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Insolvency and Bankruptcy - Appellate Tribunal - Case Laws
Showing 1 to 20 of 36 Records
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2023 (2) TMI 1046
Seeking intervention of petition - Adjudicating Authority by way of the impugned order, without even issuing notice or considering the issue of fraud, erroneously dismissed the application for intervention filed by the Appellants - HELD THAT:- The application under Section 7 by a Financial Creditor against the Corporate Debtor was pending for consideration and for admission and in the meanwhile, the Appellants are seeking intervention, not on the ground that the Corporate Debtor defaulted in payment of amounts to them, but, on the ground that the Company Petition filed by the Central Bank of India, the Respondent No. 2 herein was not for legitimate reasons but it is a malicious prosecution that falls under Section 65 of the IBC. The Appellants have been ostensibly setup by the Respondent No. 1 Company for the purpose of derailing the lawf....... + More
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2023 (2) TMI 1035
Challenging the order for Liquidation of Corporate Debtor - HELD THAT:- This Tribunal is of the earnest view that the Appellant has failed to meet the basic requirements for consolidation of CIRP Viz. that the Assets of a Corporate Debtor, cannot be sold as a standalone unit. The Committee of Creditors, in its 8th CoC Meeting, had resolved to recommend the Liquidation of the Corporate Debtor by 100% Voting Shares. Having regard to the fact that, the CIRP, was invoked under Section 10 of the Code way back in the year 2021, the Application for Consolidation, was filed belatedly after one year and also the fact that the Corporate Debtor, has failed to satisfy the requirements necessary for Consolidation, this Tribunal, does not see any illegality or infirmity in the Impugned Order of the Adjudicating Authority, (National Company Law Tribunal, Division Bench-I, Chennai), allowing Liquidation. Appeal dismissed.
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2023 (2) TMI 1034
Seeking directions against the Resolution Professional and the CoC to consider the Resolution Plan - main case of the Appellant herein is that the Adjudicating Authority’ ought not to have dismissed IA446/2021 on the ground that the CIRP period of 330 days is over and ought to have exercised its discretion and extended the period giving time to the CoC to consider its revised Resolution Plan. HELD THAT:- It is seen from the record that the CoC has discussed in detail the Plan of the Resolution Applicant in their various Meetings and suggested for modifications in the Resolution Plan. It is pertinent to mention that a total time of 281 days i.e., from 14.07.2020 to 20.04.2021 was given for submission of the revised Resolution Plan and a final call was given by the RP stating that if no signed Plan is received on or before on 20.04.20....... + More
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2023 (2) TMI 1033
Right of the Resolution Professional - Non-cooperation by the Directors of Corporate Debtor - NCLT rejected the application of RP with cost of Rs. 25000/-- non-application of mind by the Adjudicating Authority - HELD THAT:- When we look into the order itself, it is clear that in 25.04.2022 order, liberty was reserved to RP to file an Application, if there is no continued cooperation from the suspended Board of Directors, for seeking prosecution under Section 236 of the Code. The prosecution under Section 236 is a different aspect from running a CIRP as per timeline prescribed in the IBC. The mere fact that in an earlier Application filed by RP, liberty was granted only to file prosecution, does not preclude the Adjudicating Authority to consider a subsequent Application filed by the RP due to continued non-cooperation by suspended Directo....... + More
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2023 (2) TMI 1032
Condonation of delay of 79 days in filing appeal - appeal could not be filed in time - whether the delay was properly explained or not - whether the delay was wilful or wanton? HELD THAT:- It cannot be gainsaid, that the delay in question, needs to be explained, from the date, the time was running out, till the date of filing of an Appeal or an Application, as per the decision of the Hon’ble Supreme Court of India, in the matter of Ramlal v. Rewa Coal Fields Limited [1961 (5) TMI 54 - SUPREME COURT]. The Rules of Limitation, prescribe that a Remedy, can be exercised, only upto a certain point of time and not subsequently / later, as the case may be. In reality, the Litigants / Parties / Stakeholders, are to be diligent, and they are not to be an indolent persons, and not to adopt a careless and a negligent attitude, keeping in mind ....... + More
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2023 (2) TMI 951
Initiation of CIRP - Operational Creditors - non-service of demand notice - Transfer of Winding up Petition - HELD THAT:- It is crystalline clear that the Adjudicating Authority (National Company Law Tribunal, Hyderabad Bench), ought to have treated the proceedings transferred under Section 434 of the Companies Act, i.e. CP No. 311 of 2016, as an Insolvency Petition, under Section 9 of the I & B Code, 2016, and should have assigned an appropriate number. The Petition under Sections 433 and 434 of the Companies Act, 1956, as instituted before the Hon’ble High Court, cannot be treated to be an application under Section 9 of the Code, 2016 in terms of Rule 5 of the Companies (Transfer of Pending Proceedings) Rules, 2016, and the said observation is an incorrect one, especially in the teeth of the Order of the Hon’ble High Cou....... + More
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2023 (2) TMI 950
Sufficient stamp duty or not - whether the claim is being barred by time or not - Financial Creditors can take benefit of limitation as per the provisions of Section 4(1)(b) read with 4(2) of the 1961 Act or not - seeking substitution of RP - HELD THAT:- The proceedings under the Rajasthan Stamp Act are separate and independent proceedings to the proceedings under the IBC initiated by the Financial Creditors under Section 7 of the IBC. The admission of claim by the RP, took place much before the proceedings initiated under the Stamp Act and which were based on other relevant materials as noted above cannot be faulted on the ground that Stamp Authorities have declared deficiencies in several documents relied by Financial Creditors - the submission of learned Counsel for the Appellant cannot be agreed upon, that on the ground of orders pass....... + More
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2023 (2) TMI 949
Related parties to Corporate Debtor or not - continuation with the Committee of Creditors or not - requirement to reconstitute the Committee of Creditors or not - it is the stand of the Appellant, that it ceased to be ‘Related Parties’, before the relevant date, as contemplated under the I & B Code, 2016 - service of notice. Service of notice - HELD THAT:- In fact, the Onus, to prove Service of Summons, is on a Plaintiff. Where a question of Service of Notice, arises, the Court, is duty bound to Record a Finding - The Service of Summons, by a Courier, at the instance of Plaintiff, is permissible, as per decision of the Hon’ble Supreme Court of India in (2005) 6 SCC 344 [2005 (8) TMI 714 - SUPREME COURT]. Other Mode of Service are such as (a) Courier (b) Facts and (c) Electronic Mail Service or Service by Litigant, di....... + More
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2023 (2) TMI 900
Liability to pay IRP fees and expenses - Whether in the given facts of the present case, the IRP is entitled to claim fees and expenses incurred in the CIRP proceedings and, if so, whether it is incumbent upon the Operational Creditor/Respondent to bear such fees/expenses subject to their being reasonable? - HELD THAT:- It is an admitted fact that the CIRP commencement date was 24.02.2020. The IRP was appointed on 09.03.2020 on which date he had sought details from the Operational Creditor and suspended management to proceed with CIRP. IRP had issued a public announcement on 11.03.2020 in accordance with CIRP Regulation 6. It is also an admitted fact that no claims were filed by the Operational Creditor or any other creditor till the time of filing of Section 19 application. The date of filing Section 19 application before the Adjudicatin....... + More
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2023 (2) TMI 899
Validity of approval of Resolution Plan - rejecting the claim as financial debt. - HELD THAT:- The amount of Rs.50 Lakhs which was given by the Appellant for submitting Bid Bond Bank Guarantee was the share of the Appellant, a member of the consortium. - The Adjudicating Authority has rightly in its conclusion observed that the disbursement was not for time value of money and the ingredient of Section 5(8) of the I&B Code has not been made out - there are no error in the order of the Adjudicating Authority holding the claim of the Appellant as not a financial debt. Submission of the counsel for the Appellant that the amount was given in trust since it was for specific purpose, hence, it should be kept out of the assets of the Corporate Debtor - HELD THAT:- It is relevant to notice that before the Adjudicating Authority no such pleadin....... + More
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2023 (2) TMI 898
Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - application has been filed by the Operational Creditor without serving mandatory notice of demand in terms of Section 8 of the Code - Whether after transfer of winding up proceeding as per the Companies (Transfer of Pending Proceedings) Rules, 2016 r/w amendments made in Section 434 of the Companies Act, 2013 as applicable to the I&B Code by Act 26 of 2018, the winding up petition which has been filed on the ground of company unable to pay its debt for treating the application under Section 9 of the Code notice under Section 8 of the Code is mandatory and without service of notice under Section 8 proceedings so transferred cannot be treated as proceedings under Section 9? Application under Section 9 required to be filed and maint....... + More
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2023 (2) TMI 735
Initiation of CIRP - Corporate Debtor failed to make repayment of its dues - application was dismissed on the ground of time limitation - whether the Account between the parties could be construed as a running Account? - HELD THAT:- From the Judgement in Bharat Skins Corporation Vs. Taneja Skins Corporation Private Limited [[2011 (12) TMI 716 - DELHI HIGH COURT]] it is clear that for an Account to be termed a running Account it must be demonstrated that there are Debits and Credits entries going on simultaneously or on a regular basis and the balances are struck with some periodicity. Non-payment of invoices and payment without specifying a particular invoice does not make the transaction a running Account. As can be seen from the invoices/communication dated 18.04.2018, 24.04.2018, 12.05.2018, 12.10.2018, 26.10.2018, 15.11.2018, 11.12.20....... + More
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2023 (2) TMI 671
Maintainability of petition - Petitioner is neither a Member of the first Respondent Company nor did the 24 persons who had given consent to file the Company Petition are Members of the CSITA - whether the Appellant is a Member of the Section 8 Company and has the locus standi to file this Appeal and also whether the Petitioner could have file the Petition under Sections 241 & 242 of the Companies Act, 2013? HELD THAT:- As per the definition, a person cannot be treated as Member of the Company unless his name is entered in the Register of Members of the Company - The term Member is different from that of Shareholder. A Shareholder can be Shareholder by acquiring shares but will not be Member till his name is entered in the Register of Members of the Company. This definition is relaxed in case of Section 244 of the Companies Act, 2013,....... + More
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2023 (2) TMI 670
Preferential and fraudulent transaction - Seeking avoidance of certain preferential and fraudulent transactions carried out by the suspended directors of the Corporate Debtor - Sections 43 and 66 of the IBC - Whether the application filed by the Resolution Professional with regard to transactions under Sections 43 and 66 is rendered non-maintainable on grounds of non-compliance to Regulation 35-A if it is not filed on or before 135th day of ICD and if formation of opinion and making a determination on such transactions does not take place on or before the 75th day and 115th day of ICD respectively and whether these periods stipulated by the said Regulation is mandatory or directory? - HELD THAT:- It is commonsensical axiom that the time taken by a Resolution Professional to determine an avoidance transaction is dependent on a multitude of....... + More
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2023 (2) TMI 486
Liquidation of the Corporate Debtor namely Ajanta Offset packaging Limited - approval plan quashed - Adjudicating Authority in the impugned order has held that Appellants were not eligible to submit the Resolution Plan under Section 29A read with Section 240A since the date when application for submitting EOI was issued, the Appellants were not eligible - HELD THAT:- From the facts specified, it is clear that Form G was issued by the Resolution Professional on 19.08.2020 in pursuance of which two Resolution Applicants filed the Resolution Plan which were considered but were not approved by the CoC and Resolution was also passed by the CoC on 05.06.2021 for liquidation and an application was filed for liquidation by the Resolution Professional on 02.07.2021, on which application notices were issued and it was only at that stage when Appell....... + More
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2023 (2) TMI 441
Remission of Resolution Plan back to the CoC for reconsideration, at the request of Financial Creditors - appellant contends that Resolution Plan having been approved by the Adjudicating Authority, there is no jurisdiction in the Adjudicating Authority to send back the Resolution Plan for reconsideration at the request of Financial Creditor - whether the approved Resolution Plan is binding on the CoC which can neither be withdrawn nor sent back for modification? - HELD THAT:- The Judgement of the Hon’ble Supreme Court in EBIX SINGAPORE PRIVATE LIMITED VERSUS COMMITTEE OF CREDITORS OF EDUCOMP SOLUTIONS LIMITED & ANR., KUNDAN CARE PRODUCTS LIMITED VERSUS MR AMIT GUPTA AND ORS. AND SEROCO LIGHTING INDUSTRIES PRIVATE LIMITED VERSUS RAVI KAPOOR RP FOR ARYA FILAMENTS PRIVATE LIMTIED & ORS. [2021 (9) TMI 672 - SUPREME COURT] catego....... + More
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2023 (2) TMI 400
Seeking approval of Resolution Plan - HELD THAT:- When we look into the reasons given by the Adjudicating Authority for passing the impugned order, it is clear that the Adjudicating Authority has relied on the pleas taken up by several Applicants and the CoC that due to pandemic (COVID-19) large number of Applicants could not come forward to give a good offer and after pandemic, now large number of Applicants have now approached the Adjudicating Authority, showing their willingness to submit a Plan for higher value. The CoC has also expressed its no objection for receiving and entertaining the Applicants. The question whether the CIRP which was finalized during the Covid-19, is liable to be discarded on the spacious ground that Plan was approved during the Covid-19 period, has to be answered in negative. Before the Hon’ble Supreme C....... + More
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2023 (2) TMI 378
Liquidation of Corporate Debtor - Section 33 of the I&B Code read with Rule 11 of the NCLT Rules 2016 - HELD THAT:- It is observed that during the Corporate Insolvency Resolution Process all possible steps as required under the Insolvency and Bankruptcy Code, 2016 were taken and the Committee of Creditors did not receive any resolution plan/proposal for revival of the Company. Further, the Committee of Creditors in its wisdom has resolved with 99.78% voting share in favour of the liquidation of the Company. The impugned order passed by the Adjudicating Authority (National Company Law Tribunal, Mumbai Bench, Court No.-I) is hereby affirmed - Appeal dismissed.
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2023 (2) TMI 377
Violation of principles of natural justice - It is the case of the Appellant that the Adjudicating Authority erred in passing the impugned order ex-parte without hearing him and without giving any opportunity to defend his case - institution of criminal prosecution against various parties i.e including Appellant herein - Outstanding and payable dues or not. Denial of Opportunity of Being Heard/ Ex-parte Order - HELD THAT:- This Appellate Tribunal do not find any error in the impugned order and find that adequate opportunities were made available to the Appellant who has chosen not to respond or defend his case and this cannot be ground of not being heard. Dues Outstanding & Payable or not - HELD THAT:- After detailed examination and recording reasons, the Adjudicating Authority came to conclusions that the transactions are covered und....... + More
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2023 (2) TMI 376
Rejection of application for replacement of Resolution Professional with one Mr. Sapan Mohan Garg though approved by the Committee of Creditors (CoC) by a voting share of 76.69% - Whether the CoC in passing a resolution to replace the Resolution Professional in the facts of the present case has committed any breach of the IBC and regulations framed thereunder? - HELD THAT:- The statutory provisions and related Regulations framed thereunder having laid down in unambiguous terms the manner and procedure for replacement of the Resolution Professional and the CoC having acted in conformity with those provisions, the CoC was well within its rights to replace the Resolution Professional with a new one of its own choice. There is no disagreement that the replacement of Resolution Professional is complete when the required decision is taken by th....... + More
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