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Insolvency and Bankruptcy - Appellate Tribunal - Case Laws
Showing 1 to 20 of 51 Records
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2023 (3) TMI 1333
Initiation of CIRP - Priority of consideration and admission of application - Effect of Interim Moratorium - It is the main case of the Appellant that the Section 95 Application was filed by them three days prior to the date when the State Bank of India, had filed their Application and therefore their Application, ought to have been admitted first - whether Interim Moratorium, ought to have commenced from the date of filing of the defective Application, as it would amount to violation of natural justice? HELD THAT:- It is seen from the Record that the Adjudicating Authority, has not yet admitted or rejected the Application, filed by the State Bank of India, under Section 95. It is seen from the record that the Section 95 Application has not been admitted against the said Personal Guarantor. Liberty has also been given in accordance with l....... + More
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2023 (3) TMI 1284
Seeking release of pending amount (for work done prior to CIRP period or not) - it is construed that the Company, had received the money from the Employer and the same is due to be transferred to the Appellant herein - whether the work was executed prior to the initiation of CIRP? - HELD THAT:- As per the terms of the I & B Code, 2016, for any work done prior to the CIRP period, and for amounts pending in relation to the same, the Creditor, is required to file its Claim, with the Resolution Professional or the Liquidator, as the case may be. In the instant case, the Appellant, had filed the Form C for Admission of the Claim, in relation to the pending amount 26.08.2019, one day after the last date for submission of the claim. The Liquidator had sent an email that the claim submitted by the Appellant, cannot be considered by the Liquid....... + More
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2023 (3) TMI 1283
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - date of default - main case of the Appellant is that the previous Order of this Tribunal is dated 09.09.2021, whereby and whereunder six months time was granted and the same ended on 09.03.2022 and this date of 09.03.2022, cannot be taken as the Date of Default - HELD THAT:- It is seen from the record that there is correspondence dated 14.01.2022 and OTS Letter dated 27.11.2019. Apart from the fact that the issue of Limitation, is already answered in the previous Order and has attained finality, this Tribunal, is of the considered view that, it is not the Date of NPA, which is 30.09.2015, which is to be taken into consideration, keeping in view the facts of the attendant case, but rather, it is the Date of De....... + More
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2023 (3) TMI 1282
Approval of Resolution Plan - actions of the Resolution Professional and the CoC are consistent with the NCLAT order or not - HELD THAT:- On looking into order dated 18.01.2023 passed by this Tribunal, it is clear that this Tribunal directed the Resolution Professional to initiate fresh voting process on the Resolution Plans received in the process which was to be completed within a month. The Adjudicating Authority has noticed that in pursuance of the order dated 18.01.2023, all the Resolution Plans were put before the CoC in its meeting dated 25.01.2023 and voting result was declared in its meeting dated 10.02.2023 where all plans were rejected by voting share of 89.10% and it was decided by the CoC to issue fresh RFRP. Consideration of all Resolution Plans and voting on the plans by the CoC as per direction of this Tribunal dated 18.01....... + More
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2023 (3) TMI 1281
Condonation of delay for four days in filing of the appeal - Appellant was in jail and was not keeping well and admitted in the jail hospital - Sufficient cause for delay or not - whether the delay caused in filing of the appeal much beyond the period of 45 days can be condoned by this Tribunal? - HELD THAT:- Section 61(1) provides for a right of appeal to an aggrieved person. Section 61(2) provides a period of limitation 30 days for preferring an appeal in terms of Section 61(1) before the Appellate Authority. Section 61(2) proviso provides another period of 15 days which can be extended in case the Appellant satisfies the Appellate Authority about the existence of a sufficient cause for not filing the appeal in time. There is no further provision in the Code for looking into the aspect of condonation of delay beyond the period of 15 day....... + More
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2023 (3) TMI 1279
Payment of Electricity dues during CIRP period - application rejected since the electricity Department cannot use the non-payment of pre-CIRP dues for disconnecting the electricity - HELD THAT:- There can’t be any dispute that the Appellant/Monitoring Professional/Resolution Professional were liable to make the payment of the dues during the CIRP period, which according to Appellant stood paid. It is observed that in the event any amount is still due with regard to the electricity dues during the CIRP, it shall be open for the Department to issue bill and realise the same. It is further made clear that R-1 having not filed any claim in the CIRP regarding pre-CIRP dues, it is not entitled to recover the pre-CIRP dues and on non-payment of the said amount, to disconnect the electricity. The prayers made in the application does not require any consideration. Appeal disposed off.
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2023 (3) TMI 1278
Condonation of delay of 15 days (beyond the period of entire 45 days) in filing appeal - delay caused on medical grounds - sufficient cause or not - HELD THAT:- As per Section 61(1) any person aggrieved by the order of the Adjudicating Authority under this part may file an appeal to the Appellate Tribunal. As per Section 61(2) every appeal which is to be filed under Section 61(1) has to be filed within 30 days before the Appellate Tribunal. As per 61(2) proviso the Appellate Tribunal has the jurisdiction to extend the period of 15 days if it is satisfied that there is a sufficient cause for not filing the appeal within the prescribed time - The present appeal has been filed beyond the period of 45 days i.e. a period of 30 days provided in Section 61(1) and 15 days provided in proviso to Section 61(2). Reliance placed upon two judgments of....... + More
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2023 (3) TMI 1213
Initiation of CIRP - Financial Creditors or Operational creditors - receivables sold or discounted on a non-recourse basis - financial debt or not. Whether the Appellants in the second appeal (Financiers) are the Financial Creditors as against the Corporate Debtor or have stepped in to shoes of the Seller as an Operational Creditors and as such application filed by the Appellants in the second appeal under Section 7 of the Code has rightly been held to be not maintainable and were rightly relegated to avail their remedy of filing the application under Section 9 of the Code? HELD THAT:- The Agreement (COR) was entered into between the Seller, Financier and the Corporate Debtor (As customer). As per the agreement, the Seller had agreed for discounting of invoice of the customer (CD) for the creation of the right and interest in the invoice ....... + More
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2023 (3) TMI 1175
Effect of the moratorium under Section 14 of the Insolvency and Bankruptcy Code, 2016 - should be limited to the same project i.e Winter Hills only or not - seeking appropriate direction to the Ld. IRP/ Respondent to effect the moratorium limited to the real estate project Winter Hills only and not to enlarge the effect of the moratorium against the other assets of the Corporate Debtor or against the entire company of the Corporate Debtor - as per applicant role of IRP/ Respondent should be confined only with respect to project Winter Hills-77 instead of whole company of the Corporate Debtor. HELD THAT:- The intent of Section 7 of the I & Code, 2016 is pretty clear and the role of Adjudicating Authority has been clearly defined to examine the existence of debt and subsequent default on payment on due date by the Corporate Debtor and a....... + More
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2023 (3) TMI 1076
Winding up of company - Section 241 and 242 of the Companies Act, 2013 - HELD THAT:- Reliance has been placed by Ld. Counsel for the Respondent No. 2 in the case of MSDC RADHARAMANAN VERSUS M. SD CHANDRASEKARA RAJA [008 (3) TMI 471 - SUPREME COURT], wherein the Hon’ble Supreme Court has held in the context of the Companies Act, 1956 that the jurisdiction of the Company Law Board (now NCLT) must be considered having regard to the complex situation(s) which may arise in the cases before it. No hard and fast rule can be laid down. If an application is filed under Section 433 or Section 397/398 of the Companies Act, 1956, (now Section 241/242 of the Companies Act, 2013), an order of winding up may be passed but the Company Law Board in a winding up application may refuse to do so, if any other remedy is available. The Company Law Board ....... + More
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2023 (3) TMI 1075
Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of discernible pre-existing dispute surrounding the debt claimed to be due and payable by the Operational Creditor or not - HELD THAT:- The Corporate Debtor in its reply dated 08.08.2020 to the Section 8 demand notice had disputed both the quantum of operational debt and also deficiencies in respect of discharge of contractual obligations by the Operational Creditor. There are no material to have been placed on record by the Operational Creditor wherein the Corporate Debtor can be said to have unambiguously admitted the operational debt claimed by the Appellant - the Adjudicating Authority has rightly observed in the impugned order that the Corporate Debtor had raised an issue with regard to the exis....... + More
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2023 (3) TMI 1017
Initiation of CIRP - Financial Creditors or not - unsecured loan - Financial Debt within the meaning of Section 5(8) of IBC or not - time value of money is an essential ingredient in classification of Financial Debt - HELD THAT:- The findings given by the Adjudicating Authority are agreed upon, that the Appellant has not produced any agreement between the Appellant and the Respondent that any interest would be payable by the Respondent/Corporate Debtor against the alleged loan. Further, the Adjudicating Authority rightly come to the conclusion that in order to qualify the debt to be a ‘financial debt’, it is necessary that the amount advanced to the Corporate Debtor is against the time value of money, which is totally absent in the present matter. Further, it was held that since the Appellant is not a financial creditor as the....... + More
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2023 (3) TMI 954
Liquidation of Corporate Debtor - non-execution of decrees - Section 33 of I&B Code - HELD THAT:- Admittedly, the Appellant is an Association ventilating its grievance against appointment of the Respondent as Liquidator. The fact remains that the RP has not challenged the appointment of this Respondent as Liquidator and this Tribunal does not find any allegations against this Respondent. No one aggrieved against the appointment of this Respondent as Liquidator except the Appellant and no genuine cause or reason shown neither any illegality or irrational has been pointed out by the Appellant except mere appointment as Liquidator by the Adjudicating Authority. Moreover, the Appellant failed to explain that the Adjudicating Authority lacks jurisdiction in appointing the Respondent as Liquidator. Furthermore, the CoC it its 4th meeting he....... + More
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2023 (3) TMI 837
Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of disputes between the parties prior to the issuance of the Demand Notice - HELD THAT:- It is observed that the emails dated 07.08.2014, 27.03.2015, 01.02.2016, 25.03.2016 and 08.04.2016 sent by the Respondent to the Appellant shows that there was pre-existence dispute between the parties before issuance of Demand Notice which is not permissible in IBC to initiate the Corporate Insolvency Resolution Process. Therefore, the reasons assigned by the Adjudicating Authority in the impugned order is fully agreed upon. Keeping in view of the facts, there are no merit found in the Appeal to interfere with the order impugned passed by the Adjudicating Authority. The impugned order passed by the Adjudicating Authority (National Company Law Tribunal, Court No. IV, New Delhi) is hereby affirmed. Appeal dismissed.
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2023 (3) TMI 836
Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors (Homebuyers) - minimum threshold as required under Section 7 of the I & B, Code, 2016 (regarding minimum number of allottees), met or not - Respondents stated that total 39 Financial Creditors file the original application filed under Section 7 of the I & B Code, 2016 who were allotted 20 Real Estate Units of a Phase II having 170 units and therefore met the threshold limits. Whether, the Application under Section 7 of the I & B Code, 2016 was complete and without defects and the same was considered accordingly, by the Adjudicating Authority? - HELD THAT:- From the reading of the ingredients of Section 7 of the Code, it is obvious that, if an Application, filed under Section 7 of the I & B Code, 20....... + More
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2023 (3) TMI 805
Seeking leave for filing an appeal - locus standi - concept of Sufficient Cause, is alien to the maintaining of an Appeal, under Section 61 (1) of the I & B Code, 2016 or not - the plea of the Petitioner / Appellant is that, there is no need to prove any Sufficient Cause, to prefer an Appeal - Validity of Process of Sale and Realisation - Sale of the Corporate Debtor, as a Going Concern, by means of a Private Sale. HELD THAT:- In the instant case, consequent to the Order dated 19.01.2023, passed by the Adjudicating Authority, the Sale as a Going Concern for the Corporate Debtor, was allowed by the Adjudicating Authority, a Sale Agreement, was executed by the 2nd Respondent with the Corporate Debtor and the 2nd Respondent, took over the Whole Management and the Sale Proceeds, were distributed to the Stakeholders, as per Section 53 of t....... + More
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2023 (3) TMI 804
Sale of the Corporate Debtor, as a Going Concern, by means of a Private Sale - Seeking to consider the Proposal of the Petitioner / Appellant, for Swiss Challenge Method - wanton omission, breach and collusion, in between the Parties, in Compliance of the Order - it is the stand of the Petitioner / Appellant that the Offer of the Petitioner / Appellant, is more than the value offered by the 2nd Respondent, before the 1st Respondent, and that the Appellant’s Proposal dated 08.11.2021, to purchase the Corporate Debtor / Company, as a Going Concern, is much beneficial to the Stakeholders Committee and Economy, at large. HELD THAT:- It must be borne in mind that the Proposals of one M/s. Galaxy Freight Systems and the Proposal of the 2nd Respondent / G C Logistics India Private Ltd., was placed before the Stakeholders Consultation Commi....... + More
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2023 (3) TMI 803
Condonation of 55 days delay in filing the Appeal - delay due to health problems - HELD THAT:- The power to condone delay vested in this Tribunal under Section 61 (2) proviso is only 15 days. The judgment of this Tribunal in Chennai Bench in M. K. Resely & Ors. vs. Union Bank of India & Ors [2022 (11) TMI 1155 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , CHENNAI] which has been relied by the Appellant in support of his submission is needed consideration. In the said case, this Tribunal relying on Section 14 of the Limitation Act has granted exclusion of the period from 25.01.2022 to 22.06.2022, during which period the Appellant of that case had indulged in bonafide litigious activity in preferring the Writ Petition No. 2832/2022 and Writ Appeal No. 537 of 2022 before the High Court of Kerala. The grounds as given in the application....... + More
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2023 (3) TMI 747
Approval of Resolution Plan - illegal constitution of the CoC by including ‘related parties’ - Appellant HIL has thus claimed that the Impugned Order was passed by the Adjudicating Authority without considering the information regarding the presence of related parties in the CoC and fraudulent initiation of CIRP placed by HIL on record, whereas the order approving the resolution plan should have been passed with complete satisfaction of the Adjudicating Authority as required under section 31, read with section 30(2) of the IBC. Was the financial loan claimed in default of payment in the application under section 7 of IBC filed by the financial creditor Nandakini Contractors Pvt. Ltd., a loan that could qualify as ‘financial debt’ under IBC and appropriate for initiation of CIRP against the corporate debtor? - Was t....... + More
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2023 (3) TMI 698
E-auction - submission which has much pressed by learned counsel for the Appellant is that the Appellant has made a higher offer of more than 10% from the offer of Respondent No.2 which was sufficient ground to accept the offer of the Appellant, maximisation of the value of the Corporate Debtor being the main objective of the I&B Code. HELD THAT:- There can be no dispute that maximisation of the value of the Corporate Debtor is one of the objectives of the I&B Code. However, the said objective has to be achieved within timelines. There has been already five failed e-auctions and the Respondent No.2 was an entity who had been interested in the Corporate Debtor from very beginning by submitting Resolution Plan. Respondent No.2 was objecting to the liquidation and even filed an appeal in this Tribunal, where this Tribunal observed th....... + More
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