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Insolvency and Bankruptcy - Tribunal - Case Laws
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- 2021 (1) TMI 1059 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Maintainability of application - initiation of CIRP - Scope of the term 'Deposit' - Financial Debt under section 5(8)(a) and Section 5(8)(f) of the ‘I&B’ Code - stand of the Appellant is that his claim is that of a ‘Deposit’ and not of a ‘Financial Debt’ was never brought out by either the Respondent or the Adjudicating Authority as such, the Appellant never got an opportunity to respond to the said issue and was shocked by the impugned order - HELD THAT:- It must be borne in mind that a ‘Financial Creditor’ is a person to whom the financial debt is owed. A ‘Financial Creditor’ is a person who has a right to financial debt. A ‘Financial Creditor’ can be either a secured creditor or an unsecured creditor - A ‘Corporate Debtor’ is a person who ow....... + More
- 2021 (1) TMI 1058 - NATIONAL COMPANY LAW TRIBUNAL GUWAHATI BENCH
Approval of Resolution Plan - Seeking extinguishment of demand - Considering the claims not lodged before the approval of the Resolution Plan - HELD THAT:- After the Judgement of the Hon’ble Supreme Court on COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LIMITED THROUGH AUTHORISED SIGNATORY VERSUS SATISH KUMAR GUPTA & OTHERS [2019 (11) TMI 731 - SUPREME COURT] on the issue we are of the considered view that the claims filed by the Respondents after the Resolution Plan is approved, is not tenable. Notice of CIRP / Moratorium of the CD was published in the News Paper as per the provisions of the IBC asking the stakeholders to lodge their claims, if any. Hence Prayer made by the Resolution Applicant/CD in this IA No.19 of 2020 [in CPIB No.20/GB/2017] is accepted to the following extent: (1) Claims of the Respondent not lodged before t....... + More
- 2021 (1) TMI 1031 - NATIONAL COMPANY LAW TRIBUNAL KOCHI BENCH
Direction to Respondent to permit the Advocate, Chartered Accountant, Company Secretary of the Corporate Debtor/ Applicant to attend the meetings of Committee of Creditors - Direction to Respondent to provide the copies of all documents in connection with the CIRP process to the mentioned professionals - HELD THAT:- From Regulation 24 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, it is clear that the Resolution Professional has the power and responsibility to monitor and manage the operations and assets of the enterprise. The professional will manage the resolution process of negotiation to ensure balance of power between the creditors and debtor, in order to protect the rights of all creditors. The professional has to ensure the reduction of asymmetry of informati....... + More
- 2021 (1) TMI 981 - NATIONAL COMPANY LAW TRIBUNAL AHMEDABAD BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - outstanding sum has been claimed at ₹ 11,30,146/- and date of default has been claimed as Financial Year 2018 - HELD THAT:- In case of proceedings under Section 9 of IBC, 2016 or section 8 of IBC 2016 of significant nature. It has been observed by higher judicial forums that requirement of service of notice under Section 8(1) of IBC, 2016 is crucial so that any entity is not put into CIRP in a light manner. Rule 5 (Application to Adjudicating Authority) Rules, 2016 provides that Operational Creditor "shall" deliver to the Corporate Debtor. Demand notice in form-3 or copy of invoice attached with the notice in Form-4. Form No.3 and Form No.4 have been prescribed which provide f....... + More
- 2021 (1) TMI 980 - NATIONAL COMPANY LAW TRIBUNAL AHMEDABAD BENCH
Seeking direction to the Respondent, i.e. Bank of India, to release an amount of ₹ 100 Lacs held in the "No Lien Account", for the purpose of Insolvency Resolution Process - Section 60(5) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- It is noted that the Corporate Debtor, to show their commitment and bonafide towards resolution plan (i.e. one time settlement proposal) has furnished a Cheque for ₹ 1 crore to the respondent/ bank on 12.07.2017 along with a letter with a request to keep the proceeds in "No Lien Account" and instructed that the said amount may be adjusted / utilized upon approval of resolution plan (i.e. one time settlement), however, in any case, it should not be adjusted towards interest/ other charges/ principal till then. The company is committed to bring the balance amount to t....... + More
- 2021 (1) TMI 979 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of debt or not - existence of debt and default or not - Time Limitation - HELD THAT:- The date of default is 06.03.2019 and the present application is filed on 16.03.2020. Hence the application is not time barred and filed within the period of limitation - The registered office of corporate debtor is situated in Delhi and therefore this Tribunal has jurisdiction to entertain and try this application - present application is filed on the Performa prescribed under Rule 6 of the Insolvency and Bankruptcy Code, 2016 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 r/w Section 9 of the code and is complete. It is clear that the default has occurred and the debt is due and payable. Further, the present application ....... + More
- 2021 (1) TMI 978 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI
Seeking relief asking for closure of the liquidation process without dissolving the Corporate Debtor as long as Section 54 of the Code passed by the Parliament is in force - Can such a relief be passed by this Authority by looking at the liquidation Regulations issued with the power conferred upon IBBI under section 240 (Regulation making power) and Section 196 (Powers and Functions of IBBI) of the Code? - HELD THAT:- If the Code is carefully read, it could be ascertained that wherever the Code felt that IBBI assistance is required, it has been specifically stated "as specified by the Board or in such manner as may be specified or prescribed" we must at the cost of repetition reiterate, this clause is indicative of the fact that beyond the procedure inbuilt in the Code, if additional mechanism or paraphernalia is required to acc....... + More
- 2021 (1) TMI 977 - NATIONAL COMPANY LAW TRIBUNAL , HYDERABAD BENCH
Seeking stay on the process of finalization of the Approval of the Resolution Plan - seeking direction to Mr. B.C. Ganesh (RIO), who is common witness in all agreements should submit all Bank Statements and Income Tax Returns for last five Financial Years and disclose true identity - HELD THAT:- Since the Applicant has not brought on record any fact or evidence to show that the successful Resolution Applicant falls within any of the categories of the ineligibile persons under Section 29A of the Code, the prayer made for declaring the successful Resolution Applicant as ineligible cannot be acceded to and is therefore negated.The Applicant's prayer for passing an order to consider its Resolution Plan with the consideration for ₹ 27.00 Crores when it was the H1, is against the one of the prembled objectives of the IBC 2016, namely ....... + More
- 2021 (1) TMI 976 - NATIONAL COMPANY LAW TRIBUNAL, BENGALURU BENCH
Approval of Resolution Plan - sections 30(6) and 31 of the I&B Code, 2016 r/w Regulation 39(4) of CIRP Regulations, 2016 - HELD THAT:- It appears that the Resolution Plan dated 26th February, 2020 as duly approved by the Committee of Creditors on 28th February, 2020 for Badami Sugars Limited, submitted by M/s. Sri Sai Priya Sugars Limited, satisfies all the requisite conditions for its approval under section 31(1) of the Code. Details of the fund infusion, and the sources from which the Resolution Applicant shall arrange the same have been provided in the Resolution Plan. The same provides for the creditors in the distribution table filed with the Plan, and provides adequate details of the infusion of funds required as working capital as well as for payment of the debts. Details of projected profits and cash flows have also been provi....... + More
- 2021 (1) TMI 937 - NATIONAL COMPANY LAW TRIBUNAL MUMBAI BENCH
Fraudulent or wrongful trading with an intent to defraud the creditors of the Corporate Debtor - Section 66 of IBC Code - conduct and liability of Respondent No.1 to repay the assets and benefits of the Corporate Debtor which has wrongfully been received by Respondent - HELD THAT:- Reference is made to the decision of Hon'ble NCLAT in the case of Vijay Pal Garg & Ors vs Pooja Bahry (Liquidator of Gee Ispat Private Limited) [2020 (4) TMI 420 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] wherein the Hon'ble NCLAT was dealing with identical facts of an Application filed by R Punder section 66 and it was found that the records and accounts of the Corporate Debtor have been falsified and eventually proceeded to trigger an investigation under section 213 of the Companies Act 2013. Thus in view of the judgement, it becomes cl....... + More
- 2021 (1) TMI 936 - NATIONAL COMPANY LAW TRIBUNAL BENGALURU BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Respondent has failed to comply with the order passed by the Hon'ble K-RERA and are in default of financial debt - HELD THAT:- It is a settled position of law that the provisions of Code cannot be invoked for recovery of outstanding amount but it can be invoked to initiate CIRP for justified reasons as per the Code. The Hon'ble Supreme Court in the case of Mobilox Innovations Private Limited Vs. Kirusa Software Private Limited [2017 (9) TMI 1270 - SUPREME COURT], has inter alia, held that I&B Code, 2016 is not intended to be substitute to a recovery forum. In the instant case, it is seen that the Petitioners have already obtained an order from the relevant forum under the RERA Act and the same can be executed before an....... + More
- 2021 (1) TMI 935 - NATIONAL COMPANY LAW TRIBUNAL, KOCHI BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - time limitation - debt, limited by time or not - Financial Creditors or not - debt due is a Financial Debt or not - HELD THAT:- In view of the law laid down by the Hon'ble Supreme Court in ITC LIMITED VERSUS BLUE COAST HOTELS LTD. & ORS. [2018 (3) TMI 932 - SUPREME COURT], we hold that the WhatsApp communication dated 23-5-2019 annexed by the Financial Creditor along with the rejoinder constitutes an acknowledgement of liability, where the debtor who sent such a message has no intention of paying so long as he can avoid payment, and nothing before his mind but a desire, somehow or other, to gain time and avert pressure and falls within the meaning of Section 18 of the Limitation Act, ....... + More
- 2021 (1) TMI 934 - NATIONAL COMPANY LAW TRIBUNAL, KOCHI BENCH
Seeking directions to dismiss the proceedings in the instant matter since no quorum has been reached in accordance with Section 408 and 410 of Companies Act, 2013 - HELD THAT:- A bare reading of the provisions of Section 419(3) of the Companies Act as well as the order of the NCLT, Principal Bench, which has been issued with the approval of Hon'ble President, makes it clear that even though the Bench of NCLT consists of two members, it shall be competent for the Members of the Tribunal authorised in this behalf to function as a Bench, by a Single Judicial Member and exercise the powers of the Tribunal in respect of such class of cases or such matters pertaining to such class of cases, as the President may by general or special order specify. In regard to constitution of special Bench for NCLT, Kochi the Hon'ble President has issue....... + More
- 2021 (1) TMI 933 - NATIONAL COMPANY LAW TRIBUNAL , BENGALURU BENCH
Permission for withdrawal of petition - Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- Since the Company Petition is not yet admitted, and the Petitioner has itself filed the above joint memo praying for withdrawal of the the instant Company Petition, we are inclined to permit the Petitioner to withdraw the instant Company Petition. Petition is hereby disposed of as withdrawn by granting liberty to the Petitioner to file a fresh petition in case of non-adherence to the agreed terms of payment by the Corporate Debtor.
- 2021 (1) TMI 932 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditor or not - pre-existing dispute or not - HELD THAT:- After the reply of Corporate Debtor, Operational Creditor has filed its rejoinder, in its rejoinder the Operational Creditor states that, on 27-10-2018, the Operational Creditor issued a Demand Notice against the Corporate Debtor which the Corporate Debtor responded to vide its response letter dated 6-11-2018. The Corporate Debtor issued a show cause notice dated 29-10-2018 after almost 3 months of termination of the Consultancy Agreement of the Operational Creditor w.e.f 4-8-2018 and also replied to the Demand Notice on 6-11-2018 creating a false/moonshine dispute to avoid the payment of the operational debt due to the Operational Creditors. The Operational C....... + More
- 2021 (1) TMI 931 - NATIONAL COMPANY LAW TRIBUNAL, HYDERABAD BENCH
Seeking to direct the Resolution Professional to accept the claim of the Applicant under the category of Financial Creditor and reconstitute the Committee of Creditors by including the name of Applicant - nature of the debt - Financial Debt or Financial debt - HELD THAT:- In the instant case, the amount in claim is arising out of the judgment of XIII Additional District and Sessions Judge cum Commercial Court, Ranga Reddy District, Hyderabad and the said judgment arose out of the issue regarding payment of entire amount as advance by the Applicant towards the purchase orders placed with the Corporate Debtor and further on account of non-supply of goods. The transaction entered into between the Applicant and Respondent squarely falls within clause 2(c)(xviii) supra and therefore the Commercial Court had jurisdiction over disputes arising o....... + More
- 2021 (1) TMI 901 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- The Adjudicating Authority who was required to pass the order of admission or rejection of the application being satisfied about the completion of the application and proof of debt and default as mandated under Section 9(5) has failed to provide opportunity of rectifying the defect as noticed and allowing the applicant to bring it in conformity with the requirements of law. Dismissal of application as being non-maintainable for such technical defect is not warranted. The impugned order is set aside and matter remanded back to the Adjudicating Authority to allow the Appellant/Applicant opportunity of rectifying the defect, if any, in the application and thereafter pass order of admission or rejection in regard to initiation of Corporate Insolvency Resolution Process on merit. Appeal disposed off.
- 2021 (1) TMI 900 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - pre-existing dispute or not - time limitation - Whether there is an operational debt exceeding ₹ 1 lac as defined under Section 4 of the I&B Code? - HELD THAT:- In the application under Section 9 of the I&B Code, it is mentioned that appellant has supplied ready-mix concrete material to respondent for their various construction sites from 30/09/2012 to 20/10/2014 for which various invoices were issued from time to time as against the total outstanding payment of ₹ 02,29,94,288/-. The respondent (Corporate Debtor) has paid a sum of ₹ 02,09,30,948/- and balance of ₹ 20,63,340/- is outstanding as on 11/11/2015 - The respondent denied this fact and according to him as per the ledger, the outstanding amo....... + More
- 2021 (1) TMI 899 - NATIONAL COMPANY LAW TRIBUNAL KOCHI BENCH
Seeking extension of time period of Corporate Insolvency Resolution Process - seeking Audit and close the Accounts of the Corporate Debtor for the Financial Year 2015-2016 to 2019-2020 with the available records - avoiding examination of transactions covered under Sections 43, 45, 50 and 66 of I&B Code, 2016 - approval of eligibility of Resolution Applicant [Celestial Garden Owners Association] and participation of Resolution Applicant in voting of Resolution Plan - HELD THAT:- Considering Section 30(4) of the I&B Code, instead of going for liquidation of the Corporate Debtor, accepting the Resolution submitted by the Resolution Applicant is more viable. Section 31 of the IBC only bestowed the NCLT with the power to reject a Resolution Plan when the conditions in Section 30(2) have not been adequately met. Hence this Tribunal is o....... + More
- 2021 (1) TMI 897 - NATIONAL COMPANY LAW TRIBUNAL MUMBAI BENCH
Seeking declaration that the letter issued by Collector of Usmanabad and the withdrawal of ₹ 76,75,000/- done by Respondent as illegal / non-est in law - seeking direction to Respondent (GST Department, Nashik) to forthwith refund the amount of ₹ 76,75000/- along with an interest @18% p.a. to the Bank Account of the Corporate Debtor - HELD THAT:- This bench is of the view that the liability towards Sales Tax due is not towards the Corporate Debtor but it is the due payable by M/s Sheelaatul Sugar Tech Private Limited. Even assuming that the Corporate Debtor is liable to pay that amount, the collection of due by the Respondent during CIRP is prohibited by moratorium under Section 14 of the Code. The Judgments referred by the Respondents is not relating to the issue involved in this Application and will not come to the aid of th....... + More
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