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Insolvency and Bankruptcy - Case Laws
Showing 41 to 60 of 188 Records
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2020 (9) TMI 1082 - NATIONAL COMPANY LAW TRIBUNAL CUTTACK BENCH
Rejection of the resolution plan - CIRP process - section 60(5) of the Insolvency and Bankruptcy Code, 2016 read with Rule 11 of the NCLT Rules, 2016 - HELD THAT:- A reading of the mail issued by the RP and the copy of minutes produced before us prima facie satisfied that RP placed the documents submitted by the applicant and the Plan before the CoC and from the available document as on 18.06.2020, the applicant was found ineligible as one of the directors of the applicant who is also a director of ISL was in the list of defaulter, fall under section 29-A(b) of the Code. Even according to the applicant he was unable to place all the documents relating to disqualification as the bank has not given proof proving that the bank has removed the Ind Synergy Ltd. (ISL) from the RBI defaulters list and an email dated 22.06.2020, issued by Indian Overseas Bank, placed before us at the time of hearing that the bank has removed the said company from the list of defaulters. So as on 18.6.2020 the applicant was a defaulter as per the list. In view of the above said circumstances we do not find any merit in the application.
Application dismissed.
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2020 (9) TMI 1081 - NATIONAL COMPANY LAW TRIBUNAL PRINCIPAL BENCH, NEW DELHI
Approval of the Resolution Plan - Section 31 of the Code read with regulation 39 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 - HELD THAT:- There appears to be no discrimination in the resolution plan in respective class of creditors, as same treatment is provided to similarly situated each class of creditors. So long as the provisions of the Code and the Regulations have been met, it is the commercial wisdom of the requisite majority of the Committee of Creditors which is to negotiate and accept a resolution plan, which may involve differential payment to different classes of creditors - As a sequel to the aforesaid discussion it is seen that clause (b) of sub-section (2) of Section 30 of the Code stands satisfied.
All the requirements of Section 30(2) are fulfilled and no provision of the law for the time being in force appears to have been contravened - In respect of provisions of Regulation 39 (4) a copy of performance security as deposited by resolution applicant has been placed on record. It seen that Bank Guarantee of ₹ 2 Crores issued by DCB Bank cover from 29.02.2020 to 28.11.2020 has been submitted by resolution applicant - Resolution Professional has confirmed compliance of Section 38(2) and (3) in the compliance filed alongwith the application.
Resolution plan is approved - application allowed.
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2020 (9) TMI 1080 - NATIONAL COMPANY LAW TRIBUNAL KOLKATA BENCH
Issuing directions to the respondent/IRP, to refrain from creating "undue pressure" upon him and "harassing" him, given his age, by threats and or other means, and compel him to support the respondent during the currency of this pandemic on the pretext of CIRP timelines etc. - HELD THAT:- The applicant/CMD and all other directors and personnel were legally bound to extend all types of assistance and cooperation to the RP in the performance of his statutory duties assigned to him by the Code, and any hindrance or obstruction caused or intended to be caused by the CMD/directors and other personnel shall subject them to legal consequences. None of the contentions raised and the allegations levelled by the applicant has been able to convince us. The applicant being 62 years, if unable to himself do, could have directed some other director or personnel to provide access to the office premises so that the RP could have taken possession of the relevant record. He was also legally duty-bound to provide all the detailed information and records, including the sale deeds relating to Jaipur property and documents relating to lease and shareholding of the Australian Company. The lockdown had started about two months after the order of CIRP had been passed by this Adjudicating Authority.
If a director or a personnel of the Corporate Debtor does not cooperate or creates hindrance or disobeys the instructions of the RP, the law is not toothless and can deal with him/them in a stringent manner. The applicant has acted in a most unruly manner, when, instead of cooperating with the instructions of the RP, he has chosen to level false and frivolous allegations against the RP, and attributing motives and using the unacceptable language, like "HARASSMENT" AND "UNDUE PRESSURE", without realizing that the RP is issuing instructions in performance of his statutory duties. The applicant should have realized that he was duty-bound to provide all the assistance and cooperation to the RP in taking IMMEDIATE custody of all the assets and records, and his failure or reluctance in doing so may land all the directors of the company in trouble.
Application dismissed.
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2020 (9) TMI 1079 - NATIONAL COMPANY LAW TRIBUNAL MUMBAI BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Debt or not - novation of Contract or not - pending civil suit for recoveries of the amount dues before the Hon'ble Bombay High Court - HELD THAT:- While admitting the petition under Section 7, the only aspect relevant is that there is a debt and default and in the instant case, we find an express provision and obligation of repayment under the Debenture Trust Deed and further that the Corporate Debtor defaulted in paying monies under the Debenture trust deed and also under the Pari Passu agreement executed by the parties to facilitate and secure payment of monies due to the Petitioner. The primary agreement of loan namely the Debenture Trust Deed executed by parties under which the Debentures were issued to the Debenture Holders was sought to be confirmed by execution of Pari Passu Agreement and therefore it can be said that two distinct Agreement ensures to the benefit of petitioner's right of receiving payments and non-payment of monies by the Corporate Debtor or PNB demonstrates a clear liability and default, thus an action to initiate CIRP can be triggered.
The nature of Debt is a "Financial Debt" as defined under section 5(8) of the Code. It has also been established that there is a "Default" as defined under section 3(12) of the Code on the part of the Debtor. The two essential requirements, i.e. existence of 'debt' and 'default', for admission of a petition under section 7 of the I&B Code, have been met in this case.
Petition admitted.
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2020 (9) TMI 1078 - NATIONAL COMPANY LAW TRIBUNAL NEW DELHI BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- Section 9 of the IBC Code 2016 says that after the expiry of period of 10 days from the date of delivery of the notice or invoice demanding payment under Section 8(1) IBC. if the Operational Creditor does not receive the payment from the Corporate Debtor or notice of the dispute has not been raised by the Corporate Debtor then the Operational Creditor may file an application before the Adjudicating Authority.
Corporate Debtor has not raised the dispute or notice of dispute as required under Section 8(2) of the IBC within 10 days from the date of receipt of demand notice hence, of course, after filing the reply to the demand notice he has raised dispute that Operational Creditor has charged abnormal, unjust and exorbitantly high price from the Corporate Debtor for the service and in support of that they have enclosed the What's app communication being made between tone VM and Hindustan Naresh Yadav since, notice of dispute has not been raised within the period prescribed under Section 8(2) of the IBC, therefore, in our considered view that cannot be taken into consideration when the Corporate Debtor in response to summons appear and filed the reply.
The Corporate Debtor has not denied this fact that service has been rendered by the Operational Creditor the only grievance of the Corporate Debtor is that Operational Creditor has charged abnormal, unjust and exorbitantly high price from the Corporate Debtor, we have already held that Corporate Debtor has not raised the dispute by filing reply within 10 days as prescribed under Section 8(2) of the IBC, rather filed the reply after 10 days of the delivery of demand notice. Moreover, we held that What's app communication is in between Hindustan Media Ventures Ltd. and Corporate Debtor and not with the Operational Creditor and except that there is no other document to show that record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoice in relation to such dispute.
In view of Section 9(5)(i)IBC, the Adjudicating Authority has to see that the application is complete and there is no payment of the unpaid operational debt. the invoice or notice for payment to the corporate debtor has been delivered by the operational creditor and no notice of dispute has been received by the operational creditor or there is no record of dispute in the information utility: and if these are established by the Operational Creditor then Adjudicating Authority has no option but to admit the application - in the case in hand it has been established by the Operational Creditor that there is no payment of unpaid operational debt, the invoice or notice for payment to the corporate debtor has been delivered by the operational creditor and no notice of dispute has been received by the operational creditor within 10 days from the receipt of demand notice or record of dispute in the information utility.
Application admitted - moratorium declared.
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2020 (9) TMI 1077 - NATIONAL COMPANY LAW TRIBUNAL INDORE BENCH
Liquidation of Corporate Debtor - Section 33(1), 33(2) & 34(1) of the Insolvency & Bankruptcy Code - HELD THAT:- It is noted that the Corporate Debtor was admitted in to Corporate Insolvency Resolution Process - It is found that, no Resolution Plan has been received during Corporate Insolvency Resolution Process nor EOI's have been received. In these circumstances, there remains no other option but to pass an order of Liquidation of the Corporate Debtor and this has also been decided by the Committee of Creditors in its meeting dated 26.09.2019 with 100% voting. Considering the factual situation of the matter and applicable legal provision(s), to be ordered that company to be liquidated. This to be further ordered that the Resolution Professional shall act as 'Liquidator'.
Application allowed.
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2020 (9) TMI 1076 - NATIONAL COMPANY LAW TRIBUNAL , GUWAHATI BENCH
Directions upon the promoters, directors of the corporate debtor to hand over the management of the affairs of the company for smooth running and completion of the CIRP - HELD THAT:- It is certain that the directors of the CD not giving maximum assistance to see that their company is to be resolved with in the timeline. It is submitted by the RP that CD is an MSME, and nothing prevent them in submitting any viable resolution plans and that no such plan also forthcoming from them. As per section 19 of the Code the directors of the CD and any other person associated with the management of the CD shall extend all assistance and cooperation to the IRP as may be required by him in managing the affairs of the CD. Being satisfied that the directors and their associates are not inclined to extend cooperation to the IRP this is a fit case wherein directions as prayed for is to be issued.
The directors of the suspended board of the CD is directed to cooperate with the IRP and to provide all assistance to him to complete the CIRP In time - auditors are hereby directed to complete the transaction audit immediately, preferably within two weeks from the date of receipt of this order by way of email. RP is directed to serve a copy to the auditors on receipt of the order by him.
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2020 (9) TMI 1075 - NATIONAL COMPANY LAW TRIBUNAL , CHANDIGARH BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - time limitation - HELD THAT:- Reading Section 9 with Section 5(20) and 5(21) of the Code, application under Section 9 of the Code can be filed by a person who has a claim in respect of the provision of goods and services. The application is based on the operational creditor neither receiving payment from the corporate debtor nor notice of dispute under Section 8(2) of the Code. There is no provision in Section 9 of the Code read with Section 5(20) and Section 5(21) of the Code for an application being moved to the Tribunal on the basis of a decree. The decree may be evidence of non-payment or of default but by itself, a decree cannot give rise to and form the basis of an application under Section 9 of the Code. Section 3(10) of the Code gives the definition of creditor but it is only an operational creditor who has the right to file an application for initiating CIRP in the case of the corporate debtor. The submissions made by ISMT Limited cannot therefore, be accepted.
Time Limitation - HELD THAT:- The payment by HIM Teknoforge Limited was made conditionally and was subject to acceptance of the outstanding amount payable being only ₹ 7,31,813/-. This condition was not accepted by ISMT Limited which filed an application under Section 9 of the Code for the amount of ₹ 83,12,760.91 with interest. The conditional payment cannot therefore, have the effect of being an acknowledgment of the debt claimed of ₹ 83,12,760.91. Moreover, even if it is presumed to be an acknowledgment of debt, it is beyond the period of three years from the date on which the debt became due and therefore, a fresh period of limitation is not available - plea of the learned senior counsel for HIM Teknoforge Limited that the present petition is not filed within the limitation period is accepted.
The application under Section 9 of the Code is therefore, rejected on the ground that it is barred by limitation and alternatively, on the ground that notice of dispute was received by the operational creditor - Application disposed off.
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2020 (9) TMI 1074 - NATIONAL COMPANY LAW TRIBUNAL, BENGALURU BENCH
Maintainability of application - initiation of CIRP - core issue is the alleged default of the Corporate Debtor in not finally granting the "Performance Shares" to the Petitioner - HELD THAT:- The conditions as laid out in the Rules for the final grant and conveyance of such shares would indicate whether any right or claim arose in the hands of the Petitioner/Operational Creditor with regard to such Performance Shares. The "Rules of the Performance Share Plan", a copy of which has been placed on record, shows that Essilor International had adopted the Rules regarding Performance Shares on 02.12.2015, as authorised by the EGM held on 05.05.2015, for the benefit of its Non-French employees and executive officers, in which they could participate, being a part of the Group. However, any grant of the same was at the discretion of Essilor Luxxotica, as the Company is presently called, and these are applicable to the entire Group, including employees of Essilor India. Broadly speaking, Performance Shares are granted free of cost, and are in the nature of incentives to retain employees, in lieu of their loyalty and to strengthen the Company brand, by linking them to future payment, subject to various conditions. Their legal framework is governed by the provisions of the French Commercial Code relating to free share grants. Some of the important clauses of the Performance Plan, for our purpose, and for our summary examination, are Clauses III, IV and V.
Clause III deals with the "Vesting Period". The process starts with a meeting of the Board of Directors for making a conditional grant of Performance Shares to certain employees. This is the "Grant Date". This also defines the Initial Reference Price and the Average Price, which are required for assessing the Performance Condition subsequently. This clause also stipulates the conditions under which shares are delivered to the allotee on the "Final Delivery Date". Prior to this final delivery date there is a "vesting period" starting with the Grant Date and ending with the Final as a Delivery Date, which may be the 4th anniversary of the Grant Date or the Performance Achievement of the Date; or the sixth anniversary of the Grant Date, which ever happens first. Hence, until the vesting period ends as above, it is apparent that there is no right to or ownership conferred upon the Employee vis a vis the Performance Shares.
Coming to the facts of the Petitioner's case, it is seen that Performance Shares were awarded to the Petitioner on 02.12.2015, 22.09.2016 and 03.10.2017. As per Clause III of the Rules, the Vesting Period in the case of the Petitioner would have ended on, and he would have become eligible for finally earning the Performance Shares in four years, i.e. in the years 2019, 2020 and 2021 respectively. The conditions required to be fulfilled were two, namely the Presence Condition of the employee and the Performance condition of the shares. But he was admittedly not an employee in the Respondent/Corporate Debtor Company in 2019, having finally left the Company on 31.12.2018 after availing Garden Leave subsequent to acceptance of his resignation on 21.09.2018. Thus, as per Clause IV the Petitioner beneficiary had seized to hold any employee or corporate officer position whatsoever within the Essilor Group, to whom these Rules applied, and hence he had forfeited his right to the final earning of the Performance Shares or to any indemnity therefor - Such date of forfeiture of the right to a definitive grant of the Performance Shares was the date of the definitive cessation of all employee or corporate officer functions, i.e. 31.12.2018 in the case of the Petitioner.
It becomes clear on the face of the available facts and the Rules governing Performance Shares, as mentioned above, that the Presence Condition referred to in Clause IV was not met and the Petitioner was ineligible for the same - the Petitioner cannot take the plea that he had retired in the normal course at the age of 58 years and was eligible for the Performance Shares by virtue of the Exception to Clause IV, being unaware of the extension letter. It is also seen from the Notice dated 27.07.2016 that it was circulated to all Regional and Branch Offices, all Notice Boards and All Employees. No material has been brought on record by the Petitioner to establish that the said Notice was fake, non-existent, an afterthought or issued only in his case to deny him the benefits claimed.
The Petitioner was not eligible for the Performance Shares, going by the plain facts of the case, and hence there was no debt or default on the part of the Respondent/Corporate Debtor. However, while the summary proceedings under the Code lead us to this conclusion, and there are disputes raised by the Petitioner that cannot be investigated here, we may add that this order will not take away the rights of the Petitioner to pursue the same under any other law or forum, if permissible - Petition dismissed.
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2020 (9) TMI 1073 - NATIONAL COMPANY LAW TRIBUNAL , HYDERABAD BENCH
Direction for change of IRP in respect of M/s. Inter Labs (India) Private Limited / Corporate Debtor - exclusion of time from 22.08.2017 till date of appointment of IRP from the CIRP period - HELD THAT:- The Adjudicating Authority can exclude a certain period for the purpose of counting total period of CIRP, if circumstances justify such exclusion.
Here is the case, where considerable time of more than two years have been lost due to reasons stated aforesaid. We are of the considered view that since admission order has been restored to the file of this Tribunal by the Hon'ble Supreme Court, the CIRP to start afresh from today.
The Corporate Insolvency Resolution Process to start afresh from today i.e. 25.02.2020. That the public announcement of the initiation of Corporate Insolvency Resolution Process shall be made immediately as prescribed under section 13 of Insolvency and Bankruptcy Code, 2016 - Application allowed.
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2020 (9) TMI 1072 - NATIONAL COMPANY LAW TRIBUNAL , BENGALURU BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- For an application filed U/s 7 of the Code, the parameters/requisite conditions to be considered by the Adjudicating Authority is whether the default is committed for the debt or not, and whether the Application is filed in accordance with law by suggesting suitable IRP or not.
There is no dispute with regard to sanction of loans in question by the Bank. Moreover, it is not the case of Respondent that the Loans in question were not sanctioned and has committed its defaults. Payment of some part of instalments of loan, not accepting its proposal of settlement by the Bank etc. are not tenable grounds in a Petition filed U/s 7 of Code. And requesting the Bank for settlement of claim in question itself show that the Debt in question is established and default of Account of Respondent is not in dispute - Petition admitted - moratorium declared.
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2020 (9) TMI 1071 - NATIONAL COMPANY LAW TRIBUNAL , CHANDIGARH BENCH
Additional time period of 75 days sought for completion of the CIRP - permission to CoC members, who abstained from voting to submit their vote on approval of the resolution plan or liquidation of the corporate debtor - HELD THAT:- The Code has provided certain timelines for completion of the CIRP with a specific object and purpose. The Hon'ble Apex 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] held that 330 days is not mandatory and in exceptional cases, and where the circumstances warrant, the same can be extended for a further reasonable period. But in the instant case, one of the CoC member, i.e. SBI when this Adjudicating Authority specifically provided opportunity to consider the resolution plan of Maritime Trade Corporation by extending time and by issuing certain specific directions, having failed to act and having allowed to lapse the maximum period provided under the Code, now through the resolution professional seeking extension of further time and also for issuance of further directions for convening of the meeting of the CoC for consideration of the resolution for approval of the resolution plan of the Maritime Trade Corporation.
Let the resolution professional take out the notice to State Bank of India and serve the same and file affidavit of service accordingly. State Bank of India shall file an affidavit explaining the day-to-day delay from 15.11.2019 on which date, the last CoC meeting was held under the orders of this Adjudicating Authority, to till date and also to explain why exemplary costs are not imposed on it for its aforesaid conduct.
List the instant CA on 06.03.2020.
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2020 (9) TMI 1070 - NATIONAL COMPANY LAW TRIBUNAL, JAIPUR BENCH
CIRP Process - validity of the order of the Presiding Officer under the Payment of Wages Act, 1936 - Scope of Section 238 of the IBC, 2016 - moratorium was declared u/s 14 - violation of provisions of Section 14 as well as Section 238 of IBC, 2016 - HELD THAT:- The Hon'ble Supreme Court has clearly held in the case of Alchemist Asset Reconstruction Company Ltd. Vs. M/s. Hotel Gaudavan Pvt. Ltd. [2017 (12) TMI 1107 - SUPREME COURT] held that the steps that have to be taken under the Insolvency Code will continue unimpeded by any order of any other Court - The ratio decidendi of the Hon'ble Supreme Court is binding on all subordinate authorities of the State vide Articles 141 & 144 of the Constitution of India.
The order passed by the Presiding Officer under the Payment of Wages Act, 1936, is still-born and a nullity in law and cannot stand in view of the foregoing narrative and the provisions of law as enunciated in this order and consequently stands invalidated - A copy of this order may be served on the Presiding Officer so as to take note of this Tribunal's order and to refrain from acting against the interest of justice.
Application allowed.
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2020 (9) TMI 1036 - TELANGANA HIGH COURT
Maintainability of application - CIRP process - It is not the case of the Writ Petitioners that there is any lack of jurisdiction on the part of NCLT in entertaining the Company Petition and it has merely contended that NCLT erred in passing the impugned order - HELD THAT:- It is the contention of the petitioners herein that respondent Nos.4 and 5 had manipulated and falsified the accounts and misappropriated the funds apart from committing fraud. Therefore, these are the aspects which can certainly be considered by NCLAT, if appeals were preferred by the petitioners under Section 61 of the Code to it.
In this view of the matter, we are not inclined to entertain the Writ Petition since the petitioners have an effective alternative remedy before the NCLAT under Section 61 of the Code - Granting liberty to the petitioner to avail the said remedy of appeal under Section 61 of the Code, this Writ Petition is dismissed - Petition dismissed.
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2020 (9) TMI 1035 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational debt or not - time limitation - Section 8 of the IBC, 2016.
Whether the debt mentioned in the Demand Notice is an operational debt and whether there is default in its payment? - HELD THAT:- A conjoint reading of Sections 8 and 9 of the IBC makes it incumbent on the operational creditor to show the amount of debt in default and the date of default clearly and should also provide credible proof about the purchase and supply of goods and services as claimed. Hence the operational creditor’s claim of debt of ₹ 50,32,028/- and default in payment of the cost relating to supply and installation and managed professional services is not established as required in Sections 8 and 9 of the IBC - The Corporate Debtor, in his reply dated 03.12.2018 to the Demand Notice, has accepted placing purchase order of 30 nos. GPS vehicle trackers and receiving the supply. Since the Corporate Debtor has accepted the supply pending payment relating to these 30 vehicle trackers; hence it is an admitted Operational Debt.
Whether the application filed under Section 8 of the IBC, 2016 for the relevant operational debt is within limitation? - HELD THAT:- It is for the Resolution Professional and the Committee of Creditors to consider all these claims received in the process of CIRP. We also hope that the stakeholders as well as the IRP and COC shall keep in mind that the IBC is a beneficial legislation which is not meant to put going concerns/entities in resolution for small acts of commission or omission which can be rectified - The Corporate Debtor has raised the issue of not been accorded an opportunity to advance oral arguments by the Ld. Adjudicating Authority on the date of final hearing i.e. 06.12.2019. It is seen by us that the Ld. Adjudicating Authority has, in the interest of adhering to timelines given in IBC, considered the oral arguments made by the Ld. Counsel of the Corporate Debtor made on the previous date of hearing. He has decided to close the arguments on 06.12.2019 and pass the final judgment in the case after taking into account all the submissions, which include written and oral submissions, and hence it cannot be said that the Corporate Debtor was denied reasonable opportunity to be heard.
There are no infirmity in the order of the Learned Adjudicating Authority. The interim stay order relating to non-constitution of the Committee of Creditors passed by this Tribunal on 03.02.2020 is hereby vacated and the Interim Resolution Professional shall take further action with regard to the Corporate Insolvency Resolution Process.
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2020 (9) TMI 1034 - NATIONAL COMPANY LAW TRIBUNAL , INDORE BENCH
Payment ot dissenting Financial Creditors - compliance of the provisions of Section 30(2)(b)(ii) of the Insolvency and Bankruptcy Code, 2016 r/w Regulation 38(ii)(b) of the CIRP Regulations - HELD THAT:- The amended Section 30(2)(b)(ii) r/w amended Regulation 38 stipulates payments in priority to the dissenting Financial Creditors. The Applicant submits that Explanation 2 to Section 30(2) in terms stipulates that these amendments would apply even to the existing proceedings pertaining to the approval of the resolution plan. Admittedly, the resolution plan in relation to the Corporate Debtor was not approved as on the date of t amendment in terms of Section 31 of the Code.
The Applicant is constrained to prefer the present application seeking appropriate directions against the Respondents - This Adjudicating Authority may be pleased to declare and order the Resolution Plan in relation to B.P. Food Products Private Limited, the Corporate Debtor, to the extent it does not provide payment of dues of dissenting Financial Creditor to be paid in priority, is liable to be rejected as it is not in conformity with Section 6 of the Insolvency and Bankruptcy Code (Amendment) Act, 2019 r/w Section 30(2) of the Code r/w Regulation 38 of CIRP Regulations, in the interest of justice and equity.
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2020 (9) TMI 1033 - NATIONAL COMPANY LAW TRIBUNAL , AHMEDABAD BENCH
Liquidation of Corporate Debtor - section 33(1), 33(2) and 34(1) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- From the records, it is found that no viable and feasible Resolution Plan has been received so far and Corporate Debtor has no running business. Therefore, the CoC has resolved for liquidation of the Corporate Debtor vide its 3rd meeting dated 12.12.2019. It is also to be noted that this Adjudicating Authority has no jurisdiction to interfere in the commercial wisdom of the CoC.
The moratorium declared under Section 14 of the IB Code shall cease to have effect from the date of the order of liquidation - Liquidator is further directed to issue public announcement stating that the Corporate Debtor is in liquidation - application allowed.
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2020 (9) TMI 1032 - NATIONAL COMPANY LAW TRIBUNAL , INDORE BENCH
Approval of Resolution Plan - Section 30 of IBC - HELD THAT:- The arguments/opinion of the Learned counsel of the RP at the Bench's questions about irregularities observed in the Compliance Certificate should not matter much as long as the Members of the Bench are honest and sincere to the pie. Moreover, the Learned Lawyer has not sought for change of Bench in this matter. It may not be proper, in my opinion, to fall prey to the improper view/opinion/arguments of the Learned lawyer. Hence, this Adjudicating Authority may take a lenient view at the expression of the learned lawyer on the clarifications sought by this Adjudicating Authority in the interest of Justice and achievement of the objectives of the IBC.
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2020 (9) TMI 999 - NATIONAL COMPANY LAW TRIBUNAL KOLKATA BENCH
Direction for payment of outstanding amount of CIRP expenses and the contribution towards the liquidation cost - Section 60(5) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- According to the Ld. Counsel for R4 it is the CoC members objected to the inclusion of R4 in the CoC even if it is an unsecured creditor. However, dispute as to whether the R4 is a financial creditor or not has not been settled by the CoC and the said dispute is now referred to the AA and two IAs in that regard are pending. According to her without settling the said dispute, R4 may not be compelled to pay its part of share towards the Cost of CIRP and liquidation. I found some merit in her submission upon a reference to the copy of minutes she brought to my notice.
IFCI has already been included as one of the Financial Creditors at the instances of IRP after verifying its claim. According to the liquidator IFCI is a financial creditor since the debenture holder is a creditor or a lender of the CD company. Though it is certain that convertible debentures are long term debt instruments issued by a company that can be converted into equity shares of the company on a future date, since the dispute as to whether it is a debt instrument or not is pending for consideration before the AA, I am not deciding the said dispute here in this application. However being satisfied that IFCI's inclusion as a member in the CoC is disputed by the remaining financial creditors, it appears to me that IFCI cannot be compelled to contribute its part of share towards the CIRP and Liquidation cost. Part payment voluntarily made by the IFCI does not bar it from disputing its liability to pay the amount as demanded by the liquidator.
However, to have a fare and just consideration of the objections now raised by the IFCI it appears to me that, that part of the amount to be contributed by the IFCI in accordance of the voting share already determined, by the RP is to be deposited in an interest bearing account of the CD in the name of the liquidator so as to realise the amount by him in case the inclusion of the R4 is found legal and proper. If found it is to be excluded, the amount in deposit is to be refunded to it.
Application disposed off.
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2020 (9) TMI 998 - NATIONAL COMPANY LAW TRIBUNAL , MUMBAI BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Debt or not - existence of debt and dispute or not - HELD THAT:- This Bench noted a very queer aspect in the demand notice in respect of the outstanding loan which was served on 21.08.2017 by the Petitioner to Mr. Sunil Kewalramani (son and POA holder of the Petitioner) among themselves. The Petitioner sends the Demand Notice which is replied by Mr. Sunil Kewalramani (son and POA holder of the Petitioner) on behalf of the Corporate Debtor Company. Here, the Bench notes that both of them are Directors on the board of the Corporate Debtor Company - this bench clearly finds unlawful collusion and misuse of the position by the Petitioner. This also brings out the fact that there is no difference between the Petitioners and the Corporate Debtor as the Petitioner is Promoter and in control of the day to day affairs of the Corporate Debtor Company. This Bench notes that even in the submissions, the Petitioner have not denied the fact that the demand notice have been issued, received and replied amongst him and his son only.
This Bench also has come to a conclusion that the effective control of the Corporate Debtor Company has remained with the Petitioner only. This Bench also fairly concludes that the whole process of issuing, receiving and replying of the demand notice by the Petitioner and Mr. Sunil Kewalramani (son and POA holder of the Petitioner) has been without any knowledge of the other Directors and therefore clearly shows malicious intention of the Petitioners. Therefore, the Bench concludes that there is not been any “Effective service of Demand notice”.
Whether the amount being mentioned by the Petitioner in claim of ₹ 47,16,667/- can qualify as a financial debt or not? - HELD THAT:- In this case, the Bench takes note of the fact that there is no written terms and conditions for repayment of interest. Even the Petitioner in his submissions has mentioned that there was no interest chargeable on this account, nor there was any due date of payment. A perusal of the records also shows that no interest has been created in the Books of Accounts of the company. Therefore, there is no time value of money in terms of Section 5(8) of the Code. Neither there is time value of money nor there is due date of repayment - This Bench therefore has no hesitation in concluding that it does not fall under Section 5(8) of the Code and cannot be termed as financial debt.
Petition dismissed.
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