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Insolvency and Bankruptcy - Case Laws
Showing 41 to 60 of 68 Records
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2020 (4) TMI 448 - NATIONAL COMPANY LAW TRIBUNAL, BENGALURU BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of dues - existence of dispute or not - HELD THAT:- There is pre-existing dispute over claim made in the instant Petition, and the Petitioner failed to explain laches and limitation, and it is initiated with an intention to recover the balance amount of 10 % which is stated to have forfeited, which is contrary to settled position of law. It is also placed on record that Respondent is a solvent company and having around 2000 employees on regular and seasonal on its roll. Therefore, the Company cannot be put under CIRP, when the Petitioner failed to make out case in favour of such prayer.
Since the Respondent, for the first time stated to have raised plea of forfeiture of remaining balance amount in its reply dated 08th March, 2019, it would be just and proper to direct the Respondent to reconsider the claim of Petitioner, dispassionately, in terms of Purchase order and Agreement in question, in order to avoid further litigation, without prejudice to the rights of both the Parties.
The Petitioner is permitted to submit their representation about its claim along with supported documents to the Respondent within the period of 4 (four) weeks from the date of receipt of copy of this order - Petition disposed off.
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2020 (4) TMI 447 - NATIONAL COMPANY LAW TRIBUNAL, CHANDIGARH BENCH
Sanction of resolution plan - Section 31 (1) of the Code - HELD THAT:- It is observed that the amount payable towards the operational creditors is ₹ 0.35 crore as provided in the resolution plan. Further, the amount to be distributed between operational creditors in the event of liquidation, if distributed in order of priority in Section 53(1) of the Code would be NIL. There are 5 dissenting unsecured financial creditors i.e. EPI Money Pvt. Ltd., United Petro Finance Limited, Oxyzo Financial Services Pvt. Ltd., Bajaj Finance Limited and Equitas Small Finance Bank Ltd. and the amount provided for the dissenting unsecured financial creditors is ₹ 0.25 crore. The liquidation value payable to them under section 53(1) in the event of liquidation would be NIL. Hence, Section 30(2)(b) of the Act stands complied with.
The requirements under section 31(1) of the Code are satisfied in the present case. In para No. 4 of Form H he RP has certified that the resolution plan complies with all the provisions of the Code and Regulations and does not contravene any of the provisions of the law for the time being in force. The RP has also certified that the resolution applicant Vaibhav Buildtech Private Limited has submitted affidavit pursuant to Section 30(1) of the Code confirming its eligibility under section 29A of the Code to submit the resolution plan and the contents of the said affidavit are in order - the decision taken by the financial creditors falls within the ambit of its commercial and banking wisdom and is therefore, not being interfered with.
In view of the provisions of Section 30(4) of the Code, we approve the resolution plan submitted by Vaibhav Buildtech Private Limited as approved by the CoC. The resolution so approved shall be binding on the corporate debtor and its employees, members, creditors [including the Central Government, any State Government or any local authority to whom a debt in respect of the payment of dues arising under any law for the time being in force, such as authorities to whom statutory dues are owed,] guarantors and other stakeholders involved in the resolution plan - moratorium order passed by the Adjudicating Authority under Section 14 of the Code on 15-11-2018 shall cease to have effect - RP shall forward all records relating to the conduct of the CIRP and the resolution plan to the Board to be recorded on its database.
Application disposed off.
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2020 (4) TMI 418 - MADRAS HIGH COURT
Validity of order of spcial bench of NCLT - Irregularity in publishing of Cause List in the prescribed manner - Whether non-adherence to Rules 89, 150 to 153 of NCLT Rules, 2016 would vitiate the impugned order? - initiation of CIRP - the petitioner is ready and willing to clear the outstanding dues of the secured creditor / 4th respondent herein within a period of 15 days
HELD THAT:- This Court is of the considered view that though Rule 89 of the NCLT Rules have not been complied with by the 2nd respondent, the fact remains that after the pronouncements of the impugned common order on 20.01.2020, certified copy of the said order was furnished to the learned counsel for the petitioner on 27.01.2020 i.e., within 7 days from the date of pronouncement of the order.
Section 30 of IBC speaks about Submission of Resolution Plan and Section 31 speaks about Approval of Resolution Plan. Section 61 speaks about Appeals and Appellate Authority and Sub-Section (1) of Section 61 says that “Notwithstanding anything to the contrary contained under the Companies Act, 2013, any person aggrieved by the order of the Adjudicating Authority under this Part may prefer an appeal to the NCLAT”. Sub-Section (2) of Section 61 says that the appeal shall be filed within 30 days before the NCLAT and Sub-Section (3) of Section 61 says that an appeal against an order approving a resolution plan under Section 31 may be filed on five grounds - petitioner got the certified copy of the order within 7 days from the date of pronouncement of the common order dated 20.01.2020 i.e., within the timeline contemplated under Section Sub-Section (2) of Section 61 of IBC and as such, it cannot be said that he has been put to serious prejudice on account of non-uploading of the information relating to pronouncement of the orders on 20.01.2020 and non indication of the same in the Cause List.
Mandatory nature of NCLT Rules, 2016, more particularly Rules 150 and 153 - HELD THAT:- In the light of the settled legal position that consequences that may arise on account of the non-adherence to the time line/procedure have not been indicated in the said Rules, it can be considered to be only directory.
Petition dismissed.
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2020 (4) TMI 385 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Approval of Resolution plan - initiation of CIRP - approved Resolution Plan has been alleged to be discriminatory and threatening the livelihood of 1184 workers of the paper unit and solvent extraction industrial units of Murli Industries Ltd. (Corporate Debtor) by not paying outstanding wages and compensation for retrenchment as per the provisions of Industrial Disputes Act, 1947.
Whether the approval of Resolution Plan and the distribution/payment to various stakeholders therein was in accordance with the provisions of I&B Code? - HELD THAT:- When the Adjudicating Authority is satisfied that the Resolution Plan as approved by the committee of creditors under sub-section (4) of section 30 meets the requirements as referred to in sub-section (2) of section 30, it shall by order approve the resolution plan which shall be binding on the corporate debtor and its employees, members, creditors, guarantors and other stakeholders involved in the resolution plan. Provided that the Adjudicating Authority shall, before passing an order for approval of resolution plan under this subsection, satisfy that the resolution plan has provisions for its effective implementation - Where the Adjudicating Authority is satisfied that the Resolution Plan does not confirm to the requirements referred to in sub-section (1), it may, by an order, reject the Resolution Plan.
Scope and ambit of jurisdiction of Adjudicating Authority and Appellate Tribunal while approving Resolution Plan - Whether a conditional Resolution Plan can be approved? - HELD THAT:- The Adjudicating Authority and Appellate Authority cannot go into the feasibility and viability of the Resolution Plan which requires commercial wisdom of the Committee of Creditors. The Adjudicating Authority and Appellate Authority has to go by the various propositions of law stated above accordingly to which they have to go by the commercial wisdom of committee of creditors while approving the Resolution Plan. The given Resolution Plan is conditional but since according to the express directions given by Supreme Court in the various cases stated above. The Adjudicating Authority per se will have to go the Commercial wisdom of Committee of Creditors.
Whether those claims that are not dealt under the resolution plan can be held to be extinguished under the provisions of the I&B Code? - HELD THAT:- A successful Resolution Applicant cannot suddenly be faced with “undecided” claims after the Resolution Plan submitted by him has been accepted as this would amount to an extra amount coming up for payment after the debts have been dealt by the Resolution Applicant and the Resolution Plan has been approved. This would throw into uncertainty amounts payable by a prospective Resolution Applicant who successfully takes over the business of the Corporate Debtor - All claims must be submitted to and decided by the Resolution Professional so that a prospective Resolution Applicant knows exactly who has to be paid in order that it may then take over and run the business of the Corporate Debtor. Therefore, claims that are not submitted or are not accepted or dealt with by the Resolution Professional and such Resolution Plan submitted by the Resolution Professional is approved then those claims would stand extinguished.
Whether the Adjudicating Authority has power to modify its own order? - HELD THAT:- An error cannot be said to be apparent on the face of the recorded if one has to travel beyond the record to see whether the judgment is correct or not. An error apparent on the face of the record means an error which strikes on mere looking and does not need long-drawn out process of reasoning on points where there may conceivably be two opinions. Such error should not require any extraneous matter to show its incorrectness. To put it differently, it should be so manifest and clear that no court would permit it to remain on record. This does not include the power to modify any substantial part of the judgment which determines rights of one party or the other.
Whether the initiation of CIRP was vitiated in view of the pendency of winding up petition before the Hon’ble High Court of Bombay, Nagpur Bench? - HELD THAT:- The Hon’ble High Court of Bombay had granted leave to the Respondents to initiate CIRP vide order dated 02.11.2018 and put the matter to rest by retrospectively validating the CIRP. Overriding effect has also been given to the I&B Code over any other law in force and therefore, the Adjudicating Authority had rightly initiated
The Resolution Plan as approved by the Adjudicating Authority is in accordance with Insolvency and Bankruptcy Code, 2016 and various propositions of law as laid down by the Hon’ble Supreme Court in Committee of Creditors of Essar Steel India Limited Vs. Satish Kumar Gupta & Ors. [2019 (11) TMI 731 - SUPREME COURT].
The Hon’ble Supreme Court has reiterated the issue on commercial wisdom of Committee of Creditors, hence the Adjudicating Authority per se is not to be involved in the commercial wisdom area of the Committee of Creditors, particularly, in the approval of commercial side of Resolution Plan/Modified Resolution Plan - there are no ground to interfere with the impugned order dated 22nd July, 2019 passed by the Adjudicating Authority - order of NCLT upheld.
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2020 (4) TMI 374 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
CIRP Process - the amount in terms of the earlier order dated 21st January, 2020 has been paid. Mr. Joy Saha, learned Senior Counsel appearing on behalf of ‘Committee of Creditors’ has also accepted the same - HELD THAT:- According to the Appellant, it has already paid the amount - In view of the above development, we allow the ‘Resolution Professional’/‘Liquidator’ to hand over the records, control etc. to the Appellant (‘Successful Resolution Applicant’ – Liberty House Group Pte. Ltd.). Parties will also ensure to implement the plan in its letter and spirit. The detailed affidavit(s) be filed by the Appellant and the ‘Committee of Creditors’ within a week. Rest of the issues will be decided on the next date.
Post the case ‘for orders’ on 3rd March, 2020 before the 1st Bench on the top of the list.
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2020 (4) TMI 352 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - HELD THAT:- We do not find that the ‘Corporate Debtor’ is able to show “dispute” with regard to quality of services rendered and thus we do not find any reason to interfere in the Impugned Order.
Appeal dismissed.
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2020 (4) TMI 351 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Failure to implementation of plan as given in Resolution Plan - failure to make payment of upfront amount - HELD THAT:- In view of the fact that both the ‘Resolution Plans’ submitted by ‘Liberty House Group Pte. Ltd.’ in respect of ‘M/s. Adhunik Metaliks Limited’ and ‘M/s. Zion Steel Limited’ have now been given effect by making full payment of upfront amount, learned counsel appearing on behalf of the ‘Committee of Creditors’ submits that he has been instructed not to press the appeal preferred by the State Bank of India - the ‘Resolution Professional’ submitted that for ‘M/s. Adhunik Metaliks Limited’, cost of the ‘Corporate Insolvency Resolution Process’ has been partly paid.
In the present case, both the ‘Resolution Plans’ are now being implemented and ‘Liberty House Group Pte. Ltd.’, has paid additional amount of ₹ 10 Crores, we are inclined to interfere with the impugned order of liquidation. We, in exercise of powers conferred under Rule 11 of the NCLAT Rules, 2016 and to ensure that the CIRP of both the ‘Corporate Debtors’- ‘M/s. Adhunik Metaliks Limited’ and ‘M/s. Zion Steel Limited’ now reaches finality, the ‘Committee of Creditors’, other Creditors etc., now have no objection and the liquidation will not be in the interest of both the ‘Corporate Debtors’- ‘M/s. Adhunik Metaliks Limited’ and ‘M/s. Zion Steel Limited’, its employees etc., set aside the impugned order dated 9th July, 2019.
Appeal allowed.
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2020 (4) TMI 350 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - pre-existing dispute or not - HELD THAT:- The Notice does disclose pre-existing dispute between the parties with regard to the services rendered by the Appellant. Notice shows loss of confidence & thus holding on to outstanding payments. It is not possible in a summary proceeding like the present one for the Adjudicating Authority or this Tribunal to analyze the e-mails exchanged earlier in depth to ignore Notice like the present one, which was not simply rushed through. In proceedings of Section 9 of IBC, such Notice which is prior in time to the Notice sent under Section 8 of IBC, does show that there was pre-existing dispute regarding services rendered.
It cannot be stated to be a dispute raised merely for the purpose of dispute - Application rightly rejected - appeal dismissed.
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2020 (4) TMI 349 - NATIONAL COMPANY LAW TRIBUNAL, CHENNAI (SB)
Resolution Professional us/s 60(5) r/w 14 seeking release of goods - CIRP already initiated - During the CIRP period, the Corporate Debtor had transactions with the Respondent and the payments have been made in accordance with the terms agreed upon. - It is claimed that, the Respondent has illegally held back it on account of the payments outstanding prior to the CIRP period dated 09-12-2018, in respect of which, the claim has already been filed and admitted by the Applicant herein.
HELD THAT:- This Corporate Debtor is not the owner of the goods, it is evident on record that the Corporate Debtor is not the consignee, the Corporate Debtor was only engaged to provide clearance services, for which, we need not labour over the facts to say that the asset lying with the Respondent is not the asset of the Corporate Debtor - Even looking at the invoices allegedly raised by the Respondent on the Corporate Debtor dated 23-4-2019, 30-5-2019 and also other documents filed by the Applicant clearly indicate that buyer of those goods is M/s. Sundaram Fasteners whereby it cannot be inferred that the Corporate Debtor has right over the goods lying with the Respondent.
For the goods not belonging to the Corporate Debtor, the Corporate Debtor, by virtue of invocation of moratorium, cannot ask for the custody of the asset showing as if the asset belongs to the Corporate Debtor.
Assuming that the asset is belonging to the Corporate Debtor, even then also, by virtue of contractual arrangement which is in the nature of bailment protected not only by Contract Act but also by Customs Act cannot be said as an asset of the Corporate Debtor as stated in the explanation to section 18 of the Code. However, the Respondent counsel, adding it as a supplementary to the above point, has reiterated that the Corporate Debtor not being the consignee nor the importer of the goods it has ownership rights, it has to be construed that it has acted as an agent on behalf of the importer, therefore, this Applicant has no right to ask for release of the consignment.
Application dismissed.
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2020 (4) TMI 348 - NATIONAL COMPANY LAW TRIBUNAL, HYDERABAD
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - Corporate Debtor has denied the claim of the Petitioner - HELD THAT:- It is apparent that the Petitioner has failed to submit any documentary evidence with the application to show that the claimed amount is due and payable by the Corporate Debtor. No invoice whatsoever has been submitted before us either.
Further, as admittedly stated in the Written Submission filed by the Petitioners, there have been several e-mail correspondence, which indicate that pre-existing disputes have been there between parties - the submission of the Petitioner clearly indicates that there were disputes pre-existing the filing of the instant application u/s.9 of the Code by the Petitioner Company.
This Adjudicating Authority is not inclined to admit the instant Application - Application dismissed.
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2020 (4) TMI 314 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI
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 Financial Creditor has succeeded to making out a case for triggering the Corporate Insolvency Resolution Process. The material on record clearly goes to show that the Corporate Debtor had availed the loan facility and has committed default in the payment of the said debt amount. The applicant 'financial creditor' has placed on record evidence in support of the claim as well as to prove the default. The Corporate Debtor by its own admission in reply acknowledges the existence of financial debt. There is no bar for Financial Creditor from proceeding under the provisions of Code. There is no document placed on record by Corporate Debtor to show that payment of debt, as claimed by the applicant, is made or is not due and payable.
The application has been filed on the proforma prescribed under Rule 4 (2) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 read with Section 7 of the Code. A default has occurred and debt has remained unpaid. Thus, the application warrants admission as it is complete in all respects and is admitted initiating CIRP as prescribed under the Code.
Application admitted - moratorium declared.
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2020 (4) TMI 313 - NATIONAL COMPANY LAW TRIBUNAL, MUMBAI
Approval of Resolution Plan - extension of CIRP period for the Corporate Debtor - third proviso of section 12(3) of the I&B Code - "Effective Date" as the date of approval of this Resolution Plan - HELD THAT:- On perusal of the Resolution Plan, we find that the resolution plan has necessary provisions for its effective implementation - The resolution applicant shall obtain the necessary approval required under any law for the time being in force within one year from the date of this order or within such period as provided for in such law, whichever is later.
The resolution plan is approved with modifications, as mentioned above, which shall be binding on the corporate Debtor and its employees, members, creditors, guarantors, Resolution Applicant and other stakeholders involved in the resolution plan - The resolution professional shall forward all records relating to the conduct of the corporate insolvency resolution process and the resolution plan to the IBBI to be recorded on its database.
Application allowed.
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2020 (4) TMI 312 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI
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 present case it is seen that there is a clear admission of non-payment of balance part debt and therefore there has been occurrence of default in payment of the claimed debt by the respondent corporate debtor - n the present case admittedly the demand notice in Form-3 as per section 8 of the Code was sent on 27-9-2019. It is thus seen that before filing the present application under section 9 of the Code, requisite notice under section 8 was duly served on the Respondent. In response to section 8 notice, respondent corporate debtor replied on 07-10-2019 acknowledging the outstanding amount and expressed its inability to pay the debt due to financial difficulty. In other words, the corporate debtor had not disputed the claim in its reply given in terms of sub-section (2) of section 8 of the Code.
It is seen that the application preferred by applicant operational creditor is complete in all respect. The material on record clearly goes to show that the respondent committed default in payment of the claimed operational debt even after demand made by the applicant operational creditor. Respondent company also did not raise any dispute regarding the existence of operational debt. In fact, the claim of default committed by the corporate debtor has not been denied. Once the application is complete and in the absence of any dispute and with the subsistence of default, the application is liable to be admitted - on fulfilment of requirements of section 9 (5) (i) (a) to (d) of the Code, the present application is admitted.
Application admitted - moratorium declared.
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2020 (4) TMI 311 - NATIONAL COMPANY LAW TRIBUNAL, CHENNAI
Approval of Resolution Plan - Payment of statutory dues - HELD THAT:- The CoC having taken decision that the present Resolution Plan is beneficial to the Financial Creditors, Corporate Debtor and all other stakeholders, they have approved the Resolution Plan with a voting share of 70.93% on 30-10-2019 - We have not come across this Resolution Applicant asking any exemption towards the claims after approval of this plan, however, in any event, if any such exemption is mentioned anywhere in the plan that is not acceptable unless and until such relief is in accordance with law.
As to action to be taken by the Corporate Debtor mentioned in the Resolution Plan as well as another clause mentioned under caption "Step: XI - Actions to be taken by the Resolution Applicant - (4)" of the Resolution Plan holding the suspended directors viz., "Mr. Sivaramakrishnan and Mr. T.K. Santhosh should take the responsibility to get the Power of Attorney registered in favour of both new Builder/Contractor & Representatives of homebuyers once the settlement of ₹ 85 lakh is made to Mr. Mukesh Jain (the current Power Agent)", the RP being the representative of the Corporate Debtor, the RP is entitled to execute the documents on behalf of the Corporate Debtor instead of asking the suspended directors who are no more representing the Corporate Debtor.
The exemptions if any sought in violation of any law in force, it is hereby clarified that such exemptions shall be construed as not granted. In view of the same, this plan is hereby approved - Application allowed.
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2020 (4) TMI 310 - NATIONAL COMPANY LAW TRIBUNAL, KOLKATA
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - It is submitted that there is a specific prayer contained under section 16G of the of the Tea Act, 1953 read with Section 16M of the Tea Act, 1953, and that the application is not maintainable because the Corporate Debtor is a Tea Company - HELD THAT:- The record is very much clear as regards supplies and payments received. The letter dated 13th January, 2016 as regards outstanding and overdue bills was duly received by the Corporate Debtor but no reply thereto was sent. No dispute as regards the payment due mentioned by the Operational Creditor in the aforesaid letter dated 13th January, 2016 was raised and the amount was not denied. In these circumstances, we can accept it as acknowledgement of its liability by the Corporate Debtor because it was duly received and signed by somebody on behalf of the Corporate Debtor and stamped with its official seal.
There is no substance in the reply of the Corporate Debtor sent to the Operational Creditor in response to its demand notice - There does not seem to be any plausible defence on the side of the Corporate Debtor in the light of all the documents placed on record and referred to by the Operational Creditor. The Operational Creditor has not proposed the name of any IRP.
The application filed by the Operational Creditor under section 9 of the Insolvency & Bankruptcy Code, 2016 for initiating Corporate Insolvency Resolution Process against the Corporate Debtor, M/s. Duncans Industries Limited is hereby admitted - Moratorium is declared for the purposes referred to in section 14 of the Insolvency & Bankruptcy Code, 2016.
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2020 (4) TMI 309 - NATIONAL COMPANY LAW TRIBUNAL, AHMEDABAD
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- This adjudicating authority is of the considered view that operational debt is due to the Applicant. That, service is complete and no dispute has been raised by the respondent. That, Applicant is an Operational Creditor within the meaning of sub-section (20) of section 5 of the Code. From the aforesaid material on record, petitioner is able to establish that there exists debt as well as occurrence of default - the Application filed by the Applicant on 8th January, 2019 is complete in all respect.
Application admitted - moratorium declared.
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2020 (4) TMI 207 - NATIONAL COMPANY LAW TRIBUNAL, AHMEDABAD BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - HELD THAT:- It is found that Manager of the respondent company appeared and fairly admitted the debt - it is also found that the instant petition filed by the applicant is well within limitation and there is no denial of the operational debt and/or any pre-existing dispute regarding the operational debt from the corporate debtor.
In the instant application, from the material placed on record by the Applicant, this Authority is satisfied that the application is complete in all respect and the Corporate Debtor committed default in paying the operational debt to the Applicant - 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' - Also, 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 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 206 - NATIONAL COMPANY LAW TRIBUNAL, KOLKATA BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - HELD THAT:- Having gone through all the documents placed on record by the Financial Creditor, it is found that the Financial Creditor has been able to prove its case. The Ld. Counsel for the Financial Creditor has taken us through all the documents placed on record. It has been shown from the record that the recovery certificate to the tune of ₹ 4,02,64,296.75 was issued by the DRT, Ranchi in favour of the Financial Creditor on 17th May, 2017 in the O.A. No. 371 of 2015 filed on 20th July, 2015 after the date of NPA dated 23rd November, 2014. The Financial Creditor had pursued its legal rights and remedies without any delay and the present petition was filed on 2nd August, 2019.
In view of the fact that the claim of the Financial Applicant have already been crystallised by DRT in its proceedings and the Recovery Certificate issued, followed by admission of the claim by the ld. Counsel appearing on behalf of the Corporate Debtor, we have no hesitation in admitting the petition and initiating Corporate Insolvency Resolution Process against the Corporate Debtor - application admitted - moratorium declared.
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2020 (4) TMI 183 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - HELD THAT:- Mere plain reading of the provision shows that an application under section 9 can only be rejected on the following grounds mentioned in section 9 sub-section 5 (11) and if it is not covered under any of the clause of section 9 sub-section 5 (11) then the Adjudicating Authority in view of the decision of M/S. INNOVENTIVE INDUSTRIES LTD. VERSUS ICICI BANK & ANR. [2017 (9) TMI 58 - SUPREME COURT] has no option but to admit the application under section 9 (5) (11) of the Code. In the light of such provision, when we shall consider the case in hand then we find that admittedly no dispute was raised under section 8, sub-section 2 of the Code and the amount claimed by the Operational Creditor has not been paid by the Corporate Debtor and we have also noticed that the application is complete and there is no disciplinary proceeding pending against the proposed IRP who has also given his consent.
The amount claimed by the Operational Creditor is more than ₹ 1 lakh which is the minimum threshold limit fixed under IBC, 2016 therefore,under such circumstances we have no option but to reject the contention of the Corporate Debtor that the application is not maintainable and it is liable to be rejected rather we are of the considered view that the Operational Creditor has succeeded to establish this fact that he was duly appointed by the Corporate Debtor and joined new assignment and a transfer was made by Corporate Debtor in terms of offer letter and the amount claimed in the petition is not paid to the Operational Creditor, which he is entitled to get in lieu of services rendered by him.
Petition admitted - moratorium declared.
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2020 (4) TMI 155 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Maintainability of application- initiation of CIRP - deemed SCN - Appeal has been filed mainly on the ground that demand notice sent at the registered office of the Corporate Debtor, was returned with the remarks of the Postal Authorities "not available".
Whether deemed service of demand notice under section 8 of I & B Code, 2016 is sufficient, to trigger the process U/S 9 of the Code?
HELD THAT:- It is apparent that the corporate debtor has not denied the service of demand notice in its reply to the petition. It is apparent that initially, the corporate debtor took the plea that demand notice was not as per applicable Rules and Regulations. The corporate debtor in its reply further stated that it is incorrect to allege that the corporate debtor has not given a reply to demand notice and has not raised the dispute of unpaid operational debt - The Appellant has given sufficient evidence to show the delivery of demand notice. There is no specific denial of service of demand notice. The corporate debtor has itself stated that in reply to the demand notice, he had raised the dispute of unpaid operational debt. But no document is placed before us to show the existence of dispute before issuance of demand notice. Copy of invoices, demand notice, bank statement all other documents are placed before us which clearly shows that the corporate debtor failed to pay off the operational debt of more than Rs. One Lac, despite service of demand notice.
It is apparent that the Application for Initiation of Corporate Resolution Process was filed on 15th September, 2018, and impugned invoices were raised between 03rd March, 2017 to 27th March, 2017. The Corporate Debtor made the last payment of ₹ 4,08,205/- partial liability on 20th June, 2017, therefore, it is apparent that petition is within statutory period of limitation i.e. 3 years. Thus we are of the considered opinion that the Adjudicating Authority erred in rejecting the application filed u/s 9 of the Code - Appeal allowed.
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