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Insolvency and Bankruptcy - Case Laws
Showing 81 to 86 of 86 Records
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2020 (11) TMI 124
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - HELD THAT:- In view of the averment made at page 11 of Reply Affidavit of the Respondent, despite the Appellant acknowledged receipt of such notes through email and shows that the credit note issued by the Appellant has not booked in QEL ledger. Operational Creditor wanted to discuss why Credit Note was issued.
Through email dated 28.11.2018 at page 301 of the Appeal Paper Book the Appellant resisted to accept Debit Note, agreed to send ledger statement for reconciliation. E-mail dated 28.11.2018 (Page 304) sent by Corporate Debtor to Operational Creditor on 28.11.2018 (i.e. before Notice under Section 8 of IBC dated 20.04.2019) clearly complained of deficiency in service by frequent trippings causing Corporate Debtor to consume power from E.B. at a higher cost. It shows that there was a pre-existing dispute between the parties - Ld. Adjudicating Authority has rightly relied on the judgment of Hon’ble Supreme Court in “Mobilox Innovations Private Ltd. Vs Kirusa Software Private Ltd.,[2017 (9) TMI 1270 - SUPREME COURT] have held that there was a pre-existing dispute between the parties and rightly dismissed the Application under Section 9 of the IBC.
The Appellant has failed to demonstrate that the impugned order suffers from any legal infirmity - Appeal dismissed.
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2020 (11) TMI 123
Extension of CIRP period for a further period of 90 days in order to complete CIRP process - Regulation 36A of IBBI (Insolvency Resolution of Corporate Persons) Regulations, 2016 - HELD THAT:- In view of the fact that there is only one Prospective Resolution Applicant before the Committee of Creditors as on date and the time to examine the resolution plan under the Code and verification of the contents of the resolution plan is limited, and also the intention of the Committee of Creditors to invite fresh Expression of Interest to enable more bonafide resolution applicants to bid for the revival of the Corporate Debtor seems to be reasonable, the request of Resolution Professional to extend the CIRP period for a further period of 90 days is justifiable.
Application allowed.
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2020 (11) TMI 122
Liquidation order - during the period of ‘CIRP’, no Resolution Plan was received - Section 60 (5) of IBC - HELD THAT:- When it is an admitted fact that during the Time limit provided under Section 12 of IBC, no Resolution Plan was received, the necessary consequence of liquidation order could not be avoided. For this, the Application was moved. Subsequently, the Appellant started claiming that there is a settlement and paid some amount. However, even that is now reported to have failed. The Appellant has not placed on record material as to who were the other claimants other than the 100% Financial Creditor namely Respondent/ARCIL during CIRP. During ‘CIRP’, once CoC has been formed, Procedure under Section 12 A of IBC would be required to be followed.
This does not appear to have been followed before the liquidation order was passed.
Appeal dismissed.
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2020 (11) TMI 121
Approval of the Resolution Plan - distribution mechanism - revision of share proportion of the resolution fund amongst the Secured Financial Creditors equally - HELD THAT:- The Adjudicating Authority was of the view that the same was not in conflict with the provisions of Section 30(2) of the I&B Code. Thus, the resolution plan in question came to be approved. As noticed elsewhere in this judgment, the claim of the Appellant as Financial Creditor has been admitted by the Resolution Professional during the Corporate Insolvency Resolution Process and the Appellant, as a constituent of the Committee of Creditors having voting right of 3.94%, has assented to the approval of the resolution plan of the Successful Resolution Applicant. After admission of Appellant’s claim by the Resolution Professional he can hardly have a grievance against the Resolution Professional. Though, the Appellant appears to have raised an objection in regard to inclusion of uninvoked Bank Guarantees in the admitted claim, its approval of the resolution plan as an assenting Financial Creditor would estop it from questioning the same resolution plan, though only in regard to distribution mechanism, which admittedly rests upon commercial wisdom of the Committee of Creditors, who set apart amount of ₹ 135 Crores as contingency fund to take care of certain eventualities which in itself was a business decision based on commercial wisdom of Committee of Creditors binding all constituents of Committee of Creditors including the Appellant.
The scope of judicial review under Section 61(3) of I&B Code being limited to grounds enumerated therein and no material irregularity having been shown to have occurred during the Corporate Insolvency Resolution Process before approval of the Resolution Plan by the Committee of Creditors, the Appellant has no case. It is not the Appellant’s grievance that he has been discriminated against as a dissenting Financial Creditor or that his admitted claim has not been taken into consideration while allocating the amount in terms of the distribution mechanism found perfectly in order by the Adjudicating Authority.
No case for judicial interference is made out - Appeal dismissed.
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2020 (11) TMI 54
Whether a bank/financial institution can institute or continue with proceedings against a guarantor under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, when proceedings under the Insolvency and Bankruptcy Code 2016 have been initiated against the principal borrower and the same are pending adjudication?
HELD THAT:- Since the liability of a guarantor is co-extensive with that of the principal debtor and not in the alternative, it cannot be said that proceedings in the NCLT against the principal debtor can be a bar to institution or continuation of proceedings against the guarantor under the SARFAESI Act.
The question as to whether the respondent/Bank can proceed against a guarantor even after initiation of proceedings under the IB Code also stands settled.
Neither Section 14 nor Section 31 of the IB Code place any fetters on Banks/Financial Institutions from initiation and continuation of the proceedings against the guarantor for recovering their dues. That being the position, the plea taken by the counsel for the petitioner that all proceedings against the petitioner, who is only a guarantor, ought to be stayed under the SARFESI Act during the continuation of the Insolvency Resolution process qua the Principal Borrower, is rejected as meritless.
Petition dismissed.
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2020 (11) TMI 10
Liquidation of Corporate Debtor - Direction to release or vacate the subject property owned by the corporate debtor - HELD THAT:- When the Adjudicating Authority is provided with a specific jurisdiction, the Civil Courts have no jurisdiction in respect of those matters such as Preferential transactions (sections 43 and 44 of the Code), Undervalued transactions (sections 45 to 48 of the Code), etc. When these provisions are read in conjunction with other provisions of the Code such as 18(f)(vi), 25(2)(b) and 35(1)(k) of the Code, the jurisdiction of the Adjudicating Authority does not extend to subjects such as recovery of money, specific performance, eviction proceedings, etc. which were to be dealt with by Civil Courts only. It is to be borne in mind that on the guise that the Insolvency and Bankruptcy Code is a complete Code, the Adjudicating Authority can neither enlarge nor amplify its jurisdiction.
This bench is of the view that recovery of rent from the tenant and the eviction of tenant from the property of the Corporate Debtor is in the exclusive domain of the civil courts and cannot be dealt with by the Adjudicating Authority by invoking section 60(5) of the Code and the jurisdiction lies with the Civil Court/Rent Control Court only - In view of the fact that the respondent is paying rent all along for the property, which is an admitted fact, the liquidator is right in including this immoveable property in the liquidation estate of the Corporate Debtor. The Liquidator may take steps to register the sale deed for the property in his favour, if so advised, so that there will be a clear title for the property.
The applicants in both the applications are required to approach the appropriate jurisdictional Civil Court for the remedies claimed in these applications except the sale of the property. As far as sale of the property by the liquidator is concerned, he can do so after taking possession by due process of law - Application dismissed.
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