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Insolvency and Bankruptcy - Case Laws
Showing 1 to 20 of 68 Records
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2020 (4) TMI 897
Seeking a direction to the respondent/non-applicant i.e. Indian Overseas Bank to release all the funds of the corporate debtor which were retained by the respondent/non-applicant - HELD THAT:- The Hon’ble Supreme Court of India in State Bank of India Versus V. Ramakrishnan and Another [2018 (8) TMI 837 - SUPREME COURT] while holding that Section 14(3) of the Code has no application to the personal guarantors, discussed the background to the introduction of the amendment to Section 14(3) of the Code - A careful examination of Section 14(3)(b) of the Code and the decision of the Hon’ble Apex Court, indicates that the action of the respondent/nonapplicant is not covered under Section 14(3)(b) of the Code.
In the present case, it is in dispute that whether a charge was created in accordance with Section 77 of the Companies Act, 2013. Neither of the counsel filed any proof or document in support of their respective contentions. In the absence of the same, no finding can be given on this aspect.
The respondent/non-applicant shall release the amounts in Item Nos.2, 5, 6, 7, 8 and 9, of the table mentioned above, alongwith interest accrued, if any, to the account of the corporate debtor to enable it to utilize in accordance with the Code and the Regulations made thereunder - applicant/Resolution Professional is directed to file a detailed affidavit before this Tribunal with regard to utilization of the amounts, within two weeks from the date of reopening of National Company Law Tribunal, Chandigarh Bench, after the lockdown is removed.
Application disposed off.
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2020 (4) TMI 892
Replacement of IRP with RP - seeking approval for replacing Mr Hemant Shah, Interim Resolution Professional (IRP), with Mr Saurabh Tikmani as Resolution Professional (RP) of the Corporate Debtor - sections 22(2) and 22(3)(b) of the Insolvency & Bankruptcy Code, 2016 - HELD THAT:- The first meeting of the CoC was held on 16.01.2020, at which it was resolved to appoint Mr Saurabh Tikmani (Reg. No.IBBI/IPA001/IP-P00559/2017-18/10989) as the RP of the Corporate Debtor in place of Mr Harshul Anilkant Shah, IRP. The voting result has been placed at p.47 of the Interlocutory Application. Mr Saurabh Tikmani has also filed his written consent in Form AA to act as RP of the Corporate Debtor, which has been placed on record at p.48 of the Application. There are no circumstances that inhibit the appointment of Mr Saurabh Tikmani as such RP.
This Bench after duly considering the facts and circumstances mentioned in the interlocutory application and the submissions made by the learned counsel for the Applicant/ RP at the time of hearing held on 28.02.2020, hereby grants approval for the appointment of Mr Saurabh Tikmani [Reg. No.IBBI/IPA-001/IPP00559/2017-18/10989] as the RP of Tribhovandas Bhimji Zaveri & Sons Retail Private Limited [CIN: U74999MH2015PTC263038], the Corporate Debtor.
Application disposed off.
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2020 (4) TMI 880
Modifications made by the learned Adjudicating Authority in the ‘Resolution Plan’ submitted - direction to payment to unclaimed Fixed Deposit Holders - HELD THAT:- The implementation of the ‘Successful Resolution Plan’ would involve participation of the ‘Successful Resolution Applicant’, i.e. NBCC (India) Ltd. as also the three major Institutional Financial Creditors, who are Members of the ‘Committee of Creditors’ i.e., IDBI Bank Ltd., IIFCL and LIC - Meanwhile, till further orders, the approved ‘Resolution Plan’ may be implemented subject to outcome of this Appeal. The Interim Resolution Professional may constitute ‘Interim Monitoring Committee’ comprising of the ‘Successful Resolution Applicant’, i.e., the Appellant and the three major Institutional Financial Creditors, who were Members of the ‘Committee of Creditors’.
The Resolution Professional, who would be constituent of the ‘Interim Monitoring Committee’ shall continue to be paid as may be deemed reasonable by the ‘Interim Monitoring Committee’ from the date of this order. If any fee is outstanding for the past services rendered by the Resolution Professional during the ‘Corporate Insolvency Resolution Process’, the same shall be paid as per the decision of the ‘Committee of Creditors’. These directions will last till the disposal of this Appeal.
List the matter for ‘admission after notice’ on 15th May, 2020.
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2020 (4) TMI 865
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - Time Limitation - HELD THAT:- It can be seen that the Operational Creditor has served demand notice in Form 4 dated 04-01-2018 upon the Corporate Debtor successfully. The speed post receipt along with the tracking report showing the delivery of the demand notice is found attached as Annexure-D of the petition. It is observed that the Corporate Debtor has chosen not to reply to the above stated demand notice. It could also be seen that if any dispute as to the outstanding due was there, the same could have been stated in the reply to the demand notice by the Corporate Debtor. Therefore, the pleading of the Corporate Debtor challenging the veracity of the invoices raised by the Operational Creditor lacks force.
Time Limitation - HELD THAT:- The Operational Creditor has attached the bank statement of ICICI Bank (Page 148 of the petition) wherein it could be seen that the last payment of ₹ 50,000/- dated 22-07-2015 has been received by the Corporate Debtor from which it could be presumed that the same was received in lieu of the services provided by the Operational Creditor. It could also be inferred from the ledger of the Corporate Debtor (Page 20 of the petition) that the due date for the payment for the last invoice raised on 23-07-2015 is 22-08-2015. It is therefore held that the period of limitation starts from the date 22-08-2015 itself and the petition is very well within the limitation period as the petition has been filed on 17-08-2018 with this Tribunal.
The operational debt remains unpaid, the demand notice was delivered to the corporate debtor and reply was received within the stipulated 10 days period. In view of the satisfaction of the conditions provided for in section 9(5)(i) of the Code, the petition for initiation of CIRP is deserves to be admitted - petition admitted - moratorium declared.
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2020 (4) TMI 864
Approval of Resolution Plan - time limitation of the process - expiry of the process - the CIRP is stated to have expired on 8-7-2019 and no resolution plan under section 30 (6) of the Code was received by the AA before that date - HELD THAT:- In the instant application filed by the RP, it is stated that despite issue of invitation for Expression of Interest in Form G on 26-12-2018 with last date of submission as 31-1-2019 and extension of the last date to 20-2-2019, three Expressions of Interest were received. It is further stated that despite the last date of 2-4-2019 for submission of resolution plans and extension of the date twice to 3-6-2019, no resolution plan was received. No resolution plans are stated to be received even on 08-11-2019, when the 14th meeting of CoC was convened.
It is stated in the instant application that since Agenda Item No. 7 relating to appointing a Liquidator and approving the fees to be paid to the Liquidator was not approved by the CoC in its 14th meeting held on 08-11-2019, the applicant has not given his consent to act as a Liquidator and the AA may appoint a Liquidator for Isolux in terms of section 34 (4) (c) of the Code. On the failure of the RP Shri Vikram Kumar to submit the written consent, the AA is empowered under section 34 (4) of the Code to replace the RP by following the procedure provided for in section 34 (5) to (7) of the Code.
As regards Regulation 39B, the CoC did not approve any plan for providing contribution for meeting the difference between the excess of estimated liquidation costs over the liquid assets and was of the view that the estimated liquidation costs can be approved quarterly in the stakeholder consultation committee to be constituted as per Regulation 31A of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 (Liquidation Process Regulations, 2016).
The plan under Regulation 39B (3) of the CIRP Regulations, 2016 has not been approved by the CoC - After taking into consideration the discussion by the CoC in the 14th meeting held on 08-11-2019, the Liquidator may take necessary action under Regulation 2A of the Liquidation Process Regulations, 2016.
It is directed that all the directions/requirements and provisions of Chapter III of the Code and Liquidation Process Regulations, 2016 shall be strictly complied with.
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2020 (4) TMI 863
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - HELD THAT:- The application made by the Operational Creditor is complete in all respects as required by law. It clearly shows that the Corporate Debtor is in default of a debt due and payable, and the default is in excess of minimum amount of one lakh rupees stipulated under section 4(1) of the IBC. Therefore, the default stands established and there is no reason to deny the admission of the Petition. In view of this, this Tribunal admits this Petition and orders initiation of CIRP against the Corporate Debtor.
Application admitted - moratorium declared.
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2020 (4) TMI 838
Inaction of the official respondent in not registering an FIR on the basis of the complaint made by the petitioner - complaint discloses a cognizable offence of forgery being committed for filing a case into the court against the petitioner - whether the High Court in exercise of jurisdiction under Article 226 of the Constitution of India can direct the official respondents to register an FIR on the basis of the complaint made by the petitioner?
HELD THAT:- If an act of forgery is resorted to and using such forged document a proceeding is laid in any court, the provisions of Section 195 (1)(b)(ii) of Cr. P.C., does not prohibit the victim from filing a complaint either with the police or before the magistrate under Section 156(3) of Cr.P.C. - Though in the facts of the present case, the petitioner has approached the respondent police authorities by lodging a complaint by e-mail on 03.09.2019 and thereafter on 29.10.2019, the respondent authorities did not register FIR on the basis of the complaint and on the other hand, directed the petitioner to approach NCLT since the matter was pending before such tribunal. Though in the notice issued to the petitioner with regard to the action taken on the complaint, the respondent authorities did not specifically refer to the provisions of Section 195 of the Cr.P.C., the purport of the said communication can clearly be inferred, whereby the respondent authorities wanted a complaint to be made by the concerned court under Section 340 of Cr.P.C., since, the document is already filed into the court.
The restriction placed under Section 195 of the code is applicable only when a court is required to take notice judicially of the act of offence complained and the investigation thereinto by the police authorities. Thus, this court is of the view that the respondent police authorities ought to have registered an FIR on the basis of the complaint made by the petitioner and take up investigation in the matter as specified under Section 156 of the Code, instead of issuing notice claiming that a civil dispute is pending before NCLT and directing the petitioner to approach NCLT for redressal.
Though this court having come to the conclusion that the respondent police authorities ought to have registered an FIR on the basis of the complaint made by the petitioner, this court cannot in a writ petition direct the respondent police authorities to register an FIR and investigate into the matter being complained of - the main relief sought for in the present writ petition of “directing the respondent official to register an FIR on the basis of the complaint” cannot be granted and since a notice has been issued to the petitioner informing the action taken on the basis of the complaint lodged, it is left open for the petitioner to approach the concerned Magistrate court having jurisdiction to avail remedies in accordance with law.
Petition disposed off.
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2020 (4) TMI 773
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - scope of the term NBFC - existence of debt and dispute or not - time limitation - HELD THAT:- The RBI, i.e. financial service regulator has granted the certificate of registration to carry on the business of Non-Banking Financial Institution in 1998 - the respondent has intentionally deceived the applicant while executing the KYC Form. Now he cannot escape from his liability by raising an objection of NBFC. It can be said that though the respondent is an NBFC, however, without ignoring the fact that the respondent himself entered into the transaction with the Applicant in the capacity of a Private Limited Company. Thus, in regard to the transaction under consideration the respondent falls under the definition of Corporate Debtor and cannot fall under the shell of the term 'NBFC.
Pre-existing dipsute or not - HELD THAT:- It is seen in the delivery report filed by the Applicant that the Demand notice under section 8 of IBC, 2016 was delivered on 16-3-2018 and the respondent has replied on 5-4-2018. Giving a notice of pendency of application under section 9 of the Arbitration and Conciliation Act, 1996 by the respondent after 10 days from receipt of demand notice, does not hit section 8(2) of IBC, 2016. Thus, the dispute raised by the respondent is patently feeble legal argument unsupported by evidence on the basis of pending application under section 9 of the Arbitration and Conciliation Act, 1996, for an interim measure without establishing that an amount of ₹ 63,31,706.09/- is due to the respondent.
Time limitation - HELD THAT:- In accordance with section 238 of the IBC, 2016, the provisions of the Code have overriding effect on the Arbitration and Conciliation Act, 1996. The Registered Office of the Corporate Debtor is situated in Jaipur and therefore this Tribunal has jurisdiction to entertain and try this Application. The matter is within the purview of Law of Limitation.
Application admitted - moratorium declared.
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2020 (4) TMI 772
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 the instant case, there was no final, clear or crystallised debt or demand till the time of the notice and the same was disputed and subject to reconciliation/adjustment, as per the Agreement itself - In the instant case the Respondent has not only opposed the Demand Notice but raised a bona fide dispute which arises from the Agreement between the two parties and which requires to be adjudicated, which is in progress in an Italian Court, and for which this Tribunal is not the forum, apart from the fact that the amounts in question themselves remain to be reconciled.
Hence, since an undisputed clear debt at the time of sending the Demand Notice under the Code or alleging a default by the Petitioner is a sine qua non for initiating proceedings under section 9 of the Code, and whereas there was also a pre-existing dispute over the final amount payable, and also with part payment being made, which makes this a mere recovery proceeding, the Petition is liable to be dismissed on all these scores as well.
Petition dismissed.
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2020 (4) TMI 733
Liquidation of Corporate Debtor - liquidation sought on the ground the Resolution Applicant failed to perform the Resolution Plan as stated in the Resolution Plan and for appointment of Mr. Chandramouli Ramasubramaniam as Liquidator of the Corporate Debtor - HELD THAT:- Looking at the attendance sheet file, it appears that these Respondents (Promoter-Directors) appeared on and off but have not come out with any concrete proposal or any promise to comply with the Resolution Plan approved by this Bench. For having already two months gone by after filing this application, we are constrained to pass orders to liquidate the Corporate Debtor under section 33(3) of the Code by directing the erstwhile Resolution Professional (RP) namely, Mr. Chandramouli Ramasubramaniam looking at the written consent given by him, to act as the Liquidator of the Corporate Debtor for the purpose of liquidation of this Corporate Debtor.
The Liquidation of Corporate Debtor is ordered in the manner as laid down in the Chapter by issuing a public notice stating that the Corporate Debtor is in liquidation with a direction to the liquidator to send this order to ROC with which this company has been registered.
The Registry is hereby directed to immediately communicate this order to the Liquidator, the Corporate Debtor, the IBBI and Concerned ROC by way of e-mail - application allowed.
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2020 (4) TMI 703
Admissibility of application - section 60(5) of the Insolvency & Bankruptcy Code, 2016 - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - HELD THAT:- On perusal of the records, it is found that Form F at Page 29 of the application is incomplete - It does not contain any date and address of the executor of the form. In the Declaration Form, all the spaces are blank and no address is given. Under such circumstances, the genuinity of the document(s) is/are not only doubtful but it cannot be entertained in any manner.
Application cannot be admitted.
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2020 (4) TMI 702
Maintainability of application - initiation of CIRP - Corporate debtor failed to make payment of outstanding dues - existence of dispute or not - HELD THAT:- In respect of petition filed under section 7 of I&B Code for initiation of CIRP by Financial Creditor, the Adjudicating Authority has to see the existence of financial debt, whether the default has occurred and whether the petition is complete.
From the records submitted alongwith the petition, it can be said that the petition in Form-1 filed by Shri Dinesh Kumar Patwari, AGM of the Bank and in support of the same, the Petitioner has filed authorization papers. The petition is complete - There is financial debt owed by the Respondent to the Petitioner.
Time Limitation - HELD THAT:- Date of NPA is 31-5-2015. The last date of transaction is on 30-6-2016 - The petition is filed on 18-3-2019 and is well within time.
Petition allowed.
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2020 (4) TMI 701
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - HELD THAT:- The CD has defaulted in making repayment of loan/credit facilities to the Petitioner Bank and the date of default is 30/09/2015 - The Petitioner Bank has filed the petition within the period of limitation, as the last payment into the Account has come on 26/02/2016.
The present LB. Petition is filed by the duly authorised official of the Applicant Bank in a prescribed format under section 7 of the LB. Code annexing copies of loan documents confirming the existence of debt due and defaulted and proposed a name of Resolution Professional to act as an Interim Resolution Professional (IRP).
This Adjudicating Authority is satisfied that The Corporate Debtor availed credit facilities from the Financial Creditor; Existence of debt is above Rs. One Lakh; Debt is due; Default has occurred on 30/09/2015; Petition has been filed within the limitation period as the last payment into the account has come on 26/02/2016, when the petition has been filed on 30/11/2018 and Copy of the Application filed before the Tribunal has been sent to the Corporate Debtor and the application filed by the Petitioner Bank under section 7 of IBC is found to be complete for the purpose of initiation of Corporate Insolvency Resolution Process against the Corporate Debtor.
The present IB Petition is admitted. The date of admission of this petition is 13/01/2020 - Application admitted - moratorium declared.
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2020 (4) TMI 700
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - HELD THAT:- Hon'ble Supreme Court has held that existence of undisputed debt is sine qua non of initiating Corporate Insolvency Resolution Process (CIRP) in TRANSMISSION CORPORATION OF ANDHRA PRADESH LIMITED VERSUS EQUIPMENT CONDUCTORS AND CABLES LIMITED [2018 (10) TMI 1337 - SUPREME COURT].
The Adjudicating Authority does not have the powers of the Civil Court to arrive at the exact amount due and payable under various invoices. Further, what is the terms and conditions of the contract between the parties and the documents substantiating the same, ought to be decided only by trial by the Civil Court. Hence, this Adjudicating Authority cannot go into these details in a summary suit.
Application dismissed.
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2020 (4) TMI 679
Maintainability of application - initiation of CIRP - Recovery of debt - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - HELD THAT:- The Respondent has paid the principal amount of all three Agreements in question in two instalments viz ₹ 3,00,00,000/- on 1-1-2019 and ₹ 1,13,34,068/- on 20-6-2019. Admittedly, there is no interest mentioned in the Agreements in question. However, the Petitioners added interest too unilaterally. Another material blunder committed in making claim in the instant Petition is that though buy back price mentioned in the Agreement for Residential Apartment bearing 6 D was mentioned as ₹ 1,62,36,928/, it was wrongly claimed ₹ 4,81,92,000/which is the price fixed for second option. There is no mention of interest either in the Agreements or Agreement to sale and Development Agreement - There is no rationale in fixing buy back price and it appears to be fixed in lump sum and therefore, it can be offered to the Respondent in lump sum. In the absence of any document produced in support of first Option, the claim in question justified so as to take it as legally liable to pay. Therefore, the Petitioners failed to prove that they are entitled to recover Debt in question, in terms of Agreements in question.
Whether the instant Petition is filed with an intention to recover alleged outstanding amount after receiving principle amount in question in full or to initiate CIRP on justified grounds? - whether the Respondent is insolvent/solvent Company; whether the Petitioners approached the Tribunal with clean hands with bona fide intention? - HELD THAT:- The Petitioners have admittedly received Principle amount in full with no element of interest mentioned in the Agreements in question. And the instant Petition is filed under the guise of provisions of Code, with an intention to recover the difference between principle amount and buy back payments as referred to in Agreements in question and also unilaterally imposing condition of interest for failure to pay difference of amount. It is settled position of law that provisions of Code cannot be invoked as a substitute for debt enforcement or recovery-proceedings.
The Proceedings contemplated under the provisions of Code are summary in nature and disputed questions of facts and law cannot be gone into those proceedings as several disputed questions of facts and law. Wherein even Debt in question is not established. Therefore, other remedies available to the Petitioners as per Agreements in question and also as per law like initiating suit for specific performance or to file suit to get decree for recovery of alleged outstanding amount by adducing appropriate evidence and documents etc.
The Petitioners has failed to establish the claim as made in the Company Petition, so as to constitute default to initiate CIRP in respect of the Respondent and thus it is liable to be rejected by reserving liberty to the Petitioners to invoke appropriate civil remedy - Petition dismissed.
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2020 (4) TMI 678
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - dishonor of cheque - section 138 of NI Act - HELD THAT:- In the instant case, 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' - On perusal of the records it is also found that the corporate debtor has never raised any dispute on issuance of notice u/s. 8 of the I & B Code nor have ever raised any dispute prior to the issuance of notice.
The respondent has defaulted the debt and has admitted 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. That, service is complete and 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.
It is evident that 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 - petition admitted - moratorium declared.
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2020 (4) TMI 677
Arbitral award - Enforcing of the Award passed by the Learned Arbitrator - section 14 (1) (a) of the I&B Code, 2016 - main crux of the submissions/contentions on behalf of the Learned IRP seems to be that by virtue of the reliefs as sought for, the Applicant is trying to enforce the Award passed by the Learned Arbitrator which cannot be done taking into consideration the provisions of section 14 (1) (a) of the I&B Code, 2016.
HELD THAT:- As per clause 5 (e) (x), the payment to be effected by the Corporate Debtor to the Applicant on the date fixed as per the schedule of payments, the rights provided for clause (d) in favour of the Corporate Debtor will come into operation. So, the rights of the Corporate Debtor in relation to what has been mentioned in clause 5 (d) comes to the effect only after the payment which is required to be made by the Corporate Debtor to the Applicant. That is, the right that can be exercised in relation to the property which is subject matter to the dispute as between the parties and several agreements which has been entered into from time to time and Power of Attorney in relation to which the Award has been passed - the Corporate Debtor cannot also include in its assets any of the assets owned by the 3rd party in possession of the Corporate Debtor held under Trust or under contractual arrangements including bailment. From the reading of the above provisions as well as taking in tandem from the Award passed by the Learned Arbitrator, it is seen that even though the Corporate Debtor might have a legal right of beneficial interest in relation to the assets which according to the Ld. IRP to be treated as the stock-in-trade, but, however, subject to the conditions as imposed by the Learned Arbitrator and as against which no material has been brought forth by the IRP as to whether the same is under challenge under section 34 of the Arbitration and Conciliation Act, 1996 as amended and as to whether any stay has been granted in relation to the enforcement of the same.
By virtue of reading section 14 (1) (b) restricts on the part of the Corporate Debtor in transferring or otherwise dealing with the property including its own during the period of CIR Process. No evidence has been placed by the IRP that the assets which are sought to be alienated are stock-in-trade with adequate evidence and not to be treated as an asset. In any case in relation to accounting parlance "Stock-in-Trade" is also part of Current Assets of the Corporate Debtor and cannot be divorced from it - taking into consideration the provisions of the I&B Code, 2016, in relation to the property which is the subject matter of Arbitration Award as well as in the interest of justice, a status quo order is granted and the IRP is directed not to deal with the said property.
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2020 (4) TMI 676
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - invocation of Section 9 of the Insolvency & Bankruptcy Code, 2016 - HELD THAT:- In view of the Corporate Debtor's failure to reduce or liquidate its liability, the present petition has been filed in the required format praying for initiation of the Corporate Insolvency Resolution Process of the Corporate Debtor. Affidavit in compliance under section 9(3)(b) and 9(3)(c) of Code are on record to corroborate his case - The Corporate Debtor has been duly served by Courier Service. None was present on behalf of the Corporate Debtor hence they were proceeded ex-parte vide order dated 02-09-2019. Considering the circumstances, the prayer of the Operational Creditor merits consideration.
Petition admitted - moratorium declared.
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2020 (4) TMI 675
Liquidation of Corporate Debtor - sections 33(1), 33(2) and 34(1) of the IB Code, 2016 - HELD THAT:- RP in response to calling of Expression of Interest from the potential resolution applicants, received only one expression from M/s. GSEC Ltd. and the same was not to the expectation of the CoC and therefore, CoC rejected the resolution plan. However, before rejecting the resolution plan submitted by M/s. GSEC Ltd., sufficient opportunities were provided to M/s. GSEC Ltd. to present their case - It is further observed by this Adjudicating Authority that had the resolution applicant i.e. M/s. GSEC Ltd. any grievances against the CoC, the resolution applicant would have preferred IA against the decision of the CoC. Whereas in the instant case, the IA is preferred by the suspended board of director of the Corporate Debtor Company.
Further, this Adjudicating Authority cannot question the wisdom of the CoC and their recommendation for liquidation of the Corporate Debtor Company.
This Adjudicating Authority is of a considered view that there shall be an order of liquidation in respect of the Corporate Debtor Company Ardor Global Private Limited and direct the Liquidator to issue a public announcement stating that Corporate Debtor Company is in liquidation - Application allowed.
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2020 (4) TMI 643
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - pre-existing dispute - HELD THAT:- It can be seen that the parties to the contract by their conduct signified their acquiescence in the continuance of the contract. There is an apparent deviation with respect to the contractual obligations regarding completion of Factory Acceptance Test from the side of both the parties which disturbs the existence per-se of the operational debt. It is an accepted principle for a claim in the nature of operational debt that it emanates from the Purchase Order and the terms and conditions contained therein, the Applicant/Operational Creditor appears to have made suppression of such a material document; no mention seem to have been made in the Application submitted by the Operational Creditor.
The suppression of existence of such a Purchase Order appears to be an attempt to camouflage their contractual obligations so as to establish their claim for operational debt. In addition, the Operational Creditor has not completed the process of erection and commissioning so as to make them eligible to claim the operational debt.
There is a deviation with respect to the contractual obligations regarding completion of Factory Acceptance Test from the side of both the parties which disturbs the existence per-se of the operational debt leading to a pre-existence of dispute - Petition dismissed.
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