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Insolvency and Bankruptcy - Case Laws
Showing 41 to 60 of 160 Records
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2022 (6) TMI 988 - NATIONAL COMPANY LAW TRIBUNAL , ALLAHABAD 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:- As far as date and amount of disbursement of loan are concerned, the same is not in dispute though there is no written agreement to this effect. Such amount being of the nature of loan is also not in dispute as it is so admitted by the corporate debtor. The repayment period of six months for such loan is also not disputed.
From the reply of the corporate debtor, it is also evident that both financial creditor as well as corporate debtor are having a business relationship for some time. The only plea which has been taken by the corporate debtor is that the amount has been paid partly through cheques and partly in cash. As regard to payment made in cash, except making oral submissions, no documentary evidence such as receipt or voucher duly acknowledged by the financial creditor has been brought on record. The claim of repayment of loan remains unsubstantiated by any evidence - there is a debt which is due and payable both in law and in fact and a default has occurred therein. Further, the amount of default is more than the threshold limit as prescribed under section 4 of the Code, at the time of filing of the present application.
This application complies with all requirements of the Code read with relevant Rules made thereunder. There is no impediment to the admission of the present application - petition admitted - moratorium declared.
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2022 (6) TMI 987 - NATIONAL COMPANY LAW TRIBUNAL , GUWAHATI BENCH
Seeking permission to allow to submit expression of interest published on 05/03/2022 so that the Applicant can file resolution plan - Applicant is not disqualified under section 29A of the insolvency and Bankruptcy code, 2016 in view of provisions of section 240A of the Insolvency and Bankruptcy Code, 2016 - eligibility of Micro, Small and Medium Enterprises to participate in the resolution plan - HELD THAT:- The Application under Section 10 of IBC filed by the CD itself for its default to the FCs was admitted by this Bench on 23/11/2021.
When the CIRP Period of 180 days was going to complete on 21/05/2022 and at that stage almost after 41 days from the last date of submission of the EOI, the Applicant on behalf of the Corporate Debtor in which he was Promoter/Director has submitted a simple letter dated 02.05.2022 to the Respondent No. 1 (RP) requesting the RP to allow them to submit a Resolution Plan and treat the said Letter as EOI without any reference of the compliance of the terms and conditions of the EOI.
Hence it is apparent that the letter submitted is all hypothetical when the Applicant CD itself couldn’t pay the dues to the FCs and had filed application under Section 10 of IBC for CIRP. The question of the Liquidation does not arise, as claimed by the Applicant here, when the Resolution plans received are under consideration.
It is clear that the intent of the Applicant is only to delay and defeat the CIRP process of the Corporate Debtor by filing this type of IA. The IBC process shall not be allowed to misuse and CIRP has to be completed in time in the interest of all stake holders - Application dismissed.
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2022 (6) TMI 986 - NATIONAL COMPANY LAW TRIBUNAL , KOLKATA 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 - whether there exists financial debt, which can constitute the basis for filing a petition under section 7 of the Code against the Corporate Debtor? - HELD THAT:- The facts do really cast serious doubts on the genuineness of the transactions alleged to be financial debt by the Financial Creditors. The facts regarding existence of Financial Debt, disbursement and default do not reconcile with the documents placed on record. On top of this, as stated above the Assessment Order passed in respect of the Corporate Debtor and the Forensic Audit Report further strengthen the suspicion in respect of the authenticity and bona fides of the transactions in question. The Financial Creditor has argued that the Assessment Order is only applicable with regards to assessee and does not bind the Financial Creditors. It is further contended that the same only speaks of Prarthna. This objection is unwarranted. It is not held that the Income tax Assessment Order is binding on this Tribunal.
In view of the entire gamut of facts, the interrelationship between the Financial Creditors (and Nikita and Active which merged into Narsingh), the forensic Audit Report and the analysis of the facts that we have done above, leave us unpersuaded to commence CIRP against the Corporate Debtor.
We cannot therefore in exercise of our summary jurisdiction under the Code, conclude that a bona fide Financial Debt exists. For this reason, this petition under Section 7(1) of the Code is not maintainable and hence we reject the Petition - petition dismissed.
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2022 (6) TMI 985 - NATIONAL COMPANY LAW TRIBUNAL , ALLAHABAD BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - allegation of inferior quality of goods supplied by the operational creditor - existence of debt and dispute or not - time limitation - HELD THAT:- It is seen from the records that notice of default under Section 8, IBC has been delivered and affidavit under Section 9(3)(b) of IBC has also been filed and debt fell due on 20.07.2017 and this application has been filed on 08.08.2019 so the application is found well within the limitation - It is noted that the application filed under section 9 is complete and complies with the requirements of the relevant provisions of IBC, 2016 read with Rules and Regulations made thereunder. The outstanding amount is more than the threshold limit of Rs. 1,00,000/-. There does not exist any dispute within the meaning of provisions of Section 8 & 9 of IBC, 2016.
The Operational Creditor has not proposed the name of any person to function as Interim Resolution Professional. Therefore, this Bench will appoint a person from the panel of names made available to it by the Insolvency & Bankruptcy Board of India.
Application admitted - moratorium declared.
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2022 (6) TMI 984 - NATIONAL COMPANY LAW TRIBUNAL , KOLKATA 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 clear that even though there was no written agreement between the Operation Creditor and the Corporate Debtor, a business relation did exist between them and that the CD had in fact supplied the whole spices to the CD for which ad hoc payments were also made on numerous occasions except against the invoices in question. The Corporate Debtor has claimed that there are pre-existing disputes regarding the quality of goods supplied to the Corporate Debtor.
However, the letters dated 27 June 2018 and 04 August 2018 regarding the same as sent by the Corporate Debtor are wrongfully addressed towards one Mr. Shankar Singh, whom the Corporate Debtor mistakenly addresses as the proprietor of Isha Food Products, Even though the relationship between Isha foods and Vashishta grinding works is not quite elaborated in the pleadings, it appears that no case has been made to prove that Shankar Singh is running all these companies, namely, Abhilasha Exports, Isha foods and Vashishtha Grinding, whereas the Operational Creditor has affirmed through an affidavit that the proprietor of Isha foods is Mr. Binod Kumar Chaudhary - Further, even if the wrongful mention of the addressee is taken to be a bona fide mistake, there is nothing on record to prove that the spurious goods being the blackish turmeric powder and other spurious powdered spices belonged to the batch of whole spices provided by Isha Food Products.
The mere allegation of collusion being raised cannot, by itself, be sufficient to prevent the admission of the present petition. Otherwise, in every case, the Corporate Debtor can come up with a defence that the acknowledgment given was unauthorized, thus escaping the clutches of the law. This proposition, therefore, cannot be upheld since it will have unlimited consequences.
This Adjudicating Authority is satisfied that a debt is due and payable by the Corporate Debtor towards the Operational Creditor and the Corporate Debtor has defaulted in the same. The petition has been filed in the requisite form and affidavit in compliance under section 9(3)(b) has been made. As such, this petition is complete in all respects.
Petition admitted - moratorium declared.
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2022 (6) TMI 926 - MADRAS HIGH COURT
Maintainability of the Civil Revision Petition under Article 227 of the Constitution - petitioner has got remedy before the National Company Law Appellate Tribunal - HELD THAT:- On a perusal of the recent judgments of the Apex Court, it is clear that when an appeal remedy is provided under the Act, the aggrieved party should exhaust the said remedy by filing an appeal before the Appellate Forum and the Writ Petition/Civil Revision Petition filed by them under Articles 226/227 of the Constitution is not maintainable. When the petitioner can raise all the grounds available to them under law before the Appellate Forum, the filing of the Civil Revision Petition under Article 227 cannot be entertained.
Reliance can be placed in the case of M/S EMBASSY PROPERTY DEVELOPMENTS PVT. LTD. VERSUS STATE OF KARNATAKA & OTHERS [2019 (12) TMI 188 - SUPREME COURT] where it was held that Though NCLT and NCLAT would have jurisdiction to enquire into questions of fraud, they would not have jurisdiction to adjudicate upon disputes such as those arising under MMDR Act, 1957 and the rules issued thereunder, especially when the disputes revolve around decisions of statutory or quasijudicial authorities, which can be corrected only by way of judicial review of administrative action. Hence, the High Court was justified in entertaining the writ petition and we see no reason to interfere with the decision of the High Court.
The Civil Revision Petition filed under Article 227 of the Constitution challenging the order passed by the National Company Law Tribunal is not maintainable - the Civil Revision Petition is dismissed as not maintainable.
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2022 (6) TMI 925 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Homebuyers/allottees - Non-execution of sale deeds of allottees - pendency of non-registration of sale deed in favour of such allottees - possession given without completion of certain auxiliary works - HELD THAT:- It is not in dispute even by the Respondent that the Appellants /allottees are not in possession of their respective units since 2015 - It is also not in dispute that the exchange of letters /emails are not there between the CD and the Appellants including the issue of registration of the units. No doubt, the Appellants were raising the issues like certain fit ins, parking area in basement, toilets, fire safety/fire alarm/springle issue, maintenance issue etc. raised with the CD apart from the issue of registration of property and completion certificate.
What the Respondent/RP has pointed out that the CD is the owner of the Commercial Space and has accepted that the possession was with the Appellants admittedly. The Appellants are allottees of commercial space in Coral Brio. Although the CD had handed over the possession of Commercial space to the Appellants, admittedly, no sale deed was executed by the CD in favour of allottees prior to the commencement of CIRP.
The rights of home buyers cannot be affected adversely in the Corporate Insolvency Resolution Process and their interest is to be appropriately preserved and protected within the parameters of the I & B Code, 2016.
This Appellate Tribunal is not in a position to sustain the order of the Adjudicating Authority and accordingly, this Tribunal sets aside the impugned order dated 16.01.2020, and directs the Resolution Professional to execute the sale deed after collecting Dues and Costs, if any, remaining unpaid, including the Costs of Registration, Penalty and other incidental Costs, till date, etc. - Appeal allowed.
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2022 (6) TMI 922 - DELHI HIGH COURT
Summon of petitioners - vicarious liability - offences punishable under Sections 31(1), 74(3) and 235A of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- Against the decision of the NCLAT in the case of Committee of Creditors of Amtek Auto Ltd. [2019 (8) TMI 877 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI], the Insolvency and Bankruptcy Board of India filed Civil Appeal Diary No. 32731/2019 wherein, vide order dated 23rd September 2019, [2019 (9) TMI 1652 - SC ORDER] the Hon’ble Supreme Court stayed the impugned judgment and held that the order dated 23rd September 2019 will not affect the progress of the other criminal cases and they shall proceed uninfluenced by the impugned order.
As regards the second issue taken up by the learned Senior Counsel for the petitioners that the petitioner Nos. 2, 3 and 4 could not have been summoned in their individual capacity by the learned Special Judge when the complaint was filed only against the company through petitioner Nos. 2, 3 and 4, prima facie, there appears to be merit as Section 74(3) of the I.B.C. does not impose a vicarious liability.
List on 13th April 2022.
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2022 (6) TMI 921 - NATIONAL COMPANY LAW TRIBUNAL , MUMBAI BENCH
Seeking approval of the Resolution Plan - exemption under the provisions of clause (c) and (h) of Section 29A read with Section 240A of the Code - section 30(6) of the Insolvency and Bankruptcy Code, 2016 (Code) read with Regulation 39 (4) of the IBBI )Insolvency Resolution Process for Corporate Persons) Regulations, 2016 - HELD THAT:- One of the justifications for approval of this resolution plan is that the amount proposed under the plan is higher than liquidation value of the Corporate Debtor - The RP has complied with the requirement of the Code in terms of Section 30(2)(a) to 30(2)(f) and Regulations 38(1), 38(1)(a), 38(2)(a),38(2)(b), 38(2)(c) & 38(3) of the Regulations.
The RP has filed Compliance Certificate in Form-H along with the Plan. On perusal the same is found to be in order. The Resolution Plan includes a statement under regulation 38(1A) of The Regulations as to how it has dealt with the interest of the stakeholders in compliance with the Code and the Regulations - The Resolution Plan has been approved by the CoC in the with 76.69% votes in terms of Section 30(4) of the Code.
In COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LIMITED THROUGH AUTHORISED SIGNATORY VERSUS SATISH KUMAR GUPTA & OTHERS [2019 (11) TMI 731 - SUPREME COURT] the Hon’ble Apex Court clearly laid down that the Adjudicating Authority would not have power to modify the Resolution Plan which the CoC in their commercial wisdom have approved.
In view of the discussions and the law thus settled, the instant Resolution Plan meets the requirements of Section 30(2) of the Code and Regulations 37, 38, 38(1A) and 39 (4) of the Regulations. The Resolution Plan is not in contravention of any of the provisions of Section 29A of the Code and is in accordance with law - The Resolution Plan submitted by Mr. Rakesh Ranjan jointly with M/s Equilibrated Venture CFLOW Private Limited is hereby approved.
Application allowed.
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2022 (6) TMI 920 - 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 - pendency of suit before the Small Cause Court with respect to the same claim - HELD THAT:- The Operational Creditor had given the premises on lease to the Corporate Debtor vide Leave and License Agreement dated 20.06.2014 for period of 55 months starting from 01.07.2014 to 30.12.2018. The lease was terminated by the Operational Creditor vide its E-mail dated 19.09.2018. The Operational Creditor raised Invoices dated 16.11.2018 and dated 08.01.2019 - The Corporate Debtor contended that there is no Operational Debt as the dues are arising out of non-payment of lease rent.
The Operational Creditor stated that the Operational Creditor raised invoice for the use of additional car parking space even after the termination of the Leave and License Agreement. This Bench is of view that the provision for use of additional space by the Corporate Debtor was not incorporated in the Leave and License Agreement and hence the Operational Creditor cannot raise invoice against the Corporate Debtor for the use of additional space without the consent of the Corporate Debtor.
Further, it was observed by this Bench that the L.D. Suit is pending before the Small Cause Court with respect to the same claim. The Corporate Debtor has filed Suit for Permanent Injunction and raised issues with respect to claim prior to issue of Demand Notice by the Operational Creditor. The Corporate Debtor has replied to the said Demand Notice denying and disputing the claims of the Operational Creditor. Hence, this Bench is of the view that the claim of the Operational Creditor cannot be admitted being there is pre-existing dispute between the Corporate Debtor and the Operational Creditor.
Petition dismissed.
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2022 (6) TMI 919 - 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 - date of default - HELD THAT:- The Corporate Debtor in its Affidavit in Reply dated 22.11.2021 stated that the Financial Creditor had not provided any documentary evidence which would prove that the initial default i.e. ‘Date of Default’ had occurred on 01.01.2020.
On perusal of the documents submitted by the Applicant Financial Creditor, it is clear that there exists a financial debt and the debt is in default. However, the Bench is of the view that the date of default is 01.10.2020 as mentioned in the NESL Report as annexed by the Financial Creditor himself at p.502 as Annexure N1- N8 of the petition to show the record of default available with the Information Utility as on 01.10.2020 and not 01.01.2020 as mentioned by the Financial Creditor in Part IV of the petition. This petition, therefore, falls within the period of enforceability of Sec. 10A of IBC, 2016. The proviso to the Section 10A of the IBC prescribes that no insolvency proceedings can ever be instituted against any entity whatsoever for the default caused/committed in the period between 25.03.2020 to 24.03.2021. This petition is therefore liable to be dismissed.
This Bench is of the view that because of insertion of Sec 10A in IBC, this case is clearly attracted by the provisions of Sec 10A as the date of default in this case is 01/10/2020. As per Sec 10A, no IBC proceedings can be initiated against the Corporate Debtor for the default which has occurred between the period from 25/03/2020 till 24/03/2021, keeping in view of the extended period of Sec 10A, the application filed by the Operational Creditor against the Corporate Debtor cannot succeed and is hereby dismissed.
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2022 (6) TMI 918 - NATIONAL COMPANY LAW TRIBUNAL , ALLAHABAD BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - Financial Debt or not - Dishonor of Cheque - time limitation - HELD THAT:- Admittedly, Mrs. Maya Goel has given the loan amount in the Financial Year 2011-12, 2012-13 and 2013-14 whereas Mr. N.C. Goel has given loan in the Financial Year 2011-12, 2013-14 and 2015-16. In the absence of any documentation, the date of default cannot be established. The date of default can only be calculated when the tenure of the loan is established, or when there is a demand for repayment. In the present case there is nothing to establish this.
In summary jurisdiction, without adequate documentation, it is difficult to establish the purpose for which the money was lent and accepted. It is also not possible to establish whether there was any interest required to be paid. The time value of money is an important factor to be considered in order to establish whether this is a financial debt. Ex facie, this appears to be a petition which has been filed for recovery of money and not for resolution of the corporate debtor. The Insolvency & Bankruptcy Code, 2016, should not be allowed to be used as an easy way of recovery of money.
The present petition cannot be admitted under section 7 of the Code, and the same shall stand dismissed. - Petition dismissed.
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2022 (6) TMI 917 - NATIONAL COMPANY LAW TRIBUNAL , ALLAHABAD 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 - HELD THAT:- On perusal of clause 35, there are no hesitation in holding that even on this basis, no legal obligation can be said to have arisen on the part of the respondent to repay the loan, which was taken by the vendor from the applicants herein. This Clause simply provides that confirming party is to receive the sale consideration from the vendor and vendor has also confirmed that he has received the payment from the confirming party (Applicant herein) and who have also said that they had no objection as regard to this sale deed. From the perusal of other clauses and specifically schedule of payment, it is noted that the four cheques of sale consideration were handed over to the vendor who in turn was liable to give the same to the applicant. In our view, in case of any failure by the vendor to do so, also does not result into a situation whereby such liability is to be met by the respondent herein.
As regard the amount of ₹ 20,00,000/- being given by the Financial Creditors to the respondent herein, it is noted that it has been given on 29.04.2017 just a day prior to the execution of sale deed dated 1st May, 2017, which fact lends credence to the claims made by the respondent that such money was given to the respondent to execute the sale deed - the Financial Creditors have not been able to controvert the claim made on behalf of the respondent that such money was given as assurance money nor any documentary evidence has been produced to show that this money was in fact a loan, which was to be returned by the respondent. Further, in the absence of any agreement to this effect as well as no recall notice or other documentary evidence, we are of the view that even the facts of the amount being due and payable, cannot be ascertained, hence, there arises no question of default.
In the present case, there is no relationship of Financial Creditors and Corporate Debtor between the applicants herein and the respondent. We further hold that there is no transaction of the nature of financial debt between the parties within the meaning of provision Section 5(8) of IBC, 2016 - Petition dismissed.
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2022 (6) TMI 873 - 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 corporate debtor in its reply letter dated 14.05.2016 to the legal notice of the Petitioner dated 22.04.2016, the Respondent has admitted that the claims in furtherance of the debit notice of Rs.15,60,326.94 was revised and reduced to Rs.10,43,923.20, this by itself is also an admission of liability by the Corporate Debtor. However, the Corporate Debtor has contended that the payment thereof is subject to the condition of the Petitioner returning the defective spare parts to the Corporate Debtor. In this regard, Petitioner has already submitted that all the defective goods lying with them were returned to the Corporate Debtor on 21.10.2015 by courier, and the same was communicated to the Corporate Debtor vide email dated 24.10.2015. Moreover, the Petitioner has filed the copy of the said e-mail. Hence the Petitioner has proved the ‘existence of debt’ and ‘default’ on the part of the Corporate Debtor.
The Petitioner has filed the present Petition before this Tribunal on 22.06.2018 and as such the Notification effected in increasing the threshold limit from Rupees One Lakh to Rupees One Crore as on and from 24.03.2020 does not apply to the present case. Under the said circumstances, since the debt and default on the part of the Corporate Debtor being proved and also by looking at the consent given by an Insolvency Professional, this petition is hereby admitted.
Petition admitted - moratorium declared.
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2022 (6) TMI 872 - NATIONAL COMPANY LAW TRIBUNAL , MUMBAI BENCH
Approval of resolution plan - allegation of non consideration of undervalued transaction - reversal of effects of such avoidance transactions - rejection of Resolution Plan approved by Committee of Creditors - disqualification of Resolution Applicant i.e. Respondent no.1 and 2 u/s 29A of the Code - directions to pass order u/s 47 of the Code requiring Board to initiate disciplinary proceedings against Respondent no. 3 - HELD THAT:- This bench is of the view that the Corporate Debtor is a registered MSME and the provisions of Section 240 A of the Code provide an exemption to the Successful Resolution Applicant from compliance with the provisions of Section 29A(c) and (h) of the Code. So, the resolution plan submitted by the resolution applicant is very much under the provisions of Code.
Moreover, a clause of personal guarantee in the resolution plan will not extinguish the right of creditors to proceed against personal guarantors. Creditors are always at liberty to proceed against personal guarantor separately. The application under section 66 is to be filed only by the resolution professional or the liquidator. Moreover, the applicant herein is not a resolution professional and is only a dissenting financial creditor and in this capacity the Applicant has no right to file the present application.
In any case, the present application is liable to be dismissed on the ground of maintainability also, since the transactions which were mentioned in the application under section 47 and section 66 does not qualify the criteria of undervalued or fraudulent transaction - Application dismissed.
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2022 (6) TMI 871 - 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 - time limitation - HELD THAT:- The Date of default from the due date of Invoice fell on 22.12.2014 and the Petition was filed on 01.08.2018. But it is seen from the correspondences as exchanged between the parties that the Corporate Debtor had acknowledged in its emails dated 27.03.2015, 10.09.2015, 24.09.2015 and 18.11.2015 wherein the Corporate Debtor stated that the financial condition of the Company is unstable, and they were unable to help immediately. The Corporate Debtor Company were under the process of arranging fund as they were facing huge cash flow problems - Hence, it is evident that the Corporate Debtor Company were not in a position to pay the debt and also any contentions of the Corporate Debtor were not raised/replied to the Demand Notice sent by the Operational Creditor to the Corporate Debtor dated 17.05.2018.
The Operational Creditor has successfully demonstrated and proved the debt and default in this case and has also proved that there is absolutely no reason for the Corporate Debtor to hold on to the payment of the invoices.
Petition admitted - moratorium declared.
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2022 (6) TMI 870 - 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 - HELD THAT:- Although from the petition, pleadings made and arguments extended by the Counsel of both the sides, it is observed that the defaults in Loan account under Contract No.179643 at Serial No 1 and 2 are dated 05.02.2020 and 05.03.2020 and the remaining defaults were on or after 05.04.2020 which comes under section 10A of the IBC 2016 which cannot be considered as default. Hence, the bench is of considered view that the actual default made by the Corporate Debtor is Rs.1,12,73,387 along with interest.Therefore, it is a fit case for Admission of the Corporate Debtor into Insolvency, because Debt and Default is established and the amount of Debt is more than threshold limit i.e. Rupees One Crore. The application is complete and has been filed under the proper form. Hence, the Application filed by the Financial Creditor is hereby deserves to be admitted.
Petition admitted - moratorium declared.
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2022 (6) TMI 869 - NATIONAL COMPANY LAW TRIBUNAL , KOLKATA BENCH
Requirement of having custody, control and possession of the Unit in order to discharge duties as the Liquidator - HELD THAT:- The respondents in this matter are not represented in spite of notice having been served on the respondents. It is very important to notice here that the Liquidator, is an Officer of the Court appointed under the Code for the purpose of performing his statutory duties under section 35 of the Code. The Liquidator has the power to take into custody and control all the assets, property, effects and actionable claims of the Corporate Debtor and have them evaluated, and to take all such measures to protect and preserve the assets and properties of the Corporate Debtor as he considers necessary. The statutory duties assigned to the Liquidator under the Code cannot be performed if the other law enforcing authorities do not cooperate with the Liquidator and provide him necessary aid and assistance, when it is required to enable him to perform his duties as per law. In this matter the timely assistance has not been provided by Respondent Nos. 2 and 3 to have the custody and possession of the immovable and moveable properties of the Durgapur Unit of the Corporate Debtor from Respondent No. 1.
Respondent No. 1 is directed to immediately hand over the Durgapur Unit of the Corporate Debtor situated at Banskopa, L&T More, NH-2, Durgapur, under Gopalpur Gram Panchayat, Police Station-Kanksa, District-Paschim Burdwan, Pin-713212, which is being illegally occupied by Respondent No. 1 including all the moveable lying therein that belong to the Corporate Debtor. If there is any disobedience or reluctance or resistance on the part of Respondent No. 1 in handing over the said premises to the applicant as directed herein, Respondent No. 2 and 3 are directed to provide all types of assistance and protection to the applicant to enable him to enter into and take custody, control and possession of the said unit and discharge his duties as the Liquidator and carry out the orders passed by this Adjudicating Authority.
Application disposed off.
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2022 (6) TMI 868 - NATIONAL COMPANY LAW TRIBUNAL , CHENNAI BENCH
Reconstruction of documents - original property documents lost - seeking issuance of certified copies of documents - HELD THAT:- It is a fact borne on record that the 1st Respondent has filed an Application under section 19(5) of the Code and this Tribunal has also issued directions to the Respondents therein to comply with its order. It is also on record that the 1st Respondent could get only a limited information from the erstwhile promoter/Directors. In the present case it could not happen due to the non-cooperation of the erstwhile promoter/directors despite of orders issued by this Tribunal. In the absence of the original title deeds, there is not other option except reconstruct the documents including the property documents.
The 2nd to 8th Respondents are directed to issue certified copies of the documents mentioned in the respective Schedules attached with the Application filed by the Applicants immediately once the application for the same is filed with them. The said documents would be treated as 'Original' documents for all future purposes and once the 1st Respondent get all the documents from the 2nd to 8th Respondents, he will hand over the same to the 1st Applicant.
Application allowed.
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2022 (6) TMI 867 - NATIONAL COMPANY LAW TRIBUNAL , KOLKATA BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - complaint under section 138 of the N.I.Act, 1881 pending between the parties - pre-existing disputes pending between the parties - HELD THAT:- It is clear that in reply to the demand notice, the Corporate Debtor had referred to some disputes pending before the Criminal Court, Chennai and had further stated that the letters and correspondence will be sent to the Operational Creditor shortly. In continuation thereof, the Corporate Debtor has further referred to those disputes between the parties in its reply affidavit also and during the course of arguments also, those very documents have been placed before the Bench.
Since the complaint under section 138 of the N.I.Act, 1881 had been pending between the parties and certain pre-existing disputes had been pending between the parties, this petition will have to be rejected.
Petition dismissed.
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