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Insolvency and Bankruptcy - Case Laws
Showing 141 to 147 of 147 Records
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2019 (12) TMI 187 - NATIONAL COMPANY LAW TRIBUNAL, ALLAHABAD
Time Limitation - initiation of CIRP against Corporate Debtor - whether the claim of the applicant/petitioner is within limitation or barred by limitation? - HELD THAT:- In the case in hand, the applicant claims the amount from September, 2014 to May, 2015, therefore, in view of Article 137 of Limitation Act, the person is required to file application within three years, when right accrues to file the claim, but the applicant has not claimed the amount within three years from 30.09.2015, i.e. the date of default and filed this petition on 15.05.2019, which is much after the three years from the date of default.
In view of the provision of Article 137 of Limitation Act, this Adjudicating Authority is of the considered view, that the present claim of the applicant/petitioner is barred by Article 137 of Limitation Act - the present petition filed u/s 9 is barred by limitation, thus this petition is not liable to be admitted - the prayer to initiate proceedings under Section 9, read with Sections 13, 14 & 33 and other applicable provisions of the Insolvency & Bankruptcy Code, 2016, against the Corporate Debtor company by the applicant, is hereby rejected - petition dismissed.
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2019 (12) TMI 167 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Maintainability of application - initiation of CIRP - absence of bar under Section 11 of the ‘I&B Code’ - Corporate Debtor failed to make repayment - existence of debt and dispute or not - Section 7 of the ‘I&B Code’ - HELD THAT:- Similar issue fell for consideration before the Hon’ble Supreme Court in Forech India Ltd. v. Edelweiss Assets Reconstruction Co. Ltd. [2019 (1) TMI 1442 - SUPREME COURT]. In the said case, the Hon’ble Supreme Court noticed that the winding up petition was filed against the ‘Corporate Debtor’ (Company) against which application under Section 7 of the ‘I&B Code’ was filed subsequently and observed that This Section is of limited application and only bars a corporate debtor from initiating a petition under Section 10 of the Code in respect of whom a liquidation order has been made. From a reading of this Section, it does not follow that until a liquidation order has been made against the corporate debtor, an Insolvency Petition may be filed under Section 7 or Section 9 as the case may be, as has been held by the Appellate Tribunal.
The Hon’ble Supreme Court further held that under Section 11 only the ‘Corporate Debtor’ is not eligible to file petition under Chapter II of the ‘I&B Code’.
The application under Section 7 was maintainable and therefore, no interference is called for - Appeal dismissed.
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2019 (12) TMI 129 - NATIONAL COMPANY LAW TRIBUNAL, HYDERABAD
Permission to withdraw the Application which is admitted u/s 7 of the IBC Code, 2016 - Sec 12A of I&B Code - HELD THAT:- It is clear from section 12A of the Code that the Adjudicating Authority may allow the withdrawal of application admitted under section 7 or section 9 or section 10 on an application filed by the applicant with the approval of 90% voting share of the Committee of Creditors. Thus it is clear if 90% voting share of Committee of Creditors approves application for withdrawal then Adjudicating Authority to allow for withdrawing the application filed under section 7 or section 9 or section 10 of the Code.
Present application is filed by RP before this Tribunal for approval of the withdrawal of application. It is clear that Regulation 30A of IBC (Corporate Insolvency Resolution Process) regulation 2016, are complied - By virtue of provisions of sec 12A, Tribunal is empowered to approve the application for withdrawal.
The application filed by RP is to be allowed and moratorium order passed under section 14 shall cease to exist.
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2019 (12) TMI 128 - NATIONAL COMPANY LAW TRIBUNAL, CHENNAI
Maintainability of application - initiation of CIRP - default committed by the Corporate Debtor in repaying amount alongwith interest - existence of debt and default or not - HELD THAT:- The Corporate Debtor counsel has admitted the debt and default, whereby looking at the request of the Corporate Debtor for grant of loan, entries of the payments to the Corporate Debtor made by the Applicant through Bank Account on various dates as reflected in the above said table and the Corporate Debtor failing to repay the same, it can be said that this Applicant has proved existence of debt and default with regard to the loan of ₹ 32,00,000 given by the Applicant.
Application admitted - moratorium declared.
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2019 (12) TMI 127 - NATIONAL COMPANY LAW TRIBUNAL, KOLKATA
Maintainability of application - initiation of CIRP - issuance of El Form - debt due and payable - whether submission of El Form as per the terms stipulated in the purchase order, is a pre condition for enabling the Corporate Debtor to pay the amount in demand?
HELD THAT:- On a reference to all documents, there is a pre existent dispute as alleged by the Corporate Debtor in respect of the payment of the debt due to the Operational Creditor and therefore, this Application is liable to be rejected.
Application rejected.
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2019 (12) TMI 126 - NATIONAL COMPANY LAW TRIBUNAL, AHMEDABAD
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of outstanding amount - existence of dispute or not - HELD THAT:- In the instant application, from the material placed on record by the Applicant, this Authority is satisfied that the Corporate Debtor committed default in paying the financial debt to the Applicant and the respondent company has acknowledged the debt by way of affidavit - In the instant case, the documents produced by the Financial Creditor clearly establish the 'debt' and there is default on the part of the Corporate Debtor in payment of the 'financial debt'.
There is existence of default and that the application under Section 7(2) of the Code is also complete in all respect - the petitioner/financial creditor having fulfilled all the requirements of Section 7 of the Code, the instant petition deserves to be admitted.
Petition admitted - moratorium declared.
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2019 (12) TMI 52 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI
Disposal of the uncleared cargo by way of auction - Right of Customs Department - Company under Insolvency Process (CIRP) - Corporate Debtor - It is submitted that the ‘Corporate Debtor’s’ ownership rights in the imported goods have been relinquished by operation of law contained in Section 48 of the ‘Customs Act, 1962’ - reliance on Section 238 of the ‘I&B Code’ - HELD THAT:- From section 48, it is clear that in case of non-clearance of the goods within 30 days or within extended period or if the title of any imported goods is relinquished after notice to the importer and with the permission of the proper officer, the goods can be sold by the Custom Authority - In the present case, the goods are in the custody of the Custom Authority, but the ownership remains with the ‘Corporate Debtor’, no step having taken for sale of goods in terms of Section 48 of the ‘Customs Act, 1962’.
The ownership rights of the machineries, in question, is of the ‘Corporate Debtor’ and not of a third party, explanation below Section 18 (1) (f) & (g) is not applicable. Therefore, the ‘Resolution Professional’ has right to take control and custody of any asset, though the Customs Authority is in possession of the same for the present - during the period of ‘Moratorium’, the assets of the ‘Corporate Debtor’ cannot be alienated, transferred or sold to a third party.
Section 48 of the ‘Customs Act, 1962’ relates to sale of goods in the custody of the Customs (machinery in question), in the manner as prescribed therein. The order of ‘Moratorium’ having passed by the Adjudicating Authority on 8th January, 2018, immediately thereafter it was not open to the Appellant, Commissioner of Customs or its authorities to issue an e-auction notice on 15th January, 2018, fixing date of auction of the goods on 19th January, 2018 - The aforesaid action on the part of the Appellant, officers of the Customs show that after their knowledge of the order of ‘Moratorium’ they intended to sell the machinery, in question, though it was lying with the Customs Authority since 13th April, 2009 / 27th April, 2009.
No interference is called for against the impugned order dated 3rd July, 2018 passed by the Adjudicating Authority prohibiting the Customs Authority from selling the assets of the ‘Corporate Debtor’ - appeal dismissed.
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