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Insolvency and Bankruptcy - Case Laws
Showing 1 to 20 of 86 Records
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2020 (11) TMI 1108
Condonation of delay of 51 days in filing appeal - sufficient cause for delay provided or not - HELD THAT:- Section 62 of the Insolvency and Bankruptcy Code 2016 provides a period of forty five days from the date of the receipt of an order of the National Company Law Appellate Tribunal for filing an appeal before this Court. Under sub-section (2), this Court is empowered to condone a delay of a further period not exceeding fifteen days for sufficient cause.
The appeal is barred by limitation since the delay of 51 days is beyond the period of delay which can be condoned under sub-section (2) of Section 62 - the appeal is dismissed on the ground that it is barred by limitation.
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2020 (11) TMI 1077
Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- The Operational Creditor has produced on record all the invoices raised against the Corporate Debtor. The Operational Creditor stated that it did not receive outstanding amount from the Corporate Debtor. This fact remains unchallenged on record against the Corporate Debtor - The evidence on record shows that the Corporate Debtor has received the notice under Section 8 of the I.B. Code. The Corporate Debtor neither replied the notice pointing out any pre-existing dispute nor made payment of debt amount.
The Operational Creditor did not suggest the name of any Resolution Professional for the appointment of Interim Resolution Professional ("IRP") and left the matter to the discretion to this Adjudicating Authority.
The Corporate Debtor in Corporate Insolvency Resolution Process under Section 9 of the I.B. Code is admitted - moratorium declared.
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2020 (11) TMI 1073
Effect of moratorium on passing of Liquidation order - HELD THAT:- It is not in dispute that impugned order has been passed subsequent to the order of liquidation being passed by this Adjudicating Authority in the case of Corporate Debtor. The legal position is that on passing of the order of liquidation, the moratorium placed under Section 14 of IBC, 2016 comes to an end. Further, as per provision of Section 33(5) of IBC, 2016, the legal proceedings can be continued against the Corporate Debtor during the course of liquidation.
There are no merit in this application. The same is, therefore, dismissed.
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2020 (11) TMI 1067
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:- 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. On perusal of record, it is held that there is existence of default and that the application under Section 7(2) of the Code is also complete in all respect - In the instant case, the documents produced by the Financial Creditor clearly establish the ‘debt’. Section 13 (2) Notice issued by the Financial Creditor clearly indicates that entire debt was recalled. There is a default on the part of the Corporate Debtor in payment of the ‘financial debt’.
There is no dispute in the case that the petitioner is the financial creditor. The application is also furnished in the prescribed form - 1 of the Rules and the prescribed fee has also been paid. Along with the application, the applicant has proposed the name of the Interim Resolution Professional namely Mr. Naresh Sheth.
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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2020 (11) TMI 1065
Maintainability of petition - prosecution of the case or not - HELD THAT:- On perusal of the record, it is found that on 15.07.2020 and on 18.08.2020 the learned lawyer for the petitioner was found absent and, thereafter, on 29.09.2020, he has shown his appearance. Today also the petitioner is found absent.
It appears that the petitioner is not interested in prosecuting the case - the instant IB Petition is dismissed for non-prosecution.
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2020 (11) TMI 1063
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - time limitation - Article 137 of the Limitation Act, 1963 - HELD THAT:- The ground agitated for assailing the impugned order is founded on plea of extension of limitation. The date of default being 1st July, 2001, the cause of action would not shift and therefore, limitation for initiating Corporate Insolvency Resolution Process would commence from the date of default - Subsequent restructuring of debt vide negotiated settlement which admittedly aborted and failed, would not give a fresh cause of action to Appellant. Such plea would not sustain even if the limitation is computed from the date of failure of such negotiated settlement as the application is still hit by limitation.
The Appellant submits that there is continuing cause of action. This is a misplaced argument as once the date of default is there which provides cause of action to the Appellant, limitation begins to run from such date.
There are no merits in the appeal - appeal dismissed.
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2020 (11) TMI 1062
Realization of claims against the CD which has already taken over by the Respondent No.2 - section 60 (5) of IBC, 2016 read with Rule 11 of the National Company Law Tribunals Rules, 2016 - HELD THAT:- The present Applicant being an Operational Creditor has filed this application praying for setting aside the Resolution Plan approved by this Adjudication Authority on 07.12.2018 or to direct the Resolution Professional to pay its claim of Rs.1,21,86,626/- as the Applicant could not know about admission of the petition/CIRP/Approval of Resolution Plan because the R.P. had published notice inviting the claim at Registered and Corporate Office Areas only i.e. Guwahati and Kolkata. Resolution Professional should have also published the notice in the Newspapers in the city of Mumbai and Nasik as in these places the CD used to conduct business and also the Registered office of the OC (Mumbai) - this Applicant/OC had supplied materials during the period from 03.02.2010 till 28.08.2010 and the last payment was received by the Applicant on 11.12.2010.
Hon’ble Supreme Court in the matter of COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LIMITED THROUGH AUTHORISED SIGNATORY VERSUS SATISH KUMAR GUPTA & OTHERS [2019 (11) TMI 731 - SUPREME COURT] has held that a Successful Resolution Applicant cannot suddenly be faced with “undecided” claims after the resolution plan submitted by the Resolution Applicant has been accepted as this would amount to a hydra head popping up which would throw into uncertainty amounts payable by the successful resolution applicant. All claims must be submitted to and decided by the resolution professional so that a prospective resolution applicant knows exactly what has to be paid in order that it may then take over and run the business of the CD.
The prayer of the Applicant/OC for setting aside the Resolution Plan approved by this Adjudication Authority on 07.12.2018 or to direct the Resolution Professional to pay its claim of Rs.1,21,86,626/- is rejected - Application disposed off.
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2020 (11) TMI 1056
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - Financial Debt - existence of debt and dispute or not - Applicability of section 18 and section 19 of Limitation Act - HELD THAT:- Since, much reliance has been placed by the Ld. Counsel for the petitioner on the reply filed by the Corporate Debtor in pursuant to the legal notice issued under Section 138 of the NI Act, therefore, it is deemed fit to consider this document at first and on going through the reply filed by the Corporate Debtor in response to the legal notice issued under Section 138 of the NI Act and it is noticed that at page 376, it is mentioned that Corporate Debtor had proposed for settlement of the account and on the basis of that Ld. counsel for the petitioner submitted that the Corporate Debtor has acknowledged the debt by sending the reply to the Legal Notice issued under Section 138 of the NI Act and it is also noticed that in its reply to the Legal Notice issued under Section 138 of the NI Act, in para 6 of the reply, which is at page 374 of paper book, it is mentioned that undated cheques were handed over to the petitioner and that is the reasons the date, when the cheques were handed over to the petitioner are not disclosed in the notice.
Apart from that, in the case of Yogesh Kumar Jaswantlal Thakkar Vs. India Overseas Bank and Ors [2020 (9) TMI 582 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] passed by Hon’ble NCLAT, where it was held that Section 19 of the Limitation Act is not applicable so far the IBC is concerned.
Applicability of Section 18 of the Limitation Act - it is mentioned in the reply dated 18.03.2017 that he is ready to settle the statement of accounts, which amounts to the acknowledgement of debt - HELD THAT:- In part-IV, the date of default is not mentioned. Since the last agreement was executed on 30.06.2013, therefore, the payments on the basis of that agreement must be made within 3 years from the date of last agreement, which was executed on 30.06.2013 and acknowledgement also must have been made within that period.
Even if the contention of the petitioner is accepted that reply which was given in response to the legal notice under Section 138 of NI Act will be treated as as an acknowledgement of debt, the same has also been made after three years from the date of execution of last ‘agreement, whereas in view of Section 18 of the Limitation Act, the acknowledgement must be made within the period of limitation. hence, the contention of the Ld. Counsel for the petitioner that the present application is within time, cannot be accepted.
Since the present application is barred by limitation, therefore, the notice need not be issued upon the respondent rather same is liable to be Dismissed - application dismissed.
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2020 (11) TMI 1048
Seeking direction to the suspended Board of Directors for providing the record and other information of the Corporate Debtor - application filed under Section 19(2) of Companies Act - HELD THAT:- On one pretext or the other, there is no compliance with the order of this court which makes it clear that the Suspended Board of Directors have not maintained the record of the CD. In other words, they have failed to perform their fiduciary duties in maintaining the record of the Corporate Debtor. Whereas they are duty bound to maintain the record of the CD for a period of not less than 8 years as mandated under the provisions of Section 128 (5) of the Companies Act, 2013. The Directors namely Mr. Ashish Chaturvedi and Mr. Sanjay Kapoor have grossly violated the provisions of Section 128 (5) of the Companies Act, 2013 for which the punishment is provided under Section 128 (6) of Companies Act, 2013. The only option before this Authority/Tribunal is to invoke the provision of Section 128 (6) of the Companies Act, 2013 and impose penalty as prescribed.
Looking to the conduct of the Suspended Board of Directors, penalty of ₹ 5 Lakhs on each viz., Mr. Ashish Chaturvedi and Mr. Sanjay Kapoor is levied - total ten lakhs shall be deposited to the Accounts of the Government of India, Ministry of Corporate Affairs, within a period of four weeks from the date of passing of this order and thereafter compliance reports shall be submitted by the counsel for Respondent No. 1 and 2 to the Registry - application disposed off.
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2020 (11) TMI 1047
Whether the money i.e. ₹ 32 lakhs has been withdrawn from the account of the Corporate Debtor viz., M/S. A to Z Barter Private Limited, maintained at I-IDFC Bank, Branch Mayapuri? - HELD THAT:- In spite of the present application for depositing the amount withdrawn to the accounts of the CD, the respondents have not bothered to deposit an amount of ₹ 32 lakhs approximately.
The respondents are directed to deposit an amount of ₹ 32 lakhs along with interest @ 12 % per annum from the date of the withdrawal and deposit the total amount to the accounts of the Corporate Debtor being maintained by the Resolution Professional within a period of 21 days from the date of this order - application disposed off.
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2020 (11) TMI 1046
Seeking dismissal of approved Resolution Plan, which was approved on 5th October, 2020 - HELD THAT:- It is noted that after the approval of the Resolution Plan, this Authority has no power to dismiss the approved Resolution Plan. The only course open to the Applicant is to file an Appeal under Section 61 of the Code.
Application dismissed.
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2020 (11) TMI 1042
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - issuance of demand notice - pre-requisite under section 8 of the Insolvency & Bankruptcy Code, 2016 for filing the petition under section 9 - HELD THAT:- The demand notice which is a pre-requisite under section 8 of the Insolvency & Bankruptcy Code, 2016 for filing the petition under section 9, issued by the applicant on 07.10.2019 is signed and issued by an unidentified person on behalf of the applicant company without mentioning designation or full name of the person who has signed it.
On perusal of the records it is found that vide Board Resolution dated 15.11.2019 one Mr. Sudeep Pramanik, Director - Human Resource has been given authority to initiate CIRP proceedings against the corporate debtor. On perusal of the records it is also found that the authority letter/Board Resolution empowering Mr. Sudeep Pramanik (page 13) to initiate action under section 9 of the I & B Code, is dated 15.11.2019. While comparing with the signature appearing in the demand notice and the petition (form 5) it is found that the signatory in both the documents are different. Even assuming that the said demand notice dated 07.10.2019 was signed and issued by Mr. Sudeep Pramanik, it is evident from the records that at the time of issuing the demand notice dated 07.10.2019, Mr. Sudeep Pramanik, Director of the company had no authority to issue demand notice and the person who has signed the demand notice is somebody else who had no authority to issue such notice.
The petition is bad in the eye of law and not maintainable on the very reason that the demand notice is/was issued by an unidentified person who had no authority to issue demand notice and initiate CIRP proceedings against the corporate debtor.
Petition dismissed.
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2020 (11) TMI 1034
Seeking recall of the admission order on the ground that the claim is barred by limitation - HELD THAT:- If at all any limitation point is an issue, the applicant should have argued at threshold, since limitation issue is a mixed question of fact and law, this issue should have been raised at the time of admission or at least in the appeal filed before Hon’ble NCLAT. Moreover, matter is now pending for completion of liquidation of the company.
Now he cannot ask for recall of admission order on the ground of limitation, therefore this recall application is hereby dismissed as misconceived.
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2020 (11) TMI 1026
Rejection of claim of creditors - applicants entered into agreements with the Corporate Debtor or paid money to the Corporate Debtor for allotment of flats or not - Financial Creditors or not - HELD THAT:- Now, when the resolution plan was approved by the CoC on 30.08.2020, the RP says, perhaps having realized in case he remained as financial creditor in class, he would not get on par with independent financial creditors, the Applicant therefore changed his mind and has filed Form-C application on 03.09.2020, i.e., after plan was approved by the CoC.
For this Applicant himself filed Form-CA application and the same being admitted by the RP without any change, thereafter having this Applicant kept quiet for more than seven months, now he cannot subsequently, that too after plan was approved by the CoC, change his mind and ask alteration of his status as separate financial creditor - Application dismissed.
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2020 (11) TMI 1025
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:- On perusal of the record it is found that the demand notice dated 27.06.2019 is issued by advocate Mr. Avneesh Garg on behalf of the operational creditor (page 26-35). The applicant has not put on record any document authorising Mr. Avneesh Garg, advocate to issue demand notice. Thus, the demand notice is issued by the advocate without any authority. Moreover, the demand notice is not supported by documents like copy of invoices etc. - On perusal of the records it is also found that the respondent has produced a copy of letter/email, raising a dispute regarding quality of the goods supplied by the applicant. From the above it is evident that much before issuance of demand notice dated 27.06.2019, there is/was a dispute between the parties regarding quality of the goods.
In the instant application, the material placed on record by both the parties clearly establish that there is/was dispute regarding quality of the goods supplied to the respondent by the Applicant. That apart, the advocate who has issued the demand notice is/was not authorised to issue the demand notice - Petition dismissed.
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2020 (11) TMI 1023
Seeking approval of Resolution Plan - section 30(6) read with section 31(1) of I&B Code - HELD THAT:- It is observed that the applicant who is the resolution professional as well as the CoC wants to continue with the same valuer, i. e., GAA Advisory who is well aware of the facts of the case and has done valuation of the corporate debtor earlier. On the other hand, the Corporation Bank does not have faith on the CoC, the RP as well as the GAA Advisory and therefore, wants this Tribunal to appoint a fresh valuer for conducting the valuation process.
The Corporation Bank holds approximately only about 7 per cent. of the share in the CoC and has time and again raised objections which has resulted in delay in the process of CIRP. As mentioned by the resolution professional, the corporate debtor has already crossed 550 days of CIRP and is incurring huge expenditure.
With a view to expedite the process, as the GAA Advisors are already aware of the position of the corporate debtor, it is advisable to continue with the same valuer. Also, majority of the CoC, under its commercial wisdom has agreed for the appointment of GAA Advisory - Application allowed.
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2020 (11) TMI 1022
Seeking order directing the resolution professional to arrange to hand over vacant possession of the leased out premises to the applicant - direction for payment of the lease rental payment from the month of August, 2019 till the period when the properties under lease to the corporate debtor are handed over to the applicant - HELD THAT:- The respondent/IRP in the present case, has admitted the claim of the applicant towards the rental arrears for the period from April 1, 2014 till August 1, 2019 to the tune of ₹ 66,79,260. The applicant in the present application is seeking a direction from this Tribunal to direct the respondent to pay the rent for the CIRP period, during which the respondent is in possession of the premises. Learned counsel for the respondent tried to put forth an argument that the lease deed was not renewed and as such they are not liable to pay any rent to the applicant. The said argument of learned counsel for the respondent is not sustainable in view of the fact that the respondent herself has admitted the claim of the applicant to the tune of ₹ 66,79,260 for the period from April 1, 2014 till August 1, 2019 by relying on the same lease agreement entered into between the parties and as such for the purpose of defeating the claim of the applicant, the respondent cannot take a different stand. Thus the respondent cannot approbate and reprobate at the same time in relation to the said issue.
The corporate debtor itself has not paid the rental dues to the applicant since the month of June 2014. Even though the corporate debtor has not paid the rent from the month of June 2014, the respondent herself, as already stated, has admitted the rental arrears to the tune of ₹ 66,79,260 for the period from April 1, 2014 till August 1, 2019 and hence non-payment of the rent by the corporate debtor for the period from June 2014 would not absolve the respondent/RP to pay the rent for the CIRP period - this Tribunal is unable to comprehend as to how the respondent/RP who is in possession of the premises is not willing to pay the rent during the CIRP period.
The respondent/RP shall vacate and hand over the vacant possession of the land and building at Chennivakkam Village, Ponneri Taluk, Tiruvallur District, to the applicant within 30 days starting from November 5, 2020 - Application disposed off.
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2020 (11) TMI 1019
Maintainability of application - Initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - maintainability of simultaneous proceedings under SARFAESI Act and IBC - existence of debt and dispute or not - HELD THAT:- The identical issue fell for consideration before the Hon'ble NCLAT in the matter of RAKESH KUMAR GUPTA VERSUS MAHESH BANSAL [2020 (6) TMI 688 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] where it was held that The pendency of actions under the SARFAESI Act or actions under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 does not create obstruction for filling an Application under Section 7 of Insolvency and Bankruptcy Code 2016, specially in view of Section 238 of IBC.
Thus, it is now trite that pendency of actions under the SARFAESI Act by the Financial Creditor is not a bar for filling an Application under Section 7 of IBC, 2016, especially in view of Section 238 of IBC. Further, the proceedings under IBC, 2016 cannot be said to be a parallel proceedings since the Application under Section 7 of IBC, 2016 is filed to bring about a Resolution for the Corporate Debtor, on the other hand the proceedings under SARFAESI Act, 2002 is for recovery of the amount which is due and payable to the Financial Creditor.
Existence of debt and dispute or not - amount of default involved - HELD THAT:- There is a debt and default on the part of the Corporate Debtor and the Corporate Debtor is unable to repay its dues to the Financial Creditor - It is also seen that the present Application has been filed before this Tribunal on 17.06.2020 and as such the Notification issued by the Central Government in this regard by increasing threshold limit from ₹ 1 Lakh to ₹ 1 Crore would not apply to the facts and circumstances of the present case, as the amount claimed to be in default is already more than ₹ 1 Crore.
It is also noted that the Central government by way of an amendment inserted in Section 10A of I&B Code, 2016 wherein the default in respect of the dues arising from the period 25.03.2020 till 25.09.2020, (now extended upto 25.12.2020) has been excluded and as such in the present case from Part-IV of the Application it is seen that the default has occurred much prior to 25.03.2020 and hence Section 10A of I&B Code, 2016 also would not come to the aid of the Corporate Debtor - this Application as filed by the Applicant-Financial Creditor is required to be admitted under Section 7 (5) of the I&B Code, 2016.
Application admitted - moratorium declared.
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2020 (11) TMI 1003
Seeking Replacement of IRP - It is submitted that the CoC on 26 October 2020 has resolve to replace the IRP Mr. Nazim Khan with Ms. Deepika Prasad - HELD THAT:- The resolution passed for replacing the IRP has been passed with 87% voting share. Therefore, Ms. Deepika Prasad is appointed as RP and Mr. Nazim Khan is hereby relief from the assignment with the direction to hand over the record and assets of CD within 10 working days to Ms. Deepika Prasad against proper receipts.
The Proxy Counsel for Mr. Nazim Khan is present but has no information about the detail of remuneration and out of pocket expenses, which is to be paid to the IRP. Therefore, the CoC is directed to work out the remuneration and other expenses, if any, and pay the same to the IRP viz., Mr. Nazim Khan within 2 weeks.
Application allowed.
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2020 (11) TMI 998
Approval of scheme of amalgamation - section 230 to 232 of the Companies Act, 2013 - HELD THAT:- The meeting of Equity Shareholders and Unsecured Creditors were dispensed with in view of the consents given by all the Equity Shareholders and Unsecured Creditors of the Petitioner Companies - Directions regarding issuance of notices, issued - application allowed.
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