|
Advanced Search Options
Insolvency and Bankruptcy - Case Laws
Showing 61 to 80 of 177 Records
-
2021 (5) TMI 579 - NATIONAL COMPANY LAW TRIBUNAL , BENGALURU BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- The claim raised with reference to amount due for invoices dated 10.06.2016 and 05.07.2016 amounting to ₹ 7,59,962/- along with an interest on the outstanding due amounting to ₹ 4,00,419/- @ 18% p.a., as per the terms of the invoice from the due date of the invoice till the date of the Demand Notice. It is not the case of Petitioner that debt in question is un-disputed. The Respondent has filed list of various emails exchanged with the Petitioner to show that the debt and default are in dispute.
There is a pre-existing and bona fide dispute exists about the claim made by the Petitioner. Apart from pre-existing dispute, the instant Petition is filed to recover such disputed amount rather than to initiate CIRP on justified grounds - the Petitioner failed to make out any case so as to initiate CIRP in respect of Corporate Debtor.
Petition dismissed.
-
2021 (5) TMI 578 - NATIONAL COMPANY LAW TRIBUNAL , BENGALURU BENCH
Rejection of claim of financial debt filed by the Applicant with the Resolution professional - section 60(5) of the Insolvency and Bankruptcy Code, 2016 r/w Rule 11 of the National Company Law Tribunal Rules, 2016 - HELD THAT:- The Applicant has annexed all the necessary documents required to establish a debt, further, the Applicant has submitted his claim in Form-C within the stipulated period from the public announcement, as per the Code and the Regulations.
It is well settled that the date of default/NPA has to be taken as date for ascertaining limitation. The Applicant has rightly taken support from the case decided by the Hon'ble NCLAT, New Delhi in the matter of MR. HARSUKBHAI P. LAKKAD VERSUS BANK OF BARODA (ERSTWHILE DENA BANK) & ANOTHER [2020 (8) TMI 496 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] in where it was held that the date of default/NPA is to considered for counting the period of limitation under Article 137 of the Limitation Act, 1963.
There has been no written acknowledgement of debt, however, the date of NPA being 06.11.2019 has to be considered as the date of default. The claim is therefore well within period of limitation, and hence cannot be rejected for that reason - Further, the annexures include Hypothecation Agreement, Deeds of Guarantee for each of the loans. Acknowledgement of debt is not a prerequisite for a claim to be accepted. What is to be seen is whether there are documents to show that there is a debt which has been defaulted - It is clear from the perusal of the application, and the rejection communications that the Resolution Professional has erroneously rejected the claim of the Applicant.
Application allowed.
-
2021 (5) TMI 577 - NATIONAL COMPANY LAW TRIBUNAL , BENGALURU BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- The Petitioner has to make a case that there is a clear and undisputed debt, a default and also that the Respondent is insolvent and has lost its ability to pay its debts, the proceedings become mere recovery proceedings which is not intended by the legislature in introducing the I & B Code, 2016.
From the facts of the case it is seen that the Email dated 08.09.2018 issued by the Respondent to the Petitioner categorically pointing out that the credit note of 15% issued by Petitioner in response to the mail dated 21.03.2018 by Respondent pointing out quality issues of the materials supplied, was not acceptable as the Respondent incurred huge losses - Part payments having been made to the Petitioner, and the withholding of payments are clearly not on account of the Respondent's inability to pay but because of the disputes as seen from the email dated 08.09.2018 which appear to be bonafide, regarding the materials supplied. It is not the object of the Code to push profit making and viable units into the rigours of insolvency resolution especially when the objective in the instant case is only recovery of disputed debt.
This petition has been filed to recover disputed debt, which is not the object of the Code, treating this AA as a debt recovery forum. An undisputed debt is a sine qua non for an application filed u/s. 9 of the Code. Allowing such a petition against a profit-making viable unit would defeat the purpose of the Code - Petition dismissed.
-
2021 (5) TMI 576 - NATIONAL COMPANY LAW TRIBUNAL , KOLKATA BENCH
Seeking withdrawal of the application, which was filed by him seeking clarification of the order dated 14.01.2020 passed by this Bench - whether once elected to approach the Hon'ble NCLAT, the Liquidator ought not to have filed another application for seeking clarification of the order? - HELD THAT:- It is true that having once approached the Hon'ble NCLAT in appeal against the order dated 26.06.2020, the applicant/liquidator ought to have desisted from filing another application bearing IA No. 1165/KB/2020 before this Adjudicating Authority seeking clarifications. The applicant is a seasoned professional and would have been well advised not to venture into such a misadventure. Be that as it may, in these circumstances, not granting leave to withdraw will amount to holding the appeal before the Hon'ble NCLAT hostage, which we are loathe to do.
The ends of justice will be met if we allow the applicant/liquidator leave to withdraw application, but at a cost of ₹ 50,000/- to be paid to the Prime Minister's Citizen Assistance and Relief in Emergency Situations (PM-CARES) Fund, within a period of two weeks from today - application disposed off.
-
2021 (5) TMI 574 - NATIONAL COMPANY LAW TRIBUNAL , MUMBAI BENCH
Liquidation of Corporate Debtor - Section 60 (5) of the Insolvency and Bankruptcy Code, 2016, as amended and Rule 11 of the National Company Law Tribunal, Rules, 2016 - HELD THAT:- Though the Resolution Plan was approved by the NCLT on 25.11. 2019, till date the Resolution Applicant has deliberately failed to implement the Resolution Plan. Aggrieved by the order of the Steering Committee, the Resolution Applicant filed an appeal before the Hon'ble NCLAT and NCLAT did not agree with the submissions of the Resolution Applicant, dismissed the appeal and confirmed the order of this bench dated 18.02.2020. The Resolution Applicant blatantly violated NCLT order dated 18.02.2000 and the Hon'ble NCLAT order dated 25.06.2020.
From the records it appears that the total value of the Resolution Plan is approx. ₹ 900/- crores out of which ₹ 420 crores to be upfront payment and ₹ 480 crores by issuing NCDs and the Resolution Applicant failed to bring in even 5% of the plan amount. CoC permitted the Resolution Applicant to submit performance security of ₹ 42 crores with balance of ₹ 48 crores to be deposited within 90 days of the CoC's approval. However, till date the Resolution Applicant has failed to deposit the balance amount.
As per I & B code if no Resolution Plan is approved by the COC/Adjudicating Authority within the prescribed timeline, the extended timeline the natural corollary, automatic next step is only Liquidation of the Corporate Debtor therefore in the instant case the Adjudicating Authority did not satisfy to grant additional time to complete the resolution process as prayed for instead this Adjudicating Authority is completely satisfied to pass an order for Liquidation of the Corporate Debtor - The entire CIRP process has been carried out by exercising the Commercial Wisdom of the COC therefore the failure to implement the plan by the successful Resolution Applicant after carrying out the required due diligence, various approval process including valuation matrix, financial matrix etc therefore there is no need to grant additional time to start the process once again. Considering the above facts and background we are of the considered view that in the interest of all stake holders it is better to order for liquidation of the Corporate Debtor and the process may be completed at the earliest and in the liquidation the Corporate Debtor may be sold as a going concern among various other methods provided in I & B code.
Since time is essence, maximisation of value of assets of the Corporate Debtor is primary object of I & B Code, we direct the Monitoring Agency, the Steering Committee, COC to carry out the Liquidation process in accordance with I & B code as well as the Rules, Regulations prescribed there under and we hereby appoint the Applicant Mr. Abhijit Guhathakurta as Liquidator and he is directed to complete the Liquidation Process in accordance with Law - The initiation of liquidation process against the Corporate Debtor is allowed.
Application allowed.
-
2021 (5) TMI 573 - NATIONAL COMPANY LAW TRIBUNAL , MUMBAI BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- The Bench notes that the Petitioner has supplied goods as per the purchase orders issued by the Corporate Debtor from time to time. The ledger account shows the details of invoices, monies paid by Corporate Debtor and monies outstanding to be paid by Corporate Debtor - The Bench also notes that appropriate invoices in respect of the same has been placed by the Petitioner upon the Corporate Debtor wherein the goods supplied and the amount mentioned in the invoices has been admitted in all cases by the Corporate Debtor.
This bench is of the considered view that the Corporate Debtor is liable to pay the total amount of ₹ 1,01,12,793/- which includes principal of ₹ 46,27,984/- Plus ₹ 54,84,809/- as a compounded interest - the outstanding debt of more than ₹ 1,00,000/- is due and payable against the Corporate Debtor and Corporate Debtor has committed default in making the payment. Hence the petition is admitted.
Petition admitted - moratorium declared.
-
2021 (5) TMI 572 - NATIONAL COMPANY LAW TRIBUNAL , MUMBAI BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - Corporate Debtor is a party to the Debenture Trust Deed - accrued interest was not paid when it became due and payable - existence of debt and dispute or not - HELD THAT:- The Corporate Debtor is a party to the Debenture Trust Deed in its capacity as a security provider/co-obligor and surety to that. Along with the Issuer Company, i.e., LDR, the Corporate Debtor is jointly and severally liable to repay all outstanding amounts under the NCDs. Under the terms of the Debenture Trust Deed, the Corporate Debtor agreed to make payments to the debenture holders by way of issue of an unconditional, irrevocable Corporate Guarantee. The Bench notes that as per Clause 2 of the Corporate Guarantee dated 06.10.2016, the Corporate Debtor is not only liable as a surety but also as a primary obligor. As per Clause 2 of the Deed of Guarantee, the obligation on part of the Corporate Debtor is unconditional and irrevocable. Further, the Corporate Debtor is liable as if it is the Principal Debtor under the Debenture Trust Deed as per Clause 16 of the Deed of Guarantee.
The Bench notes that the Debenture Trustee is duly registered with the RoC and certification of charge has been annexed in the Petition. A Bank statement reflecting disbursal of monies has also been annexed in the Petition. We note that Corporate Debtor has not denied the execution of the trust deed or the deed of guarantee. It is also not disputed by the Corporate Debtor regarding the monies disbursed and the quantum of debt due and computation of interest.
The default and its consequences clearly provide that nonpayment of interest towards outstanding NCDs is an 'event of default' and the Debenture Trust Deed recognizes that in case there is an 'event of default', the Petitioners/Debenture Holders are entitled to recover the money paid towards the NCDs. Therefore, the Bench notes that in this case an 'event of default' has occurred in terms of Clause 8.8 of the Debenture Trust Deed when accrued interest was not paid when it became due and payable and therefore the Corporate Debtor was entitled to redeem the NCDs.
The existence of debt and default is reasonably established by the Petitioner as a major constituent for admission of a Petition under Section 7 of the Code. Therefore, the Petition under sub-section (2) of Section 7 is taken as complete - Application admitted - moratorium declared.
-
2021 (5) TMI 571 - NATIONAL COMPANY LAW TRIBUNAL , GUWAHATI BENCH
CIRP process - discontinuation of Interim Resolution Professional in the Corporate Insolvency Resolution Process of Shree Sai Rolling Mills (India) Pvt. Ltd. - amicable settlement between the IRP and the FC - HELD THAT:- The Corporate Resolution Process (CIRP) of Shree Sai Rolling Mills (India) Pvt. Ltd. has been set aside with effect from 20.06.2020, but it is made clear that though the CIRP is set aside, but the Application filed by the FC under Section 7 of the IBC is not dismissed/is alive. It is further made it clear that both the FC and the CD are at liberty to come before this Bench with regard to the petition filed by the FC under Section 7 of IBC after the outcome of the appeal preferred by the FC before the Hon’ble Supreme Court against the impugned order of the Hon’ble NCLAT dated 18.06.2020.
The IRP, Mr. Anil Agarwal is hereby relieved, as prayed for, from his assignment with effect from 20.06.2020 the day on his receipt of the Order of the Hon’ble NCLAT and also at the request made by the CD after presenting the order dated 18/06/2020 of Hon’ble NCLAT on 20/06/2020 - It is also taken on record that the matter relating to the payment of fees and other CIRP cost have been settled amicably between the IRP and the FC. However, we do not appreciate the issue relating to the IRP fees / CIRP cost is brought before this Bench for adjudication, when the Application is filed under Section 7 of IBC and IRP is appointed only at the request of the FC and with the consent letter of the IRP.
Application disposed off
-
2021 (5) TMI 551 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , CHENNAI
Approval of Resolution Plan - grievance of the Appellant is that the ‘Adjudicating Authority’ had committed an error by placing an additional paragraph 22 of the ‘Impugned Order’, as a result thereof, the financial viability of the plan has been seriously affected by opening of the plan towards ‘undecided claims’ - HELD THAT:- It comes to be known that the final ‘Resolution Plan’ was put up for due consideration by the ‘Committee of Creditors’ in the meeting that took place through ‘Video Conferencing’ on 15.09.2020. In reality, the said ‘Resolution Plan’ was approved by 80.64% of the voting share of the ‘Committee of Creditors’. Besides this, the ‘Resolution Applicant’ had confirmed that ‘Resolution Plan’ duly complied with the requirements of the I & B Code and Regulations made thereunder. Based on the approval of ‘Resolution Plan’ by the ‘Committee of Creditors’ under Section 30(4) of the Code, as the successful ‘Resolution Plan’, the ‘Applicant’ projected an application under Section 30(6) of the Code, before the ‘Adjudicating Authority’ praying for its approval as per ingredients of Section 31(1) of the Code and Regulation 39(4) of the CIRP Regulations.
This Adjudicating Authority is of the considered view that if any waiver is sought in the Resolution Plan, the same shall be subject to approval by the concerned Authorities. The same view has also been held by Hon’ble Principal Bench, NCLT in the case of [2018 (9) TMI 55 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI] and therefore, the same is to be setaside, this ‘Tribunal’ comes to a resultant conclusion that the said ‘Observations’ are not in the form of ‘imposition of an additional condition’ thereby opening up the plan in regard to the ‘undecided claims’, because of the reason that the ‘Adjudicating Authority’ is within its limits to express its views/opinion(s).
Appeal dismissed.
-
2021 (5) TMI 550 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Maintainability of application - initiation of CIRP - Approval of resolution plan - Corporate Debtor failed to make repayment of its dues - Financial Creditors - time limitation - maintainability of second application against the Corporate Debtor as for the same debt and default, CIRP has already been taken place against the Corporate Guarantor and the Financial Creditor has accepted the amount in full and final settlement of all its dues.
Time Limitation - HELD THAT:- In the present case, admittedly the date of default is 15.04.2012. Within three years, i.e on 24.03.2015, the Debt Repayment and Settlement Agreement was entered into by the parties (Diary no. 24049, Page 214-245, Appeal Paper Book). The Corporate Debtor failed to repay the debt as per Debt Repayment and Settlement Agreement. Therefore, Financial Creditor cancelled the said agreement (Diary no. 24049, Page 246-256, Appeal Paper Book) on 29.05.2017. In this agreement, the Corporate Debtor has specifically acknowledged the debt - Thereafter, within three years i.e on 10.02.2020, the Financial Creditor filed the Application under Section 7 of the IBC. It is apparent that the Application is filed within extended period and the Application is within limitation.
There are no force in the arguments advanced by the Ld. Counsel for the appellant - the finding of Ld. Adjudicating Authority that the Application is within limitation is affirmed.
Whether the second Application under Section 7 of IBC is not maintainable against the Corporate Debtor as for the same debt and default, CIRP has already been taken place against the Corporate Guarantor and the Financial Creditor has accepted the amount in full and final settlement of all its dues? - HELD THAT:- Application under Section 7 of the IBC against the Corporate Debtor for the same debt and default is maintainable in the light of judgment of Athena Energy Ventures [2020 (11) TMI 800 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , NEW DELHI].
The argument made by the Ld. Counsel of the appellant that CIRP has already taken place against the Corporate Guarantor therefore, the second application against the Corporate Debtor is not maintainable, is not convincing. It cannot be held that the Financial Creditor accepted the amount in full and final settlement of all its dues. We are therefore of the considered view that the Application under Section 7 of the IBC is maintainable against the Corporate Debtor for the same debt and default and the Financial Creditor can recover the remaining dues from the Corporate Debtor.
Whether the Resolution Applicant is entitled to exercise its right over the subsidiaries company of ACIL (Corporate Guarantor)? - HELD THAT:- No forensic audit report place on record to prove that the ACIL fraudulently made investments in its subsidiaries i.e. Corporate Debtor. Therefore, the assets of the subsidiaries cannot be included in the resolution plan in relation to ACIL submitted by Resolution Applicant (Appellant).
Whether the approved resolution plan has included the SEZ business of the Corporate Debtor? - HELD THAT:- In the case of Facor Alloys Ltd. [2020 (11) TMI 848 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] the shares of Facor Power Ltd. i.e. 86% shares were held by the Corporate Debtor. The RP in accordance with regulation 27 of the IBBI (Insolvency Resolution Process of Corporate Persons) Regulations 2016 appointed two registered valuers to determine the fair value and liquidation value of the assets of the Corporate Debtor (Including the shares held by the Corporate Debtor in FPL). However, in the present case, during the CIRP of ACIL, no valuer was appointed to determine the fair value of the shares held by the the Corporate Debtor. Therefore, the assets of the Corporate Debtor (Respondent) cannot be included in the resolution plan - Thus, the facts of the case of Facor Alloys Ltd. are quite different from those of the present case. Thus, this citation is not helpful to the Appellant.
Thus, the SEZ Business of the Corporate Debtor is not included in the resolution plan submitted by the Appellant.
Appeal disposed off.
-
2021 (5) TMI 545 - NATIONAL COMPANY LAW TRIBUNAL , CHENNAI BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - interest on delayed payment - existence of debt and dispute or not - suppression of material facts - HELD THAT:- It is clearly brought to our notice that the amount claimed by the applicant is based on the delayed payment of the invoice and interest thereon at the rate of 24% per annum. The applicant relies only on the document at page No. 11 filed along with the application in which there is no seal of the Corporate Debtor. Whether the Applicant is entitled to claim interest at the rate of 24% per annum based on the invoice during business transaction between the parties is the subject matter of the trial and cannot be decided in summary suit. This Adjudicating Authority cannot isolate one invoice and conclude that amount is due and payable - whether the applicant is entitled to the interest at the rate of 24% per annum cannot be decided, without trial based on the invoice which is not signed by the Corporate Debtor in token of acceptance. There are several other transactions and business dealings but the applicant has filed only one invoice. Hence, there is clearly suppression of material facts.
Whether Operational Creditor is entitled to claim "interest on the delayed payment"? - what is the rate of interest the applicant is entitled to and from which period is the amount, if any, is due and payable? - HELD THAT:- It cannot be concluded that based on the copy of invoice that applicant is entitled for the interest at the rate of 24% per annum since it is the subject matter of the City Civil Court to adduce evidence and detailed trial is required to conclude whether any interest is due and payable by the Corporate Debtor to the Operational Creditor, under invoice.
Application dismissed.
-
2021 (5) TMI 544 - NATIONAL COMPANY LAW TRIBUNAL , CHENNAI BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational creditors - existence of debt and dispute or not - HELD THAT:- It is seen that there was business dealing between both the parties. The nature of goods being perishable commodity, slightest delay shall cause huge loss. Further, there were lots of discussions and reconcilement of the accounts between both the parties, as evident from the exchange of mails. There is also counter claim raised by the respondent, and the same is evident by auditor statement for the relevant years. The 'debt' as claimed by Operational Creditor is towards carton boxes and other packing material supplied by Operational Creditor along with purchase orders of the year 2016-2017. The packing materials are also perishable. Further, the onus of, who has to take back the unused materials, whether the same is adjusted towards payment are not clear.
The applicant has failed to quantify the alleged 'debt' and the 'date of default'. Neither "debt" nor "default" is proved - Petition dismissed.
-
2021 (5) TMI 541 - NATIONAL COMPANY LAW TRIBUNAL , BENGALURU BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- The Respondent has not produced sufficient documentary evidence supporting its claim that the NOC was communicated to the Petitioner and the communication regarding cancellation of agreement on account of non-payment of requisite amounts by the Petitioner to the Respondent. In absence of documentary evidence of communications in relation to disputes, the Respondent's plea appears to be bald and an attempt to avoid payment of dues. Further, the Respondent has failed to produce latest balance sheets showing that the company is an ongoing concern generating revenue and solvent.
No evidence has been produced to show communication of NOC. It is clear from the material on record that there is an operational debt which has fallen due on 23.07.2018 and has not been paid. Further, the Respondent has failed to point out any substantial dispute. Despite providing sufficient opportunity, the Respondent also failed to produce its audited financial statements or any other proof of its solvency.
Application admitted - moratorium declared.
-
2021 (5) TMI 539 - NATIONAL COMPANY LAW TRIBUNAL , MUMBAI BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - time limitation - HELD THAT:- Though the provision of Sec. 19 of Limitation Act, 1963 is met here, the Bench takes note of the fact that in the present age of digital payments very few payments would be accompanied by a handwritten and signed note. It is mostly accomplished by the transfer of an amount from one bank account to the other through a digital format. All the banks in this regard require a borrower to have the saving/current account in the bank before a loan is disbursed and the transfer of funds might be repayment of the loan from saving/current bank account to the loan account on a periodic basis as per the terms of the loan regarding disbursement.
In the present instance the provision of Section 19 of the Limitation Act, 1963 is squarely met as an acknowledgment of payment has been signed by the Director of the Respondent Company. Therefore, from 31.03.2017 a fresh period of limitation of 3 years commences which would end on 30.03.2019. Since the present Petition was filed on 09.03.2020 it is within the period of limitation as prescribed under Section 19 of the Limitation Act.
The Petitioner has not received the outstanding Debt from the Respondent and that the formalities as prescribed under the Code have been completed by the Petitioner, we are of the conscientious view that this Petition deserves 'Admission'.
Petition admitted - moratorium declared.
-
2021 (5) TMI 514 - NATIONAL COMPANY LAW TRIBUNAL , AHMEDABAD BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - suit for for supplying inferior quality of goods to the applicant - existence of debt and dispute or not - HELD THAT:- The main objection raised by the respondent (point No. 3 -page 4 to the reply) is that the petitioner firm had filed a suit No. 3201 of 2019, on 03.12.2019, before the Hon'ble Judge of Bombay Civil Court against one Amivarsha Industries for supplying inferior quality of goods to the applicant, which, in turn, would have been supplied to the respondent company - Such plea raised by the respondent cannot be considered as a pre-existing dispute, because the said dispute is between the applicant and a third party viz. Amivarsha Industries and it has nothing to do with the respondent. Similarly, any dispute between the applicant and a third party regarding quality, quantity and nonpayment to the third party Amivarsha Industries cannot be considered as a reason for non-payment of the debt of the applicant by the respondent.
The Adjudicating Authority is only required to consider whether there is any default and the debt is due and payable. In the instant case, the applicant has placed on record enough documents evidencing the default and hence, the present application deserves to be admitted - On perusal of the record it is also found that the instant petition filed by the applicant is well within limitation and there is no pre-existing dispute regarding the operational debt from the side of the corporate debtor.
In the instant application, from the material placed on record by the Applicant, this Authority is satisfied that the application is complete in all respect and the Corporate Debtor committed default in paying the operational debt due and payable to the Applicant - The documents produced by the operational creditor clearly establish the 'debt' and there is default on the part of the Corporate Debtor in payment of the 'operational debt'.
This adjudicating authority is of the considered view that operational debt is due to the Applicant and it fulfilled the requirement of I & B Code. No dispute has been raised by the respondent at any point of time. That, Applicant is an Operational Creditor within the meaning of Section 5 sub-section 20 of the Code. From the aforesaid material on record, petitioner is able to establish that there exists debt as well as occurrence of default and the amount claimed by operational creditor is payable in law by the corporate debtor as the same is not barred by any law of limitation and/or any other law for the time being in force.
The corporate debtor has committed default in payment of operational debt and, therefore, it is a fit case to initiate Insolvency Resolution Process by admitting the Application under Section 9(5)(1) of the Code - Application admitted - moratorium declared.
-
2021 (5) TMI 503 - NATIONAL COMPANY LAW TRIBUNAL , NEW DELHI
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - Jurisdiction - time limitation - service of notice - HELD THAT:- The Applicant has filed an affidavit under section 9(3)(b) dated 05.09.2019 affirming that no notice of dispute has been given by the Corporate debtor relating to dispute of the unpaid operational debt.
Jurisdiction - HELD THAT:- The registered office of corporate debtor is situated in Delhi and therefore this Tribunal has jurisdiction to entertain and try this application.
Time Limitation - HELD THAT:- The last invoice was raised on31.03.2018, and the present application was filed on 20.09.2019, hence the debt is not time barred and the application is filed within the period of limitation.
Existence of debt and default or not - HELD THAT:- The present application is complete and the Applicant is entitled to claim its dues, which remain uncontroverted by the Corporate Debtor, and moreover stand admitted as the corporate debtor appeared before the court and sought time for settlement. Therefore, the default of the operational debt is established beyond doubt.
Application is admitted - moratorium declared.
-
2021 (5) TMI 499 - NATIONAL COMPANY LAW TRIBUNAL , NEW DELHI BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - Time Limitation - Service of notice - HELD THAT:- Notice was issued to the Corporate Debtor vide order dated 19.11.2020 of the Adjudicating Authority. Further, it has been observed that neither a reply to the Section 9 application was filed by the Corporate Debtor nor has the Corporate Debtor ever appeared before the Adjudicating Authority - the Corporate Debtor in its reply to the Demand Notice dated 23.01.2020 has raised various disputes which arose before the issuance of the Demand Notice, however the Corporate Debtor has never appeared before the Adjudicating Authority to support its claim therefore, vide order dated 15.12.2020 the Corporate Debtor was proceeded ex-parte.
Time Limitation - HELD THAT:- The date of default is 27.09.2019 which is the date of the last invoice issued which was unpaid, and the present application is filed on 16.02.2020. Hence the application is not time barred and filed within the period of limitation.
Jurisdiction - HELD THAT:- The registered office of corporate debtor is situated in Delhi and therefore this Tribunal has jurisdiction to entertain and try this application.
The Application filed by the Operational Creditor is complete in all respect. This authority is satisfied that an amount of ₹ 63,36,049/- towards unpaid invoices for the material supplied by the Operational Creditor, is due and payable by the Corporate Debtor to the Operational Creditor, which it failed to pay. Moreover, after reply to the Section 8 notice, the Corporate Debtor has not appeared to defend this application giving rise to the presumption that the case of the Applicant is to be admitted - Application admitted - moratorium declared.
-
2021 (5) TMI 498 - NATIONAL COMPANY LAW TRIBUNAL , NEW DELHI BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational creditors - pre-existing dispute or not - HELD THAT:- The Operational Creditor has established the existence of debt and default on the part of the Corporate Debtor. The Corporate Debtor's plea of Consultancy agreement being void ab initio and error in computation of default amount does not stand any merit along with that, no documentary evidence substantiating the Corporate Debtor's plea regarding pre-existence of dispute in relation to non-performance of agreement was annexed in the reply. Furthermore, the Corporate Debtor's plea that a civil or Criminal litigation against Operational Creditor has already been initiated has not been substantiated with any relevant document. Hence, the Corporate Debtor fails to establish any pre-existence of dispute and in view of the above situation, this Tribunal admits this petition and initiates CIRP on the Respondent with immediate effect.
Application admitted - moratorium declared.
-
2021 (5) TMI 494 - CALCUTTA HIGH COURT
Fresh claim after approval of Resolution Plan - Consequence of Award in the arbitration proceedings - petitioner’s case is that by reason of the subsequent developments after the impugned Award, the application for setting aside of the Award is not maintainable any more - HELD THAT:- The contentions of the respondent with regard to the principles of res judicata applying to different stages of the same proceedings must therefore be read down in fit cases where orders are capable of being altered or varied on the emergence of new facts or situations. The principle essentially is to guard the court from abuse of process where the same matter in issue, which had been heard and finally decided by a court, is urged again between the same parties. This is unlike the present case as the question of maintainability of the application under Section 34 of the 1996 Act can be considered at any point of time on the legal aspect and particularly on the pronouncement of a decision relevant to the matter.
In COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LIMITED THROUGH AUTHORISED SIGNATORY VERSUS SATISH KUMAR GUPTA & OTHERS [2019 (11) TMI 731 - SUPREME COURT], the Supreme Court held that a Resolution Plan, once approved under Section 31 of the IBC, is binding on the corporate debtor and its employees, members, creditors, guarantors and other stakeholders.
In the present case, from the date of the admission of the application of initiation of the CIRP against the petitioner namely 18th September, 2017 until approval of the resolution plan on 16th May, 2018, the respondent, as an Award-holder had sufficient opportunity to approach the NCLT for appropriate relief. Second, the amount demanded by the respondent/ Award-holder as on 31st March, 2014 featuring in the Information Memorandum does not really help the respondent since the IBC and the CIRP regulations provide for specific procedural provisions for submission of claims (Ref: Regulations 7 and 12 read with Form B of the Schedule to the CIRP Regulations, 2016). The Award-holder hence was under an obligation to take active steps under the IBC instead of waiting for the adjudication of the application under Section 34 of the 1996 Act.
Whether the respondent could have lodged and pursued its claim before the NCLT when the impugned Award was challenged by the Award-debtor/petitioner in this Court on 31st October, 2008? - HELD THAT:- The merit of the stand taken must be seen in the light of Section 36 which has been modified and added by the 2016 amendment. The new Section 36 and sub-section (2) thereunder requires the Court to grant an order of stay of the operation of the Arbitral Award in accordance with Section 36(3) on a separate application for stay taken out by the Award-debtor. Section 36(2) marks a significant departure from the erstwhile provision in clarifying that filing of an application for setting aside of an Award under Section 34 shall not by itself make the Award unenforceable unless the Award is stayed by an order of Court in an application made in the manner provided under Section 36(3) of the Act.
The view of the Supreme Court as crystallized in Essar is that pre-existing and undecided claims which have not featured in the collation of claims and consequent consideration by the Resolution Professional shall be treated as extinguished upon approval of the Resolution Plan under Section 31 of the IBC. This can be seen as a necessary and an inevitable fallout of the IBC in order to prevent, in the words of the Supreme Court, a “hydra head popping up” and rendering uncertain the running of the business of a corporate debtor by a successful resolution applicant. In essence, an operational creditor who fails to lodge a claim in the CIRP literally missed boarding the claims-bus for chasing the fruits of an Award even where a challenge to the Award is pending in a Civil Court.
Petition disposed of as being rendered infructuous.
-
2021 (5) TMI 475 - NATIONAL COMPANY LAW TRIBUNAL , CHENNAI BENCH
Payment of additional litigation cost - scope of Resolution Plan - challenge to the Resolution as passed by the CoC to meet the expenditure in relation to the additional litigation costs out of the amounts payable to the related party, the Applicant being one of them, however, not being provided in the Resolution Plan - HELD THAT:- There are no force in the contention of the 1st Respondent that the CoC has passed a resolution in its 9th CoC Meeting dated 24.06.2019 that additional litigation cost is required to be met out of amounts due and payable to the related party financial creditors like the Applicant herein and that the said expenses are required to be defrayed by the said related party financial creditors out of the amounts due to them. If that were so, the same should have been included in the resolution plan itself, which was placed before the Adjudicating Authority for its approval.
There cannot be any open end in relation to the resolution plan and its implementation as sought to be portrayed by the 1st Respondent erstwhile Resolution Professional. If the CoC and RP had not factored the cost in relation to additional litigation and provided for it and having failed to include the same as it should have been included in the resolution plan, the said additional expenditure at a later stage (i.e.,) after approval of the Resolution Plan cannot be mulcted on the related party financial creditors. By virtue of the provisions of IBC, 2016 (i.e.,) Section 21 of IBC, 2016, they are also not part of the CoC and hence could not have raised any objections in relation to the same being disabled from the participation in the CoC Meeting and its deliberations. The 1st Respondent also fairly concedes the additional litigation expenses had not been provided in the Resolution Plan.
The amount which is payable to the Applicant is required to be paid out of the total resolution plan amount provided for the stakeholders in a sum of ₹ 28,55,06,654/- by the 1st Respondent without any demur within a period of 90 days from the date of this Order - Application allowed.
........
|
