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IBC - Case Laws
Showing 1 to 20 of 67 Records
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2023 (2) TMI 1387
Application u/s 9 of Insolvency & Bankruptcy Code, 2016 (I&B Code) seeking initiation of Corporate Insolvency Resolution Process (CIRP) against Nyka Steels Private Limited, Corporate Debtor - HELD THAT:- This Bench is of considered view that the Operational Creditor has provided the steel material to the Corporate Debtor for which the Corporate Debtor has failed to pay the outstanding dues of the Operational Creditor - It is also observed that the Corporate Debtor has appeared on few occasions in the matter, but has not contested the contents of the Application.
After perusal of the material on record, this Bench is of considered view that the there is no reason to deny the Petition under section 9 filed by the Operational Creditor to initiate the CIRP against the Corporate Debtor.
On perusal of the documents submitted by the Applicant, it is clear that financial debt amounting to more than Rs.1,00,00,000/- (Rupees One Crore Only) is due and payable by the Corporate Debtor to the Applicant. There is default by the Corporate Debtor in payment of debt amount. Therefore, there are no objection on record against the application filed for initiation of CIRP against the corporate debtor. Hence, the Application filed by the Operational Creditor is liable to be admitted.
The application is complete and has been filed under the proper form and default of the Corporate Debtor has been established.
Conclusion - The application under Section 9 of the IBC is admitted, as the Operational Creditor has established the default by the Corporate Debtor.
Application admitted.
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2023 (2) TMI 1377
Seeking approval of the Resolution Plan submitted by the Resolution Applicant - Section 30(6) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The Resolution Plan submitted by Six Sigma Investment Funds is hereby approved. It shall become effective from this date and shall form part of this order. It shall be binding on the Corporate Debtor, its employees, members, creditors, including the Central Government, any State Government or any local authority to whom a debt in respect of the payment of dues arising under any law for the time being in force is due, guarantors and other stakeholders involved in the Resolution Plan - The moratorium under Section 14 of the Code shall cease to have effect from this date.
The approval of the Resolution Plan shall not be construed as waiver of any statutory obligations of the Corporate Debtor and shall be dealt by the appropriate Authorities in accordance with law. Any waiver sought in the Resolution Plan, shall be subject to approval by the Authorities concerned.
In terms of the judgement of Hon’ble Supreme Court in the matter of Ghanshyam Mishra and Sons Private Limited v. Edelweiss Asset Reconstruction Company Limited [2021 (4) TMI 613 - SUPREME COURT], “on the date of approval of the Resolution Plan by the Adjudicating Authority, all such claims, which are not a part of resolution plan, shall stand extinguished and no person will be entitled to initiate or continue any proceedings in, respect to a claim, which is not part of the resolution plan.
Conclusion - The Resolution Plan submitted by SSIF was approved, and the tribunal issued directions for its implementation. The plan became binding on all stakeholders, including the Corporate Debtor, its employees, and government authorities.
Application allowed.
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2023 (2) TMI 1350
Dues payable after/from the date of admission of application and onwards - Regulation 31 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2018 - HELD THAT:- Issue notice, returnable in the month of September 2023.
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2023 (2) TMI 1320
Seeking for stay of all the operations for attachment against the Applicant - Impugned Order fails to take into account that the Appellants have made the recovery of the outstanding demand for the Assessment Year 2013-14 and Assessment Year 2014-15 vide Form B on 14.11.2017 which is prior in time to the resolution plan being approved on 20.09.2018 - HELD THAT:- On going through the judgment passed by the Hon'ble Supreme Court in the case of STATE TAX OFFICER (1) VERSUS RAINBOW PAPERS LIMITED [2022 (9) TMI 317 - SUPREME COURT] and also taking consideration the fact that the Appellants placed demand of Income Tax for the Assessment Year 2013-14 for Rs. 6,69,84,657 & Assessment Year 2014-15 for Rs. 9,50,41,296 totaling to Rs. 16,20,25,953/- before the Resolution Professional which were outstanding before the date of admitting the application and the claim was filed in the form of 'Form - B' dated 14.11.2017 by Income Tax Department.
The Appellants filed an application for review of the order passed by the NCLT dated 20.09.2018 with necessary directions to the Resolution Professional for submission of the revised resolution plan incorporating the entire amount alleged to be due to the Appellants. Subsequently, the NCLT vide its order dated 22.10.2019 stated that since the Resolution Professional intimated the Appellants that the demand after finalization of appeal by CIT(A) would be payable by the new promoter, such written intimation of the Resolution Professional is to be read with the new resolution plan and the demand of the Appellants is duly considered and the Appellants have a right to lay its claim before the new promoter of the Respondent Company.
It is observed that the Respondent were examined and rebuttal letter was sent to the Respondent stating that the stay granted by the Appellate Authority had since expired on 13.12.2019 and therefore, the Respondent was requested to pay the outstanding demand for the Assessment Year 2014-15 immediately and intimated within 7 days. Since, there was no compliance of the notice sent by the Appellants a bank attachment in the following banks were carried out; (i) Allahabad Bank, Dibrugarh Branch and (ii) Allahabad Bank, Industrial Finance Bank, Kolkata and further an email dated 28.01.2020 was received from the Allahabad Bank Industrial Finance Bank, Kolkata that accounts have been marked debit freeze.
These facts have not been considered by the Adjudicating Authority while passing the impugned order - the dues of the Appellants are 'Government dues' and they are Secured Creditors - the impugned order passed by the Adjudicating Authority (National Company Law Tribunal, Guwahati Bench, Guwahati) is hereby set aside and the matter is remitted back to the Adjudicating Authority (National Company Law Tribunal, Guwahati Bench, Guwahati) with a request to hear the parties (Appellants and Respondent herein) and pass fresh orders as expeditiously as possible.
Appeal disposed off.
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2023 (2) TMI 1319
Extinguishment of demand - Impugned Order fails to take into account that the Resolution Professional had intimated that the dues of the Income Tax department as and when they became payable after the appeal process would be payable by the successful resolution applicant - modification of Resolution Plan duly approved and implemented - HELD THAT:- Taking consideration the fact that the Appellants placed demand of Income Tax for the Assessment Year 2013-14 for Rs. 6,69,84,657 & Assessment Year 2014-15 for Rs. 9,50,41,296 totaling to Rs. 16,20,25,953/- before the Resolution Professional which were outstanding before the date of admitting the application and the claim was filed in the form of ‘Form - B’ dated 14.11.2017 by Income Tax Department. It is also observed that on 25.10.2018, the Appellants received a draft of Rs. 41,22,407 from the Resolution Professional as a tranche payment. Further, the Appellants received another draft of Rs. 78,90,284 vide letter dated 07.01.2019 as a full and final payment totalling to Rs. 1,20,23,691 which is not even 15% of the outstanding demand. The Respondent was asked to pay the outstanding demand vide letter no. 674 dated 12.03.2019. However, the Respondent wrote to the Appellants for extinguishing all claims against them relating to the period prior to the date of order of the NCLT since as per the approved resolution plan at clause 12.1 no other amount was to be paid to the Operational Creditors. The Appellants filed an application for review of the order passed by the NCLT dated 20.09.2018 with necessary directions to the Resolution Professional for submission of the revised resolution plan incorporating the entire amount alleged to be due to the Appellants.
The stay granted by the Appellate Authority had since expired on 13.12.2019 and therefore, the Respondent was requested to pay the outstanding demand for the Assessment Year 2014-15 immediately and intimated within 7 days. Since, there was no compliance of the notice sent by the Appellants a bank attachment in the following banks were carried out; (i) Allahabad Bank, Dibrugarh Branch and (ii) Allahabad Bank, Industrial Finance Bank, Kolkata and further an email dated 28.01.2020 was received from the Allahabad Bank Industrial Finance Bank, Kolkata that accounts have been marked debit freeze.
These facts have not been considered by the Adjudicating Authority while passing the impugned order. Admittedly, the judgment passed by the Hon’ble Supreme Court in the case of STATE TAX OFFICER (1) VERSUS RAINBOW PAPERS LIMITED [2022 (9) TMI 317 - SUPREME COURT], the dues of the Appellants are ‘Government dues’ and they are Secured Creditors. Thus, the impugned order passed by the Adjudicating Authority (National Company Law Tribunal, Guwahati Bench, Guwahati) is hereby set aside and the matter is remitted back to the Adjudicating Authority (National Company Law Tribunal, Guwahati Bench, Guwahati) with a request to hear the parties (Appellants and Respondent herein).
Appeal disposed off.
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2023 (2) TMI 1301
Fraudulent trading - Preferential transactions - Undervalued transactions - Extortionate transactions - it was held by NCLAT that 'It is very much clear that it is the intention to defraud creditors at that stage Section 66 is applicable. This section empowers the Adjudicating Authority to pass an order for recovery from such fraudulent parties as contribution to the assets of the CD' - HELD THAT:- There are no merit in this appeal. Admission is refused and the civil appeal is, accordingly, dismissed.
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2023 (2) TMI 1288
Maintainability of petition - Initiation of CIRP - Operational Creditor or not - proceedings before the NCLT are in rem or not - HELD THAT:- In order to restore the appeal before the NCLAT, this Court must be satisfied that the appellant is in a position to meet the threshold requirement which is imposed by the terms of Section 7 for the initiation of the CIRP. Absent that demonstration, the appeal is not allowed at the behest of the appellant and restore the proceedings, the effect of which would be to revive the CIRP against the company. In the event that the appellant seeks to invoke the jurisdiction of the NCLT in terms of the provisions of Section 7 of the IBC, the appellant would be at liberty to do so in which case, the observations in the present order will not stand in its way as any adjudication on the merits or maintainability of such an application. The order of the NCLAT dated 13 December 2022 disposing of the appeal filed by the appellant, namely, BPTP SPACIO PARK SERENE FLAT ALLOTTES WELFARE ASSOCIATION (BAWA) VERSUS M/S. BPTP LTD. & ANR. [2022 (12) TMI 1504 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH, NEW DELHI] shall not come in the way of the appellant in taking recourse to its remedies before the NCLT in fresh proceedings, if so advised.
In the alternative, since the appellant has a consent decree of the NCDRC, it would be at liberty to execute it in accordance with law. The execution proceedings before the NCDRC are expedited and may be taken up for early disposal.
Application disposed off.
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2023 (2) TMI 1266
Jurisdiction - multiplicity of proceedings or not - insolvency proceeding is pending in different court room of a particular Bench of the NCLT - proceedings under Section 95 have been entertained by another court of the same Bench - whether order passed under Section 95 application by the court different from court where insolvency proceeding is pending, is without jurisdiction? - Whether Section 60(2) of the IBC contemplate application for personal guarantor before NCLT or its Benches or it contemplates filing of Section 95 application in the same court room of the NCLT? - HELD THAT:- NCLT Mumbai Bench transacts its business by two members out of which one is Judicial Member and another is Technical Member sitting in different Courts. The powers of the Tribunal as per sub-section (3) of Section 419 shall be exercisable by Benches consisting of two Members out of whom one shall be a Judicial Member and the other shall be a Technical Member - Sub-section (1) of Section 419 which empowers Central Government to constitute Benches of the Tribunal and sub-section (3) provides the powers of the Tribunal shall be exercisable by Benches consisting of two Members.
The ‘Adjudicating Authority’ is a NCLT which is constituted under Section 408 of the Companies Act, 2013 and the ‘Bench’ means a Bench of the Adjudicating Authority i.e. a Bench of NCLT. Under Section 419, Central Government has constituted Benches of the NCLT - From the definition of ‘bench’ as contained in the IBC as well as NCLT Rules, 2016 read with Sections 408 and 409, it is clear that the word ‘bench’ refers to a bench of NCLT as constituted under Section 419. The expression ‘bench’ as contained in IBC and NCLT Rules 2016 as well as under Section 419 of the Companies Act, 2013 only refers to Bench of NCLT. The legislature never contemplated NCLT for courts of particular Bench of NCLT sitting in composition of two members in a court, court of NCLT hearing a petition or application was not under contemplation in sub-section (2) of Section 60. Sub-section (2) of Section 60 refers to NCLT which includes also a bench of NCLT, hence, the bench shall mean a bench constituted under Section 419.
Section 419(3) provides that the powers of the Tribunal shall be exercisable by Benches consisting of two Members out of whom one shall be a Judicial Member and the other shall be a Technical Member. The above provision was for the purposes of laying down how the power of NCLT shall be exercisable. The expression ‘benches’ as occurring in Section 419(3) has to be read along with the expression ‘benches’ as used in Section 419(1) of the Companies Act, 2013. Principal bench as well as the benches of the tribunal constituted under Section 419(1) has to exercise jurisdiction by two members; one judicial member and one technical member.
Section 60(2) only provided for filing of the application against personal guarantor before the same NCLT where insolvency resolution process against the corporate debtor is pending. Legislature neither contemplated nor intended hearing of both the applications by one particular court room. A bench of NCLT is a unit and filing of application and petitions are before the bench of the NCLT and not before a particular court - Where the petition filed for insolvency resolution under Sections 7, 9 and 10 as well as application filed under Section 95 against the personal guarantor are to be heard together or heard separately is a matter of general or special order issued by the President for hearing the application filed in a particular bench and no fetter can be read under sub-section (2) of Section 60 on exercise of general and special order passed by the President for hearing of the applications.
It is to be considered as to whether the order passed under Section 95 directing for appointment of a Resolution Professional for submitting a report is without jurisdiction only on the ground that it is passed by different court than one where insolvency application is pending. Whether the court where Section 95 application is pending was required to necessarily sent the proceedings before Court where insolvency proceedings is pending can be answered holding that since the court did not lack jurisdiction it was not necessary for the court to refuse to proceed to hear.
The interpretation which is sought to be advanced by the Appellant in event it is accepted shall lead to uncertainty and conflict regarding jurisdiction of a NCLT to entertain an application under Section 95. All applications and petitions filed in NCLT including its benches have to be heard and decided as per the general and special order of the President. Applications are listed in different court of one bench of NCLT as per the general and special order of the President. When a matter is listed before a particular court of bench of NCLT, the Court where the matter is listed has necessarily jurisdiction to entertain it. The submission that court has no jurisdiction since application of insolvency is pending in different court of same bench if accepted the same will be contrary to general and special order of the President under which Section 95 application is listed in different court.
In the facts of the present case, impugned order dated 18.12.2023 passed by Court III of the NCLT, Mumbai Bench was well within its jurisdiction. Similarly, the impugned order passed by NCLT, Court 1 dated 17.08.2023 was well within the jurisdiction of the court which passed the order. No infirmity can be found with the impugned order on the submission which has been advanced by the Appellant in the present appeal.
When an insolvency proceeding is pending in different court room of a particular Bench of the NCLT, the proceedings under Section 95 can be entertained by another court of the same Bench as per general or special order of the President and order passed under Section 95 application by the court different from court where insolvency proceeding is pending, shall not be without jurisdiction - Section 60(2) of the IBC contemplate filing of application for personal guarantor before NCLT or its Benches and not to a particular courtroom of NCLT or its benches.
Appeal dismissed.
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2023 (2) TMI 1258
Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - it was held by NCLAT that The reasons given by the Adjudicating Authority while passing the impugned order is agreed upon and as the CoC has recommended for liquidation of the Company for which I.A. is pending before the Adjudicating Authority, hence this Appeal has become infructuous.
HELD THAT:- There are no error in the order of the National Company Law Appellate Tribunal - appeal dismissed.
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2023 (2) TMI 1248
Principles of natural justice - Resolution Plan already approved during the pendency of this Application - Applicant/Appellant was not given opportunity to meet the Chairman-cum-Managing Director, who is the Competent Authority for considering the proposal of the Applicant/Appellant who is an MSME - HELD THAT:- It is open for the Applicant/Appellant to make such application, as permissible in law, before the Adjudicating Authority for consideration of this grievance, if any. Learned Counsel for the Applicant/Appellant submits that he is making offer higher than the Successful Resolution Applicant, whose plan has been approved. It is open for the Applicant to place his plea, as admissible in law, before the Adjudicating Authority.
Thus, no case has been made out to make further order in I.A. No. 259 of 2023. Any Application filed by the Applicant shall be considered in accordance with law by the Adjudicating Authority.
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2023 (2) TMI 1247
Resolution Plan was filed by Resolution Professional for consideration before the Adjudicating Authority - Approval under Section 31(4) proviso of the I&B Code has not yet been obtained from Competition Commission of India - HELD THAT:- The Adjudicating Authority relying on three member bench judgment of this Appellate Tribunal in Arcelormittal India Pvt. Ltd. vs. Abhijit Guhathakurta, [2020 (1) TMI 277 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] and another three member bench judgment in Makalu Trading Ltd. and Ors. vs. Rajiv Chakraborty and Ors., [2020 (9) TMI 386 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , NEW DELHI] has taken the view that it is not mandatory to obtain the approval by the Competition Commission of India prior to approval by CoC and the same can be obtained during pendency of the application for approval pending before the Adjudicating Authority. The Adjudicating Authority rejected the Intervention Application filed by the Appellant holding that Appellant has no locus relying on its earlier order passed on 22.09.2022.
Learned counsel for the Respondent No.1 and 2 submits that the issue as to whether the approval under Section 31(4) proviso is necessary/mandatory or not has already been heard by the Adjudicating Authority in Intervention Application of other stakeholder and order has been reserved on 09.02.2023. Respondent No.4 also adopted the submissions of Respondent No.1.
There are no reason to enter into the issue as the said issue has already been reserved for consideration before the Adjudicating Authority.
Appeal disposed off.
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2023 (2) TMI 1242
Seeking approval of the Resolution Plan - eligibility of the Resolution Applicant as per Section 29A of Insolvency and Bankruptcy Code, 2016 - HELD THAT:- In compliance to the order dated 09.12.2022, the RP filed Memo vide diary no. 5625 dated 21.12.2022 stating that, in the present case there are no debts or liabilities due and payable to the Central Government, any State Government or any Authority. The resolution professional has not received any claim from any government department, institution or any statutory authority. It is stated that no claims have been made, even belatedly after nearly 2 years of the CIRP being initiated. No employees have filed any claims or claimed any unpaid Provident Fund/Gratuity payments by the Corporate Debtor. The Provident Fund Commissioner or the EPFO have not filed any claims before the resolution professional. Further, the resolution applicant in the Resolution Plan (at Page No. 98 of the application submitted for the approval of resolution plan-para D in the table under Clause II of the Resolution Plan), has proposed to make 100% payment towards the outstanding statutory dues, if any, anytime.
The MSME UDYAM Certificate obtained subsequent to the initiation of CIRP is required to be ignored and the Successful Resolution Applicants in the case are not eligible under Section 29A r. w. s. 240A of IBC. The Resolution Plan submitted in therefore not tenable in law and is rejected under section 31(2) r.w.s 30(2)(e) of IBC.
Application disposed of.
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2023 (2) TMI 1235
Admissibility of Section 7 Application - applicability of Section 5(4) of the SARFAESI - whether the proceeding could have been continued and assignment had no effect on the proceeding? - HELD THAT:- The provisions of Section 5(4) of SARFAESI Act are clear and categorical that mere assignment during pendency of the proceeding, as referred in 5(4) of SARFACEI Act, shall not be prejudicially affected by the reason of acquisition of financial debt by the said JC Flower ARC as the case may be, but the suit or appeal or other proceeding may be continued, prosecuted and enforced by the assignee JC Flower ARC.
By virtue of Section 5(4) of SARFAECI Act, the Application could have been continued and would not have been prejudicially affected by reason of acquisition of the financial asset. But present is the case, where an application has been filed by the Corporate Debtor praying for dismissal of Section 7 Application on which application the Adjudicating Authority passed the order on 19.01.2023 taking note of the Application and granted time to Financial Creditor to file Reply since it has waived notice. Adjudicating Authority categorically directed that the Reply be filed before the adjourned date after duly serving copy to the Corporate Debtor.
The Adjudicating Authority, it having already issued notice on the application, granted time to the Financial Creditor to reply the Application, ought to have considered the Application. At this stage when the Application has not been considered, it is not necessary to express any opinion on the merits of the Application which may prejudice the parties before the Adjudicating Authority.
Let Adjudicating Authority consider the Application and pass fresh order both on Application IA No. 210 of 2023 and Section 7 Application in accordance with law.
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2023 (2) TMI 1223
Prayer for closure of the Liquidation Process of the Corporate Debtor - HELD THAT:- It is evident that the assets of the Corporate Debtor were sold to the Successful Bidders supra. It is seen from Form-H that the amount of Rs. 10,23,89,263/- realized from the sale of Liquidation Estate was distributed among the stakeholders as per Section 52 or 53 of the Code. A copy of the Auditor Certificate is filed at page Nos. 40 to 51(a) of the application. The details of distribution is at page Nos. 28 to 29 of the Final Report. Further, by going through the Final Report, it is evident that the Liquidator has sold the Corporate Debtor as a going concern as such it is a fit case for closure of Liquidation process.
The closure of the Liquidation proceedings against the Corporate Debtor viz. M/s. ICSA (India) Limited is ordered from the date of this Order, in terms of Regulation 45 (3) of Insolvency & Bankruptcy Board of India (Liquidation Process) Regulations, 2016. Consequently, the Liquidator stands relieved.
Application allowed.
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2023 (2) TMI 1199
Appellant is Financial Creditor or not, for the purpose of filing an application claiming it in Form C instead of Form CA - Appellants had already obtained a decree from the UPRERA regarding refund of their amount.
HELD THAT:- Hon’ble Supreme Court in the case of KOTAK MAHINDRA BANK LIMITED VERSUS A. BALAKRISHNAN & ANR. [2022 (6) TMI 13 - SUPREME COURT] held that once the Recovery Certificate has been issued, the party in possession of the Recovery Certificate is to be considered as a Financial Creditor.
There are no merit in the present appeal and the same is hereby dismissed.
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2023 (2) TMI 1181
Approval of a Resolution Plan in respect of McNally Sayaji Engineering Limited (Corporate Debtor) - approval of the resolution plan by the Committee of Creditors already done - HELD THAT:- The Resolution Plan has been approved with 99.787% voting share. As per the CoC, the plan meets the requirement of being viable and feasible for revival of the Corporate Debtor. By and large, all the compliances have been done by the RP and the Resolution Applicant for making the plan effective after approval by this Bench.
On perusal of the documents on record, it is clear that the Resolution Plan is in accordance with sections 30 and 31 of the IBC and also complies with regulations 38 and 39 of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016.
Granting time to comply with the statutory obligations or seeking approvals from authorities - HELD THAT:- The Resolution Applicant is directed to do so within one year from the date of this order, as prescribed under section 31(4) of the Code.
This Adjudicating Authority has power to grant reliefs, waivers and concessions only in relation to the Code and the Companies Act 2013 (within the powers of the NCLT) for achieving the objective of the Code. No reliefs, waivers and concessions that fall within the domain of other government department/authorities are granted. The reliefs, waivers and concessions that pertain to other governmental authorities/departments shall be dealt with the respective competent authorities/forums/offices, Government or Semi Government of the State or Central Government with regard to the respective reliefs, waivers and concessions. The competent authorities including the Appellate authorities may consider grant such reliefs, waivers and concessions keeping in view the spirit of the Code.
On the date of approval of resolution plan by the Adjudicating Authority, all such claims, which are not a part of resolution plan, shall stand extinguished and no person will be entitled to initiate or continue any proceedings in respect to a claim, which is not part of the resolution plan - Petition disposed off.
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2023 (2) TMI 1180
Belated filing of claim - claim - Seeking direction the liquidator to admit the claim of the applicant - claims were submitted 85 days after the last date that was on 05.12.2021 - HELD THAT:- It is submitted that the Corporate Debtor, Respondent herein has entered into the Supply Agreement dated 24.08.2018 with the Appellant. Further, the Agreement was between the Appellant and Mohan Motor Udyog Pvt. Ltd. a Partnership firm and the Respondent being Mohan Motor Udyog Pvt. Ltd., has nothing to do with the Supply Agreement dated 24.08.2018 and further the claim was filed with a delay of 85 days despite the notice of liquidation being published on the website of the IBBI and sufficient time being granted to all the creditors to file their claim.
In view of the fact, the Adjudication Authority has rightly been passed the impugned order - there are no merit in the instant Appeal. Therefore, the instant Appeal is dismissed.
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2023 (2) TMI 1170
Approval of Resolution Plan - It is submitted that the Adjudicating Authority committed error in not accepting the entire claim of the Appellant which was admitted - HELD THAT:- There are no dispute between the parties regarding the facts which took place in the CIRP and the claim which was admitted in the CIRP.
On comparison of the provisions of Section 48 of the provision of Gujarat Values Added Tax which was relied in “Rainbow Papers Limited [2022 (9) TMI 317 - SUPREME COURT]” and the Provisions of Section 37 which is sought to be relied on in the present Appeal, distinction between the provisions is clear. Section 37 specifically uses the expression “subject to any provision regarding creation of first charge in any central act”. The provision itself contemplated thus that Section 37 was subject to any provision in Central Act. The IBC Section 53 itself provides waterfall mechanism which may be treated to be law which has been contemplated under Section 37 of the MVAT Act, 2002.
The Judgement of the Hon’ble Supreme Court in “Rainbow Paper Limited” relied by Learned Counsel for the Appellant is distinguishable. The Appellant having been treated as Operational Creditor allocation of amount in the Resolution Plan cannot be said to be in violation of Section 30 (2)(b) - thus, no ground has been made to interfere with the Impugned Order.
Appeal dismissed.
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2023 (2) TMI 1169
Waiver of Service of notice - Section 5, 21, 310, 330, 331 and Section of 53 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- Ms. Deepanwita Priyanka, learned counsel accepts notice on behalf of the respondent no.1-State of Gujarat.Thus, service of notice in respect of Respondent no.1-State of Gujarat is waived of.
List the matters on 16th March, 2023 at 02:00 p.m.
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2023 (2) TMI 1142
Locus Standi of Petitioner to file SLP - Seeking Extension of transit anticipatory bail granted - order impugned by the petitioner arises out of the proceedings initiated by the respondents herein before High Court of Delhi, challenging the First Information Report lodged against them - petitioner contends that the petitioner is an interested party to challenge the extension of anticipatory transit bail granted to the respondents who are suspended directors of the company against which insolvency proceedings are pending under IBC.
HELD THAT:- It is an admitted fact that the petitioner is neither the informant nor a party to the proceedings pending before the High Court and is totally unconnected with the First Information Report lodged by the financial creditors who were also the members of the committee of creditors.
The petitioner has no locus in the matter and thus, the permission to file special leave petition cannot be granted - Application dismissed.
Special Leave Petition (Crl.) No. 2653-54 of 2023
Validity of FIR - quashing of the First Information Report by invoking Section 482 of Criminal Procedure Code (Cr.PC) before the Delhi High Court - HELD THAT:- Since the proceedings are pending before the High Court of Delhi awaiting an adjudication, there is no reason or occasion to interfere with the same at this stage. There are no reason to believe that the legal position, as learned counsel for the petitioners has tried to canvass by relying upon the aforesaid judgments of this Court, will not be taken into consideration by the High Court, as and when the same is brought to its notice.
Thus, no useful purpose would be served by keeping this petition pending before this Court and interest of justice would stand served by requesting the High Court to consider and decide, Criminal M.C. No. 6408 of 2022, Shiv Kumar & Ors. Vs. State of West Bengal & Anr. pending before it as expeditiously as possible preferably within a period of 6 weeks from the date of receipt of this order in accordance with law on its own merits.
Writ Petition (Criminal) No. 71 of 2023
Seeking to quash the First Information Report - Sections 406,420 and 120-B of IPC - HELD THAT:- There are no reason to entertain this Writ Petition for the reliefs sought under Article 32 of the Constitution of India when the petitioners can effectively approach the jurisdictional High Court for the said reliefs, more particularly, when the petitioners have already invoked the jurisdiction of the High Court, in respect of an identical First Information Report, lodged against them at Calcutta.
This Writ Petition need not be entertained. Liberty is reserved to the petitioners to approach the jurisdictional High Court by means of an appropriate proceedings, seeking appropriate reliefs.
Petition disposed off.
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9911796707
