction to Resolution Professional to restore the claim of the applicant as it was lodged in accordance with the arbitration award - seeking to direct the RP to provide details, documents and information sought by the applicant in stipulated time period - HELD THAT:- The Respondent admitted the claim based on calculation of the Appellant wherein the Appellant itself has given treatment to the security deposit by deducting it from the outstanding amount, the interest rate as per the arbitration award dated 04.04.2016 was @ 18% which is also not disputed by the Appellant and further treatment also has been given to the information provided by the RBI on 19.12.2019 with respect to the interest on the security deposit, which again has been admitted by the Appellant before the RBI. The Resolution Professional has therefore not adjudicated but only has collated the information provided by the Appellant, Corporate Debtor and the RBI. Hence, we are of the view that there is no merit in the Appeal, the instant Appeal deserves to be dismissed.
The Adjudicating Authority has considered the submissions made by the Appellant and have held that the Hon’ble Supreme Court in the case of COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LIMITED THROUGH AUTHORISED SIGNATORY VERSUS SATISH KUMAR GUPTA & OTHERS [2019 (11) TMI 731 - SUPREME COURT] relied by the Resolution Professional, wherein it is observed that it is the responsibility of the Resolution Professional to collect, collate and finally admit claims of all creditors, the role of the Resolution Professional is not adjudicatory but administrative.
Registry to upload the Judgment on the website of this Appellate Tribunal and send the copy of this Judgment to the Adjudicating Authority (National Company Law Tribunal, Ahmedabad Bench, Ahmedabad Court 2), forthwith.
-
2022 (9) TMI 1068
Seeking release of Corporate Debtor from the rigor of Corporate Insolvency Resolution Process - non-payment of installment and interest the loan accounts, categorized as NPA - Section 13(2) of the SARFAESI Act, 2002 - HELD THAT:- The amount reflected in the Balance Sheet as on 31.03.2018 at page no. 357 of the ‘Affidavit in Reply’ reflects Principal amount of Rs. 30,11,22,262/- and interest outstanding Rs. 388,47,984/- the details of security are also reflected therein. In Note-VII interest accrued and due on borrowings of these non- convertible debentures is reflected in other current liabilities at Rs. 50,57,75,337/-. All these reflects that there is a large amount due as far as the job of reconciliation is concerned the code goes by the filing of claim and its scrutiny in accordance with the Code and related Regulation to be verified in primarily by the Interim Resolution Professional/Resolution Professional followed by the scrutiny and approval by Committee of Creditors and its acceptance by the Adjudicating Authority.
There is no iota of doubt that the debentures being a long term borrowing a debt under Section 5 (8) - it is very much clear that the debt is due and payable in law and the amount is exceeding the basic threshold of the Code and hence, we are in agreement with the order of Adjudicating Authority and accordingly, the order of Adjudicating Authority is upheld.
The Appeal is accordingly dismissed.
|
