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2023 (5) TMI 1245
Maintainability of application - barred in terms of Section 10(A) of the Insolvency and Bankruptcy Code, 2016 - date of default - HELD THAT:- Prima facie there is a merit in the argument of the Counsel for Appellant and therefore we issue a formal Notice to the Respondents for 27th June, 2023. The Appellants shall deposit the requisite process fee etc. for effecting service upon the Respondents. In the meantime, operation of the Impugned Order shall remain stayed.
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2023 (5) TMI 1200
Section 7 application admitted - the Adjudicating Authority passed an order on 06.01.2023 closing the right of the Appellant to file reply and the orders were reserved - Respondent submits that the order of the High Court was not even before the Adjudicating Authority when order was passed on 28.02.2023, therefore, there is no error in the order admitting application under Section 7 - HELD THAT:- From the sequence of events which has been brought on the record it does appear that reply was filed by the Corporate Debtor on 29.11.2022 which continued to be under scrutiny as per DMS, as noted in order dated 06.01.2023. Learned counsel for the Appellant submits that there are certain minor defects in the reply which Appellant was always ready to rectify. It is submitted that the High Court has passed the order on 22.02.2023 when the Appell....... + More
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2023 (5) TMI 1199
Maintainability of Section 9 application - it is argued that entire Operational Debt having been paid by the Corporate Debtor, there is no useful purpose in continuing the Section 9 proceeding any further - impleadment of Respondent as Corporate Debtor - Appellant submits that the Section 9 application was filed for Safeguard Duty reserving right to claim future interest or penalties or delay charges - HELD THAT:- Admittedly, the levy by the Custom Department is by Assessment Order dated 04.10.2022 by which finalization of duty on the bill of entry was made. In the Safeguard Duty, on the date when application was filed, interest could not have included as the amount of interest has been crystalized only subsequently when provisional assessment has been finalized by letter dated 04.10.2022 - The claim of interest levied by order dated 0....... + More
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2023 (5) TMI 1159
Disqualification of resolution applicant - wilful defaulter of bank - Rejection of Resolution Plan submitted by the Applicant - Appellant submits that on the day when Resolution Plan submitted by the Appellant came for consideration before the CoC, there was no declaration by Union Bank of India as willful defaulter - disqualification under Section 29A of I B Code - whether the Appellant was disqualified at the time when the Resolution Plan submitted by the Appellant came for consideration? - HELD THAT:- Appellant was not willful defaulter at the time he submitted the Resolution Plan and at the time his plan came for consideration, we cannot lose sight of the fact that by another order dated 20th January, 2022 in IN THE MATTER OF FANENDRA H. MUNOT LTD., WOOD PRESERVERS PRIVATE LIMITED VERSUS LB INDUSTRIES PRIVATE LIMITED [ 2022 (1) TMI....... + More
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2023 (5) TMI 1132
Initiation of CIRP - Existence of dispute - NCLT dismissed the application - Operational Creditors - whether in the facts of the present case, a genuine and real pre-existing dispute can be said to be in existence between the two parties? - HELD THAT:- There are no material on record by way of reply to the Corporate Debtor by the Operational Creditor which substantiates their having controverted the email dated 15.10.2014. The Adjudicating Authority, has, therefore not committed any mistake in holding that the said email clearly reflected that there was a specific dispute about the poor quality of goods supplied by the Operational Creditor. It is also noticed that the quality test analysis report of Coal dated 29.09.2014 was conducted by the testing agency on the instructions of the Operational Creditor as placed at Annexure-H in the r....... + More
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2023 (5) TMI 1084
Seeking permission for appointment of Board of Directors of the Corporate Debtor - HELD THAT:- The Application is not opposed by the SRA and it is stated that the appointment of Board of Directors to the Corporate Debtor is the step, which is essential for taking various regulatory actions as part of general corporate compliances under law - the prayer is allowed. Seeking for exclusion of time prayed for in the Application from 16.11.2022 till the Company Appeal (AT) (Insolvency) Nos. 129 130 of 2023 is decided - HELD THAT:- SRA is entitled for exclusion of period from 16.11.2022 till 03.03.2023, when this Tribunal in the present Appeal passed an order declining the interim relief as prayed by the MC Lenders. IA Nos.2028-2029 is thus allowed, excluding the period from 16.11.2022 till 03.03.2023. As undertaken by the SRA, the IA ....... + More
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2023 (5) TMI 1083
Territorial Jurisdiction for consideration of section 7 application - territorial jurisdiction of the NCLT, Mumbai to consider the application - can lender can take proceedings relating to a dispute in any other courts, apart from courts in England, with jurisdiction to the extent allowed by law and the lender bank is also allowed to take concurrent proceedings in any number of jurisdictions? - HELD THAT:- A plain reading of the provision relating to jurisdiction makes it abundantly clear that clause 35.1 in the Loan Facility Agreement dated 17.11.2011 is for the benefit of the lender Punjab National Bank (International) Limited, and wherein clause 35.1(c) stipulates that the lender shall not be prevented from taking proceedings relating to a dispute in any other Courts than the courts of England and also that the lender is empowered t....... + More
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2023 (5) TMI 1082
Implementation of the approved Resolution Plan - exclusion of three years and nine months (after resolution plan approved) - no interim order passed by the Hon ble Supreme Court staying the implementation of the Plan - HELD THAT:- Even before approval of the Resolution Plan by the CoC, the issue of ineligibility of Resolution Applicant was raised and against the order of the Adjudicating Authority, declaring the Resolution Applicant eligible, Appeals were filed by Punjab National Bank and RBL Bank, which Appeals were withdrawn on 23.03.2018 by an order of the Appellate Tribunal. Thereafter, Plan was approved on 18.04.2018. After approval of the Plan by the Adjudicating Authority, again a set of litigation was initiated by the Lenders, including the SBI. Four Appeals were filed challenging the Plan approval order. In the Appeal, which w....... + More
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2023 (5) TMI 983
Initiation of CIRP - time limitation - date of default - whether the original application filed by the Appellant under Section 7 of the Code before the Adjudicating Authority was within limitation time frame in accordance with the Limitation Act, 1963 or it was time barred as observed by the Adjudicating Authority based on which the Application was dismissed? HELD THAT:- The debt is defined under Section 3(11) of the Code and default has been defined under Section 3(12) of the Code, debt has been defined as a liability or obligation in respect of a claim which is due and default means non-payment of debt when whole or any part or instalment of the amount of debt has become due and payable and is not paid by the debtor/ Corporate Debtor. It is observed from Section 7(1) of the Code that the Financial Creditor may file an applicatio....... + More
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2023 (5) TMI 982
Initiation of CIRP - NCLT dismissed the application on the ground of period of limitation - relevant date - date of acknowledgement of debt by email - Operational Creditors - Corporate Debtor did not issue any notice of dispute - HELD THAT:- The Corporate Debtor in their reply dated 09.03.2020 to the Section 9 application filed by the Appellant had raised several objections, inter-alia, non-maintainability arising out of the bar created by the Indian Partnership Act, 1932; invalidity of demand notice being in Form III and for not containing date of default; non-receipt of demand notice and non-service with the Information Utility; defective issue of demand notice; etc. - on the issue of limitation, it held that the Section 9 application has not been filed within three years from date of default and in the absence of sufficient material....... + More
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2023 (5) TMI 981
Liquidation of Corporate Debtor - Vacation of premises - direction to Respondent to co-operate with the Liquidator to show the said premise to the prospective investors - HELD THAT:- Reliance placed on judgment passed by three Members Bench of this Tribunal in the case of M/S. JHANVI RAJPAL AUTOMOTIVE PVT. LTD. VERSUS VERSUS R.P. OF RAJPAL ABHIKARAN PVT. LTD., AGARWAL REAL CITY PVT. LTD. [ 2023 (1) TMI 301 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI ]. In the above case, lease Agreement was not renewed and also no dispute that assets in question is owned by the Corporate Debtor and this Appellate Tribunal laid down that Adjudicating Authority has rightly allowed the Application filed by the RP directing the Appellant to vacate from the premises so that Resolution Plan which has been approved can be im....... + More
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2023 (5) TMI 980
Initiation of CIRP - NCLT admitted the application filed u/s 7 - status / locus of Debenture Trustee - Corporate Debtor failed to make repayment of its dues - assignment of debt to assignment holder - admission of debt and default - HELD THAT:- The present is a case where in the reply filed before the Adjudicating Authority, the Corporate Debtor did not dispute the debt and default. In the reply filed by the Corporate Debtor, it was mentioned that due to COVID-19 there was standstill in the business activities of the Corporate Debtor. The debt and default was an admitted position in the reply filed by the Corporate Debtor. The submission which is much pressed by learned counsel for the Appellant is that the Respondent No.1 had no locus to issue Acceleration Notice dated 26.07.2022. It is submitted that it was only Debenture Trustee who....... + More
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2023 (5) TMI 979
Initiation of CIRP - NCLT rejected the application - Scope of the agreement between parties for use of office space - Unilateral Termination of agreement before the specified date - Corporate Debtor failed to make repayment of its dues - Operational Creditors - non-registered, non-stamped document - existence of debt and dispute or not - HELD THAT:- Clause 1.4 of agreement deals with cancellation and clause provides that client that is the Corporate Debtor can terminate agreement with 30 days notice after the lock in period whereas there are restriction on the services provided in the agreement. The present is a case where in pursuance of the agreement, Corporate Debtor took the possession of the premises. When we look into the agreement, there is a number of services, site plan containing the various facilities which has to be provide....... + More
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2023 (5) TMI 978
CIRP - Application filed for intervention of home buyers dismissed - dismissal on the ground that Appellant had no locus to maintain the said application at this stage when the proceedings are pending and no order of admission has been passed - CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors. Whether an application like the one in hand could have been maintained at the instance of the Appellant before the admission of the application under Section 7 of the Code? - HELD THAT:- There is no dispute that the Applicants/Appellants are the homebuyers who have booked their units in the said project being developed by the Corporate Debtor. However, as submitted by counsel for Respondent, the units which has been booked by the Appellants are in the Tower Joy and Spark which is far beyond completion. It....... + More
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2023 (5) TMI 934
Initiation of CIRP - Application u/s 7 dismissed by the NCLT - Financial Debt or not - existence of debt due and payable or not - loan was lent for time value of money or not (existence of interest component on loan or not - existence of tripartite agreement between the Appellant, Corporate Debtor and SBI - time limitation. Whether the payment of Rs.10.46 crore by the Appellant to the SBI on behalf of the Corporate Debtor during 2014-2016 in terms of the two MoUs and OTS qualifies to be a financial debt within the meaning and scope of Section 5(8) of the IBC? - HELD THAT:- In Pioneer Urban [ 2019 (8) TMI 532 - SUPREME COURT ] it has been held that any debt to be treated as financial debt, there must happen disbursal of money and the disbursal must be against consideration for time value of money. The concept of time value of mon....... + More
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2023 (5) TMI 928
Maintainability of intervention application - It is submitted that the Application is still pending for consideration and has not yet been admitted - rejection of impugned Application on the ground that at the pre-admission stage there is no occasion to permit the Applicant to intervene in the matter - HELD THAT:- In the present case the Application under Section 7 has not yet been admitted. Adjudicating Authority did not commit any error in rejecting the Intervention Application at pre-admission stage, filed by the Appellant - there are no error in the Impugned Order rejecting the application for intervention. However, it shall be open to the Appellant to file appropriate fresh application in the event application is admitted under Section 7 IBC. Appeal dismissed.
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2023 (5) TMI 900
Initiation of CIRP - Admission of application u/s 10 - issuance of notice to the creditors to give a hearing or opportunity of hearing to the creditors before admission of Section 10 Application - opportunity to the creditor to file Section 65 Application (if section 10 application filed with fraudulent intent) - termination of Lease Agreement in favour of the Corporate Applicant prior to admission of Section 10 Application - effect of moratorium to assets, which were earlier leased by the Lessor to the Corporate Applicant - entitlement to claim possession of the aircrafts and export the aircrafts as per the Lease Agreement on termination of lease agreement. Whether in a Section 10 Application filed by a Corporate Applicant, it is necessary to issue notice to the creditors to give a hearing or opportunity of hearing to the creditor....... + More
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2023 (5) TMI 897
Condonation of delay in filing appeal - sufficient reasons for delay provided or not - Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues (or not) - Operational Creditors - application filed u/s 9 of IBC dismissed on the ground that the Corporate Debtor has already paid the Principal Amount and the Petition under Section 9 is not maintainable in respect of interest. Whether there is a sufficient cause assigned by the Applicant/Appellant for the purpose of Condonation of Delay or not? - HELD THAT:- Admittedly, the Impugned Order was received by the Appellant within two/three days of its passing. The Appellant was having about 25 days if not more for the purpose of engaging the Counsel and filing of Appeal but he has made a lame excuse that he belongs to Orrisa and the Counsel wa....... + More
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2023 (5) TMI 817
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Corporate Guarantor - assignment of debt to an Asset Reconstruction Company - CIRP against the Principal Borrower, already commenced - initiation of two applications under Section 7 for same set of claim amount and default simultaneously - Validity of unregistered Assignment Agreement. Whether the Assignment Agreement being unregistered document could not have been relied by the Adjudicating Authority for admitting Section 7 application? - HELD THAT:- The Assignment Agreement dated 18.01.2021 was relied by the Financial Creditor and has been referred to by the Adjudicating Authority in Para 5 of the order. The Order dated 11.05.2022 initiating Section 7 application has not been reversed or modified and still in force. Seco....... + More
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2023 (5) TMI 770
CIRP - Seeking revival of company - withdrawal of Company Petition under Section 12-A of the Code - default in making payment of any of the tranches of Financial Creditors - settlement of dispute between the parties - HELD THAT:- In the present case, consent terms were brought on record since they were part of the Application under Section 12A of the Code which was noticed in the Order of the Adjudicating Authority itself. When consent term itself contains clause for revival, non-giving liberty specifically for revival by the Adjudicating Authority is inconsequential. The Adjudicating Authority has also referred to the Judgment of this Tribunal in Himadri Foods Ltd. v. Credit Suisse Funds AG, [ 2021 (1) TMI 1303 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI ], which was distinguished by the Adjudicating Authority. The Adjud....... + More
