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Insolvency and Bankruptcy - Case Laws
Showing 81 to 100 of 188 Records
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2020 (9) TMI 894 - NATIONAL COMPANY LAW TRIBUNAL , BENGALURU BENCH
Maintainability of application - initiation of CIRP- Corporate Debtor failed to make repayment of dues - recovery of alleged outstanding dues - appropriate forum or not - time limitation - HELD THAT:- It is settled position of law, that the provisions of the Code cannot be invoked for recovery of alleged outstanding amount, that too, after long lapse of time, without explaining the delay caused.
The Hon'ble Supreme Court in the case of Mobilox Innovations Private Limited vs. Kirusa Software Private limited [2017 (9) TMI 1270 - SUPREME COURT ], has inter-alia, held that IBC, 2016 is not intended to be substitute to a recovery forum - It is not in dispute that the Petitioner has received part payment and the instant Petition is filed to recover the balance amount which is against the object of the Code and the Law.
The instant Company Petition is filed with an intention to recover the alleged outstanding due, which is not permissible under law - Moreover, the Petitioner has not explained the reasons for delay for issuing the Demand Notice belatedly i.e. 24.10.2019, and filing this instant Application only on 10th February 2020, even though the Demand Notice specifically mentioned that the Respondent has to pay the outstanding due or to raise the dispute, within a period of 10 days from the date of receipt copy of Demand Notice. It is not in dispute that law of limitations is applicable to the provisions of the Code - Therefore the instant Petition is not maintainable either on facts and or law and thus it is liable to be dismissed.
Petition dismissed.
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2020 (9) TMI 893 - NATIONAL COMPANY LAW TRIBUNAL , ALLAHABAD 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:- The application filed on behalf of financial creditor/Applicant under Section 7 of IBC is found complete. The present petition being filed in 04.02.2020 is well within limitation and the date of default is 31st August, 2017 is much prior to the amendment made in Insolvency and Bankruptcy Code on 05th of June, 2020 - in the present application the date of default in the present application is 31st August, 2019, thus the amendment made will not be applicable in the present petition.
This adjudicating Authority is inclined to admit this petition and initiate CIRP of the Respondent Company. Accordingly, this petition is admitted - moratorium declared.
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2020 (9) TMI 892 - NATIONAL COMPANY LAW TRIBUNAL , NEW DELHI BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - Operational Debt or not - existence of debt and dispute or not - HELD THAT:- The unpaid petitioner, who rendered services to the Corporate Debtor, comes within the purview of 'Operational creditor' - The procedure in relation to the Initiation of Corporate Insolvency Resolution Process by the "Operational Creditor" is delineated under Section 9 of the Code. The present application filed by operational creditor, accordingly, has to be dealt with in terms of Section 9 of the Code.
Sub-section (1) of Section 9 mandates filing of the petition only after expiry of the period of 10 days from the date of delivery of notice or invoice demanding payment under sub-section (1) of Section 8 - In the present case admittedly the demand notice in Form-3 as per Section 8 of the Code was sent on 09.10.2019. 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 has filed its reply acknowledging the outstanding amount and expressed its inability to pay the debt due to financial difficulty.
The present application under Section 9 of the Code has been filed in requisite Form-5, wherein it was specifically mentioned that in the reply received from the corporate debtor there has been admission of debt and default and no dispute was raised against the claim of the applicant operational creditor. The application under Section 9 is thus complete and the required particulars have been furnished along with details of subsistence of default - in compliance of sub-section (3) (b) and (C) of Section 9 of the Code, the petitioner has affirmed that respondent corporate debtor has not raised any dispute in respect of the unpaid operational debt.
There is a clear admission of debt and default and therefore there is no need to comply with any additional requirement as provided in Clauses (d) and (e) of sub-section (3) of Section 9 of the Code - In the present application all the aforesaid requirements have been satisfied. 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.
Application admitted.
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2020 (9) TMI 891 - NATIONAL COMPANY LAW TRIBUNAL , CHENNAI BENCH
Liquidation of Corporate Debtor - Section 33(2) of the IBC, 2016 - HELD THAT:- Since, in the 5th CoC meeting held on 13.01.2020, the Committee of Creditors has deliberated about the current affairs of the Corporate Debtor and also on the future course of action to be taken and as such the CoC was unwilling to consider the Resolution Plan and extend the time limit for completion of the CIRP and based on its commercial wisdom has decided to liquidate the Corporate Debtor and thus by taking into consideration the provisions of Section 33 of IBC, 2016 and in the absence of any opposition to the Application from the Promoters/Directors of the Corporate Debtor and also guided by the decision of the Hon'ble Supreme Court in the matter of Mr. K. Sasidharan -Vs- Indian Overseas Bank [2019 (2) TMI 1043 - SUPREME COURT ] this Tribunal orders for the liquidation of the Corporate Debtor.
The Liquidator of the Corporate Debtor is directed to carryout the liquidation process subject to the directions issued - Liquidator shall strictly act in accordance with the provisions of IBC, 2016 and the attendant Rules and regulations including Insolvency and Bankruptcy (Liquidation Process) Regulations, 2017 as amended upto date enjoined upon him.
Application disposed off.
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2020 (9) TMI 890 - NATIONAL COMPANY LAW TRIBUNAL , CUTTACK BENCH
Approval of Resolution Plan - payment of award amount - HELD THAT:- Since the petitioner says that they have 30 per cent of shareholding in the first respondent company and have also filed application under 241- 242 of the Companies Act, this application ought to be decided in the interest of justice.
In IA No. 17/CTB/2020, the first respondent shall not distribute the award amount to the second respondent until further orders of this Tribunal. The respondents shall file their counter on or before 31.03.2020 in the registry after serving the copy to the other side. Petitioners shall file their rejoinder, if any on or before 13.04.2020.
Post the matter on 17.04.2020 for further hearing.
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2020 (9) TMI 888 - NATIONAL COMPANY LAW TRIBUNAL, DELHI BENCH
Condonation of delayed 400 days in filing petition - recovery of outstanding dues - Section 5 of the Limitation Act - HELD THAT:- The applicant has filed an application under Section 9 of the IB Court, which is registered as CP(303) 2020 and in part 4 of the application at page 12 the application mentioned the default period is from April 2012 and May 2012 and at page 16, the applicant mentioned the date from which the debt became due that is 12th July 2012 to 6th January 2020 - it is found that last invoice is dated 3rd July 2012 and the last payment was made in the month of July 2012 as mentioned at page 12 of the application. We further find, thereafter in the year 2015, a company petition being Company Petition No. 6 of 2015 was filed before the Hon'ble Allahabad Bench which was disposed of 19.11.2018 and the present application is filed on 16.01.2020.
The right to apply accrues in the month of July 2012, when the last payment was made by the corporate-debtor to the applicant.
As per the contention of the learned counsel appearing for the applicant the company petition was filed, on 10th July 2015, whereas the right to apply accrue on 12th July 2012 which means the company petition was filed, according to the submissions of the learned counsel appearing for the applicant, one day prior to the limitation period of three years comes to an end, and if we shall exclude the period spent during that proceeding under Section 14(2) of the Limitation Act, then, the applicant was required to file the present applications on 20th November 2018 that is on the next date of disposal of the company petition by the Hon'ble Allahabad High Court. But the same is filed on 16.01.2020, therefore, we are of the considered view that even we shall exclude the period spent by the petitioner in the legal proceeding before the Hon'ble Allahabad High Court from 10th July 2015 to 19th November 2018, the present petition is barred by limitation.
Mere plain reading of the provisions shows that Section 5 of the Limitation Act is not applicable in condoning the period, where, there is a specific provision under the Limitation Act, which prescribe the period for filing any applications, which relates to recovery of money within such period the same can be condoned only either Under Section 14 or 18 of the Limitation Act, as we have already held that even if we shall exclude the period spent in the litigations before the Hon'ble Delhi High Court, the present application is barred by limitations, therefore, we are unable to accept the contention of the applicant that the delay is liable to be condoned under Section 5 of the Limitation.
There are no option but to reject the condonation application of the applicant to condoning the delay either under Section 5 of the Limitation under Section 14 of the Act, accordingly, we hereby reject the prayer of the applicant but condone the delay under Section 5 of the Limitation Act, and so far exclusion of the period spent during the proceedings before the Hon'ble Allahabad High Court is concerned, we have already held that even if we shall exclude that period, the present application is barred by limitation, accordingly, the application filed by the application under Section 9 of the Act, is not maintainable since it is barred by limitation, hence the same is hereby dismissed.
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2020 (9) TMI 887 - NATIONAL COMPANY LAW TRIBUNAL , HYDERABAD BENCH
Order directing IDBI Trusteeship Services Limited (Security Trustee) refraining from issuing instructions to IDBI Bank Limited to make any payments to creditors of the Corporate Debtor from monies available in the Trust and Retention Accounts - HELD THAT:- It is true that the present application is filed by the applicant before admission of his application filed under section 7 of I&B Code against the corporate debtor. The applicant is seeking interim order with regard to the amount lying in the Trust and Retention Account maintained in respondent No. 2-Bank. The only grievance of the applicant is that money is to be applied to all the creditors, if petition under section 7 of the I&B Code is admitted. IRP/ RP will take control of the amount lying in the account and the same forms asset of the corporate debtor. The applicant is seeking a direction to maintain status quo in respect of the money lying in the Trust and Retention Account.
The learned counsel for respondent No. 3 has drawn attention to various documents, particularly, Inter-creditor Agreement and Trust and Retention Account and also No Objection Certificate given by the applicant. It is not a dispute between the applicant and the corporate debtor. The documents, to which the applicant is a party would go to establish that the amount in Trust and Retention Account to be applied at the first instance to the priority lender. When such is the case and applicant being a party to the said agreements, namely, Inter-creditor Account Agreement and Trust and Retention Agreement, then the relief sought by the applicant cannot be granted in favour of the applicant.
There is no dispute that the applicant is also a party to the said agreements. Then the same are binding on the applicant and the applicant cannot be permitted to seek relief against the terms of the agreements - application dismissed.
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2020 (9) TMI 844 - CALCUTTA HIGH COURT
Validity of SCN - inclusion of name of petitioners in the list of wilful defaulters as per the Reserve Bank of India (RBI) Guidelines - whether the Company and the petitioners can be subjected to proceedings for identification of Wilful Defaulters under the RBI Master Circular, 2015 in the face of the ongoing CIRP under the Insolvency and Bankruptcy Code, 2016? - HELD THAT:- Section 14 of the IBC is relevant. Paragraph 1 of the writ petition describes the petitioners as the erstwhile directors as well as the erstwhile promoters and guarantors of the Company, Mohan Motor Udyog Private Limited, which is presently undergoing CIRP by virtue of an order dated 17th March, 2020 passed by the NCLT, Kolkata Bench. By the said order, Moratorium was declared for the purposes as referred to under Section 14 of the IBC. The order of Moratorium is to remain effective from the date of admission till the completion of the CIRP.
Validity of the impugned Show-Cause Notice - Challenge made on the ground that the said notice does not comply with the RBI guidelines relating to wilful defaults by an entity as expressed in the Master Circular which is binding on the respondent Bank - HELD THAT:- Section 29-A (Persons not eligible to be Resolution Applicant) lists the categories of persons who are not eligible to submit a resolution plan and includes a wilful defaulter under the RBI guidelines (clause (b)) as well as “a connected person” enumerated under clause (j) including a promoter of the resolution applicant (the Company in this case). Against these provisions, the case sought to be made out on behalf of the petitioners is that the petitioners would altogether be excluded from participating in the resolution process despite being inextricably linked to the fate of the corporate debtor.
Whether the post of Deputy Managing Director (mentioned as the head of the ‘appropriate committee’ in the impugned notice) is equivalent to that of the Executive Director (under clause 3(a)) of the Master Circular? - HELD THAT:- This court also takes judicial notice of the fact that there are presently no Executive Directors on the Board of the State Bank of India which is comprised of a Chairman, Managing Directors and Directors. As on 7th September, 2020, the Board of Directors of SBI comprises of a Chairman, 2 Managing Directors, 2 Shareholder Directors and 2 Nominee Directors. The State Bank of India Act of 1955 also does not contemplate a post of Executive Director. Therefore, the first contention with regard to an improperly constituted Committee under a Deputy Managing Director instead of the recommended Executive Director, fails.
Allegation that the appointed Committee not applying its mind or making such non-application evident in the Show Cause Notice thus rendering it vulnerable - It is necessary for a Show Cause Notice to disclose the basis of the conclusion arrived at by the Committee under clause 3(a)? - If yes, how can such application of mind/formation of opinion be made apparent on the face of the Show Cause Notice? - HELD THAT:- In the facts of the present case, the contention of the petitioners of the impugned Notice being devoid of any indication of application of mind by the Committee is not acceptable on two grounds. First, the Master Circular does not require it and more important, the Annexure to the Show Cause Notice coupled with the Resolution of the Committee dated 17th June, 2019 provides sufficient material (and particulars specific to the Company of which the petitioners are guarantors) to satisfy that the Committee had indeed fulfilled its mandate under both sub-clauses (a) and (b) of clause 3. One of the most obvious ways in which working of the mind or some sort of deliberation by the persons concerned can be shown is by articulation of the findings arrived at with reference to a meeting (including of minds) where such deliberation palpably took place and the findings being relatable to the materials/evidence before the Committee entrusted with the duty to sift through the evidence to come to the conclusions.
The conduct of the petitioners as would appear from the facts of the present case would further lend credence to the ‘prejudice’ point as considered in Pawan Kumar Patodia; or in other words, whether the petitioners have suffered any prejudice by issuance of the impugned Show Cause Notice. The scheme of clause 3 of the Master Circular (Mechanism for Identification of Wilful Defaulters) contemplates a two-tier system of identification where the decision of the first Committee under clause 3(b) would be subject to review by a second Committee under clause 3(c). Hence, no finality is attached to the decision of the first/identification Committee and more so at the stage of a Show-Cause Notice. Further, the Petitioners in this case received the impugned show-cause notice dated 14th November, 2019 together with the Annexure on 18th November, 2019. The date of receipt would appear from the reply of the petitioners dated 19th December, 2019 to the Show-Cause Notice.
The challenge to the impugned Show Cause Notice dated 14th November, 2020 and the Notice dated 6th August, 2020, fails - Petition dismissed.
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2020 (9) TMI 843 - NATIONAL COM PANY LAW APPELLATE TRIBUNAL, NEW DELHI
Winding up of Corporate Debtor - application under Section 7 of the I&B Code - HELD THAT:- Rule 11 is merely declaratory in the sense that this Tribunal is armed with inherent powers to pass orders or give directions necessa ry for advancing the cause of justice or prevent abuse of the Appellate Tribunal's process. Even in absence of Rule 11 this Appellate Tribunal, being essentially a judicial forum determining and deciding rights of parties concerned and granting appropriate relief, has no limitations in exercise of its powers to meet ends of justice or prevent abuse of its process. Such Powers being inherent in the constitution of the Appellate Tribunal, Rule 11 can merely be said to be declaring the same to avoid ambiguit y and confusion. Having said that, the Rule cannot be invoked to revisit the findings retuned as regards the assertion of facts and pleas raised in the appeal and it is not open to reexamine the findings on questions of fact, how-so-ever erroneous they may be. The mistake/error must be apparent on the face of the record and must have occurred due to oversight, inadvertence or human error.
An application under Section 7 of the I&B Code admitted by the Adjudicating Authority being an independent proceeding has to be decided in t erms of the provisions of I&B Code and the insolvency resolution process has to proceed unhindered and notwithstanding pendency of any other proceedings. The bar only operates against the Corporate Debtor against whom a liquidation order has been made and not to a Financial Creditor or an Operational Creditor. The effect of this would clearly be that in terms of law laid down in 'Forech India Ltd.' application filed by 'SREI Equipment Finance Ltd. (Financial Creditor) under Section 7 of I&B Code would be maintainable. Therefore, there should be no difficulty in arriving at the conclusion that in para 5 of the judgment of this Appellate Tribunal an error has crept in as regards maintainability of application under Section 7 of the I&B Code filed by 'SREI Equipment Finance Ltd.' (Financial Creditor). The error has to be rectified.
Appeal dismissed.
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2020 (9) TMI 842 - NATIONAL COMPANY LAW TRIBUNAL , BENGALURU BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Debt or not - existence of debt and dispute or not - HELD THAT:- The issue do not fall under the provisions of Code. Moreover, there is substantial dispute raised by the Respondent by various legal notices and correspondence exchanged between the Parties as enclosed to the Company Petition. It is also relevant to point out here, as stated supra, there is an arbitration clause available both in MOU and Settlement Deed, to invoke arbitration clause, in case, any dispute arise between the Parties out of implementation of terms and conditions contained in the Deeds in question, so as to settle those issues. However, the Petitioner failed to invoke arbitration clause, if it feels aggrieved by the action of Respondent. It can also invoke appropriate provisions of Companies Act, 2013 if the affairs of Corporate Debtor are oppressive in nature and mismanaging its affairs, failure to implement duly approved deeds etc. Therefore, the instant Petition is filed on misconceived facts and law.
The instant Application is filed with an intention to recover the alleged disputed outstanding amount, arise out of MOU dated 31.03.2018 and Settlement Deed dated 05.04.2018 - the instant Company Petition is liable to be dismissed as not maintainable.
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2020 (9) TMI 841 - 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:- As per Section 10(4) the Adjudication Authority, can admit an Application if the Application is complete and no disciplinary proceedings are pending against the proposed Resolution Professional.
In the instant case, admittedly, the Corporate Applicant has become insolvent by losing its worth having so many claims against it by Financial Creditors and Operational Creditors, as detailed supra. And the instant Company Petition is filed in accordance with law and also suggested a qualified Resolution Professional namely Shri Rakesh Chaturvedi, who has also filed his written Communication in Form-2 dated 10.02.2020, inter-alia declaring that he is a qualified Resolution Professional, he is not serving in any proceedings and there are no disciplinary proceedings pending against him with the Board or Indian Institute of Insolvency Professionals of ICAI. The Shareholders of Applicant Company, in their Extraordinary General Meeting, held on 30.09.2019 passed a Special Resolution by approving to file an Application, U/s 10 of Code by authorising Mr. Sanjay G. Bichu, Managing Director of the Company to take necessary action in the that regard. Accordingly, the instant Application/Petition is filed by seeking to initiate CIRP respect of the Company.
Application admitted - moratorium declared.
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2020 (9) TMI 840 - NATIONAL COMPANY LAW TRIBUNAL , HYDERABAD BENCH
Exclusion of period of 4 days from CIRP period - these were the days when the copy of admission order was not available and the Resolution Professional could not take control of the Corporate Debtor - HELD THAT:- In the present case, it is a matter of record that the RP had to deal with various litigation relating to non-payment of dues by DISCOMS as well as withdrawal of approval of the Power Purchase Agreement from Hon'ble APERC and also had to struggle to run the Corporate Debtor as a going concern in view of suspension of supply of gas by GAIL due to non-payment of their dues - It also appears that while the RP was struggling with these issues, Form-G was published on 06.07.2019 and 9 EoIs were received from the prospective Resolution Applicants. However, only one Resolution Plan was received in view of the litigation with DISCOMS, withdrawal of Power Purchase Agreement and disruption of supply of gas and the operations remaining standstill.
The circumstances prevailing during the period had adversely impacted the CIRP process in achieving the objectives of the Code i.e., maximisation of value of the assets of the Corporate Debtor and running the Corporate Debtor as a going concern - This Adjudicating Authority is of the view that the facts and circumstances of the instant case will squarely fall within the category of "unforeseen circumstances" which have adversely impacted the CIRP process.
Thus, the period during which the supply of gas remain suspended/disrupted i.e., from 04.07.2019 to 04.10.2019 should be excluded from the CIRP period and therefore the exclusion of a period of 92 days from computation of 270 days is allowed with immediate effect for completion of the CIRP process.
Application disposed off.
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2020 (9) TMI 836 - NATIONAL COMPANY LAW TRIBUNAL , AHMEDABAD BENCH
Liquidation of Corporate Debtor - section 33 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- There is no scope for revival of the company, considering the situation of the company and further, there is no asset and income of the company to meet the CIRP expenses. Therefore, the CoC has resolved for liquidation of the Corporate Debtor vide its Third meeting dated 23.01.2020. It is also to be noted that this Adjudicating Authority has no jurisdiction to interfere in the commercial wisdom of the CoC.
Application is allowed and the Adjudicating Authority passes an order for initiation of liquidation of the Corporate Debtor - moratorium shall cease to have effect.
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2020 (9) TMI 835 - NATIONAL COMPANY LAW TRIBUNAL , BENGALURU BENCH
Dispensation of office objection raised by the Registry regarding the aspect of record of default with the information utility (NESL) - Rule 11 of the NCLT Rules, 2016 - 'Home Buyers', whether fall within "other creditors" as a residuary class? - HELD THAT:- Since the Petitioner has filed the appropriate documents in support of debt and default raised in the instant Company Petition and following the law as cited by the Learned Counsel, we are inclined to dispense with objections raised by the Registry, as prayed for.
Application allowed.
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2020 (9) TMI 834 - NATIONAL COMPANY LAW TRIBUNAL , CUTTACK BENCH
Exclusion of a period of 21 days from CIRP period - Section 60(5) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The applicant is seeking an extension of 21 days in completion of Corporate Insolvency Resolution Process. Since, there is scope for revival of Corporate Debtor and approval of a Resolution Plan, we are of view that exclusion of 21 days ought to be granted.
The period of 21 days is excluded from the Corporate Insolvency Resolution Process - application allowed.
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2020 (9) TMI 801 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Review of order - correction of an error ‘apparent on the face of record’ - Section 420(2) of the Companies Act, 2013) r/w Rule 11 of the ‘NCLAT’ Rules, 2016 - HELD THAT:- It is to be pointed out that the power to ‘Review’ is not an ‘inherent power’ and must be showered by Law either expressly or by necessary implication. As a matter of fact, the power to ‘review’ is a creation of statute. Indeed, a ‘Review Jurisdiction’ cannot be pressed into service as an ‘Appellate Jurisdiction’. Moreover, the ‘Power of Review’ is not to be confused with an Appellate power. A ‘review’ cannot be claimed or asked for merely for a fresh hearing or arguments or the correction of an erroneous view taken earlier - It is an axiomatic principle in Law that an error contemplated must be such which is apparent on the face of record and not an error which has to be fished out and searched. The term ‘Review’ judicially and literally means ‘reexamination’ or ‘re-consideration’. Under the guise of ‘Review’ the Tribunal would not rehear the parties both on ‘facts and Law’. If two views are possible on the point involved, the same is not a ground for ‘Review’.
It cannot be gainsaid that ‘I&B’ Code, 2016 does not contain any provision for ‘Review’. Also, it does not contain any provision similar to Section 420 of the Companies Act, 2013. In this connection, a mere perusal of the ‘National Company Law Appellate Rule’ 2016 unerringly point out that there is no express Rule for ‘Review’. There can be no two opinion of a prime fact that Rule 11 of ‘NCLAT’ Rules, 2016 is not a substantive Rule which confers any power or jurisdiction on the ‘Tribunal’. A ‘Tribunal’ has no power to perform an act which is forbidden by Law - The term ‘record’ in Section 420 of the Companies Act, 2013 means record to the proceedings of the case. An error must be a ‘patent error’ and not a mere ‘wrong decision’. Where two views are possible and the matter is debatable, the order cannot be rectified by mistake apparent from record.
When there is no mistake apparent from the record in the judgement delivered by a Tribunal, then an application for review filed by the concerned Applicant cannot be construed to be one under Section 420(2) of the Companies Act or under Rule 11 of ‘NCLAT’ Rules, 2016.
Review application dismissed.
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2020 (9) TMI 800 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - pre-existing dispute or not - HELD THAT:- The Ld. Adjudicating Authority have failed to consider the facts that there was a pre-existing dispute between the parties much prior to filing of application under Section 9 of the IBC. The impugned order cannot be sustained in the eye of Law and in view of the Judgment of the Hon’ble Supreme Court in MOBILOX INNOVATIONS PRIVATE LIMITED VERSUS KIRUSA SOFTWARE PRIVATE LIMITED [2017 (9) TMI 1270 - SUPREME COURT] and is hereby fit to be set aside and the Appeal is allowed.
‘Corporate Debtor’ is released from the rigor of the ‘Corporate Insolvency Resolution Process’. All actions taken by the ‘Interim Resolution Professional / Resolution Professional’ and ‘Committee of Creditors’, if any, are declared illegal and set-aside - matter remitted to the Ld. Adjudicating Authority to decide fees and costs of ‘CIRP’ payable to IRP/RP, which shall be borne by the Operational Creditor / Respondent No. 1.
Appeal allowed.
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2020 (9) TMI 799 - 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:- It is a settled position of law that the provisions of Code cannot be invoked for recovery of outstanding amount but it can be invoked to initiate CIRP on justified reasons - The Hon'ble Supreme Court in the case of MOBILOX INNOVATIONS PRIVATE LIMITED VERSUS KIRUSA SOFTWARE PRIVATE LIMITED [2017 (9) TMI 1270 - SUPREME COURT] has inter alia, held that IBC, 2016 is not intended to be substitute to a recovery forum.
The instant petition is filed on misconceived fact and law and against the object of Code. Since the Respondent agreed to settle the claim of the Petitioner, subject to substantiating it, we are inclined to dispose of the instant petition directing the Respondent to settle the claim of the Petitioner, provided the Petitioner submitted requisite documents - Petition disposed off.
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2020 (9) TMI 798 - 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:- It is not in dispute that Petitioner has rendered his faithful services to the Respondent in good faith without getting his fees settled before his services. Therefore, the Respondent has rejected the case of Petitioner purely on legal grounds by taking advantage of limited scope available to the Petitioner to invoke provisions of Code. It is true that the Respondent can legally deny the legitimate claim of Petitioner by taking advantage of summary proceedings as provided under the provisions of Code. In any case, professional fee to an experienced person like the Petitioner cannot be mere travelling expenses incurred. Though the instant Petition is not maintainable under the provisions of Code, it would be just and proper for the Respondent to consider the claim of Petitioner at least to pay for some advolreum amount by taking into consideration of principle of good Corporate governance, as the Petitioner is senior Citizen having rendered substantial service to the Company at crucial time.
Even though the instant Petition is not maintainable, as per law, we are inclined to dispose the Petition by exercising inherent powers conferred on the Adjudicating Authority, Under Rule 11 of NCLT Rules, 2016, in the interest of justice - Petition disposed off.
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2020 (9) TMI 797 - 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:- It is settled position of law that the provisions of Code cannot be invoked for recovery of outstanding alleged amount(s), but it can be invoked to initiate CIRP for the justified reasons as per objective of the Code. The Hon'ble Supreme Court in the case of MOBILOX INNOVATIONS PRIVATE LIMITED VERSUS KIRUSA SOFTWARE PRIVATE LIMITED [2017 (9) TMI 1270 - SUPREME COURT] has inter alia, held that IBC, 2016 is not intended to be substitute to a recovery forum.
The instant Company Petition is not a fit case to initiate CIRP and the Parties can prosecute the alternative remedy by way of Mediation, which is already filed on 31,12,2019, before the District Legal Services Authority, Bengaluru Rural District, and Notice issued under PIM No. 25/2019 dated 31.12.2019 and the next date of hearing is stated to be 18.06.2020 - the instant Company Petition is not maintainable, and there is pre-existing dispute over the issue raised in the instant Company Petition, there is no prima facie case made out, and it is filed with an intention to recover the alleged outstanding amount rather to initiate CIRP on justified reasons.
Petition dismissed.
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