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Insolvency and Bankruptcy - Case Laws
Showing 81 to 100 of 120 Records
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2021 (7) TMI 501
Seeking voluntary dissolution of Mitlite Electric Company Private Limited - section 59 of the Insolvency and Bankruptcy Code, 2016 (Code) read with Insolvency and Bankruptcy Board of India (Voluntary Liquidation Process) Regulations, 2017 - HELD THAT:- The voluntary liquidator has filed an affidavit confirming that neither he nor the Company has received any objection with regard to the present liquidation proceedings of the company from any authority whatsoever - applicant states that necessary compliances of Section 59 and other relevant provisions of the Insolvency and Bankruptcy Code, 2016 read with the regulations have been made within time, more specifically submission of the Form GNL-2 to the ROC and the intimation to the IBBI vide email, after realisation and distribution of the assets to its members and closure of the Bank account.
In view of the satisfaction accorded by the voluntary liquidator by way of the present application accompanied by an affidavit, the said company is hereby dissolved with effect from the date of the present order - Application allowed.
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2021 (7) TMI 500
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - Service of demand notice - HELD THAT:- In the present case admittedly the demand notice in Form-3 as per Section 8 of the Code was sent on 27.07.2019. 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 sent its reply. However, no pre-existing dispute regarding the services rendered by the applicant has been claimed or proved by the respondent.
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. The respondent failed to show that the claim of applicant is disputed. 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 - moratorium declared.
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2021 (7) TMI 499
Seeking permission by suspended director of the Corporate Debtor to submit a Resolution Plan to the R.P and members of the COC - Section 60(5) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- Learned counsel for the respondent stated that since the CIR Process is to be completed on or before 23.7.2021, if this Tribunal grants a short period to the applicant to submit the Resolution Plan, the Resolution Professional has no objection in accepting the Resolution Plan for placing before the CoC for its consideration. Learned counsel for the applicant stated that he may be granted a short time to submit the Resolution Plan bringing to the notice of the Resolution Professional the Certificate obtained by the applicant as an MSME.
In view of the fact that the CIR Process is to be completed on 23.7.2021, the applicant is granted permission to submit the Resolution Plan within a week from the date of receipt of this order. If the applicant submits such a Resolution Plan, the Resolution Professional shall place the Resolution Plan before the Committee of Creditors for their consideration and further steps in the matter shall be taken without further delay, so that the CIR Process can be concluded in time.
Application disposed off.
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2021 (7) TMI 497
Seeking Liquidation of Corporate Debtor - seeking to appoint the Resolution Professional as the Liquidator of the Corporate Debtor - Section 33 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- It appears from the record that failure of the Resolution Applicant to infuse funds as proposed in the time line has contravened the provisions of the Resolution Plan approved by this Tribunal.
From a reading of the Section 33(3) & (4) of the Insolvency and Bankruptcy Code, 2016, it is clear that if the Resolution Applicant fails to implement the Resolution plan within the timeframe as agreed, any person other than the Corporate Debtor can apply for Liquidation of the Corporate Debtor - In the present case, the Liquidation Value of the Corporate Debtor is ₹ 41,74,00,000 which is more than the upfront payment offered in the Resolution Plan i.e. ₹ 26,75,00,000 and that the Resolution Applicant has failed to honour his commitments in the Resolution Plan. The only course open to this Tribunal is to invoke Section 33(3) and (4) of the I & B Code, 2016 and order Liquidation of the Corporate Debtor.
Shri Jasin jose, the proposed Liquidator has not filed the prescribed form accepting his appointment as Liquidator. Hence he has to be directed to produce the consent as per rules.
M/s. Churakulam Tea Estate Private Limited is hereby put under liquidation with immediate effect under Section 33(1) of I & B Code, 2016 - Application allowed.
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2021 (7) TMI 496
Seeking modification in Resolution Plan - incorporation of mutually agreed position regarding the grace period - permission to follow the revised timeline based on mutual agreement between the parties during the 9th CoC meeting - seeking grant of extension of two months to the timelines proposed under the Resolution Plan - HELD THAT:- The prayer to modify the Resolution Plan incorporating mutually agreed position regarding the grace period and to follow the revised timeline based on that cannot be accepted by this Adjudicating Authority, because once a Resolution Plan is approved by the Adjudicating Authority, it cannot be reopened and add another condition in the Plan.
In this connection, the decision of Hon'ble the Supreme Court in Rahul Jain v. Rave Scans Pvt. Ltd [2019 (11) TMI 449 - SUPREME COURT] may be referred to, in which it was held that once a Resolution Plan is approved by the NCLT, it attains finality and cannot be disturbed.
Since, it is clear that the Applicant failed to honour his commitments in complying with the conditions in the approved Resolution Plan, grant of any further time is not called for in this matter - application dismissed.
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2021 (7) TMI 494
Seeking grant of 45 days' time to the Directors of the applicant company to clear off the debt due to the Respondent in the IBA and the other Creditor CSB Bank - re-structuring the applicant company - HELD THAT:- To arrive at a conclusion whether further time can be granted to the applicants to settle the matter by restructuring the company, we have gone through the 2005 Report of the Expert Committee on Company Law (JJ Irani Committee Report) in which it is stated that to provide an opportunity for genuine effort to explore restructuring/rehabilitation of potentially viable businesses with consensus of stakeholders reasonably arrived at. Where revival/rehabilitation is demonstrated as not being feasible, winding up should be resorted to. Where circumstances justify, the process should allow for easy conversion of proceedings from one procedure to another. This will provide opportunity to businesses in liquidation to turnaround wherever possible. Similarly, conversion to liquidation might be appropriate even after a rehabilitation plan has been approved if such a plan was procured by fraud or the plan can no longer be implemented.
Even though the time sought by the Applicants have already expired, taking into account the fact that the applicants have filed this application on 09.04.2021, exercising the discretionary power of this Tribunal under Rule 11 of the NCLT Rules, 2016, this Tribunal dispose of the application - The Applicants are granted 30 days' time from today to clear off the debt due to the Respondent in the IBA and another Creditor CSB Bank, so as to get re-structured the Applicant Company.
Dated the 28th day of June, 2021.
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2021 (7) TMI 489
Seeking relief from the duty assigned to Liquidator to act as a liquidator for the corporate debtor company - seeking appointment of any other person in place of the applicant in the mentioned matter to act as a liquidator - HELD THAT:- The Applicant has been facing some issues with regard to her health and family concerns - Also, no fees had been paid to the Applicant so far since 06.09.2019 as the fees has to be paid from the sale proceeds of the assets as per the slabs fixed by IBBI and till date not a single asset has been sold or auctioned by the Applicant.
From the panel of resolution professionals approved for NCLT, Jaipur Bench for appointment as IRP or Liquidator, Mr. Sourab Malpani with Registration No. IBBI/IPA-001/IP-P01265/2018-2019/12047 is selected - Therefore Mr. Sourab Malpani is appointed in replacement of Ms. Sarita Duck for continuing the liquidation proceedings in respect of the Corporate Debtor, M/s. Balajidham Buildestate Pvt. Ltd.
Ms. Sarita Duck, shall hand over the entire records and the assets of the company which have been taken over by her in course of the corporate insolvency process and liquidation process to the Liquidator forthwith. Mr. Sourabh Malpani, Liquidator shall take over the charge of the aforesaid records and the assets and perform his duties as required under the Code and the relevant Rules and Regulations thereunder - the Liquidation fees payable as per the provisions of the Code shall be divided between Ms. Sarita Duck for the duties carried out by her and the Liquidator appointed herein in the ratio of 3:7.
Application allowed.
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2021 (7) TMI 456
Liquidation of Corporate Debtor - it is submitted by the respondent that the Corporate Debtor was not an MSME and during the pendency of the CIRP, Appellant procured the MSME Certificate without authority, copy of which has been filed in the Appeal - HELD THAT:- Although the Appellant heavily banked upon his efforts made to settle with the Operational Creditor and also with other creditors so as to bring about the withdrawal under Section 12(A) of IBC and also relied heavily on his efforts to show that the Appellant was trying to bring through a resolution plan filed by him and his resolution plan was required to be accepted, fact remains that the record does not show that Resolution Plan, as such of the Appellant, was approved by CoC by any given majority.
Section 9 application was admitted on 19th July, 2018 and Liquidation order passed by the Adjudicating Authority on 11th December, 2020. This is more than two years of time. Clearly, if in the time prescribed under Section 12 of IBC resolution was not reached in the given time, liquidation is the only consequence which had to follow and which has been ordered though belatedly.
There is yet another factor which is relevant and it is found that the Appellant has obtained Annexure-A-3 – an MSME Certificate for which application had been made on 5th March, 2019. Clearly, CIRP with regard to the Corporate Debtor started on 19th July, 2018 and on 5th March, 2019 the Corporate Debtor was under the management of IRP/RP - After CIRP was initiated former Promoter/ Director cannot suppress from IRP/RP and apply for MSME Certificate and tide over ineligibility under Section 29A of the IBC.
The Appeal is disposed of.
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2021 (7) TMI 455
Validity of parallel proceeding filed against the ‘Principal Borrower’ - already CIRP had been initiated against the ‘Corporate Guarantor’ and the claim of the ‘Financial Creditor’ had already been accepted in the CIRP for the whole amount - HELD THAT:- Section 60(2) of IBC itself makes it clear that if CIRP or liquidation proceeding of a Corporate Debtor is pending before a National Company Law Tribunal, an Application relating to Insolvency Resolution of a Corporate Guarantor or Personal Guarantor, as the case may be, of such Corporate Debtor is filed it shall be filed before such National Company Law Tribunal - This Section speaks for itself that the parallel proceedings against borrower and guarantor are maintainable.
Appeal disposed off.
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2021 (7) TMI 437
Seeking an exclusion of period of lockdown from calculation of period required for completion of Liquidation Process of the Corporate Debtor - Section 60(5) of Insolvency and Bankruptcy Code, 2016 Read with Regulation 40C of The IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 and Rule 11 of NCLT Rules, 2016 - HELD THAT:- The submissions of the applicant is satisfying that the liquidation period in respect of present Corporate Debtor needs to be extended. Hence the present IA is partly allowed.
The liquidation period is further extended by six months from today. Further the period consumed during the lockdown period also needs to be excluded/exempted from counting the period prescribed for completing the process of liquidation as per the suo moto decision of Hon'ble Supreme Court in IN RE COGNIZANCE FOR EXTENSION OF LIMITATION [2021 (5) TMI 564 - SC ORDER] by extending/exempting the period from 15th March 2020 till 14th March 2021 and again now until further order.
Application allowed.
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2021 (7) TMI 435
Avoidance transactions - seeking to reject Resolution plan or to modify it - HELD THAT:- CoC has consciously decided that the money realised through these avoidance transactions would accrue to the members of the CoC and at the same time they have also consciously decided after lot of deliberations, negotiations that the monies realised if any under Section 66 of IBC i.e Fraudulent Transactions, CoC has ascribed the value of ₹ 1 and if any positive money recovery the same would go to the Resolution Applicant/future Corporate Debtor.
CoC is comprised of 77 Financial Creditors and deliberations they have protected their interest and ascribed the value based on their Commercial Wisdom and Adjudicating Authority has limited jurisdiction to interfere with the same - The CoC by exercising its Commercial Wisdom have accepted, approved the resolution plan including the monies to be recovered if any from the Fraudulent Transactions - thus, Adjudicating Authority are reluctant to substitute our wisdom at this stage as against their Commercial Wisdom of the CoC.
The Adjudicating Authority is of the confirmed view that CoC has already taken a conscious decision comprising of 77 members, therefore we restrain from making any comments and sending the plan back to CoC as pleaded by the applicant - Application dismissed.
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2021 (7) TMI 434
Reopening of assessment u/s 147 - expenditure not allowable under section 37 - HELD THAT:- Hearing concluded.
Written submissions, if any, be filed on or before 09-07-2021.
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2021 (7) TMI 416
Seeking rejection of sanctioned Resolution Plan - Delaying Tactics - rejection of Valuation Report - appointment of another valuer convening another CoC - inequitable provisions which discriminate the ‘employee Doctors’ and ‘Consultant Doctors’ - inconsistent with Article 14 of the Constitution of India - non-compliance with Section 30(2)(e) of I&B Code - discrepancies/anomalies observed in the ‘Valuation Report’ - concept of equality - HELD THAT:- As per Section 31 of the Code, if an ‘Adjudicating Authority’ is satisfied with the ‘Resolution Plan’ is approved by the ‘Committee of Creditors’ under Section 30(4) of the Code that it meets the requirements as contemplated in Section 30(2) of the Code, it shall by an order approve the ‘Resolution Plan’ which shall be binding on the ‘Corporate Debtor’ ‘Employees’ and ‘Members’ ‘Creditors’ and other ‘Stakeholders’ involved in the ‘Resolution Plan’ - It is well settled that it is not open to reopen the reasons for rejection of ‘Resolution Plan’ passed with 100% voting share s for adjudication. No wonder, approval for ‘Resolution Plan’ is to be judged with diligence and ‘satisfaction’ in regard to the ‘Approval of plan’ in writing with reasons to be recorded, of course, with due application of mind.
Rejection of Valuation Report made by the Valuer Mr.R.K.Patel - HELD THAT:- Not resting with that, the ‘Resolution Professional’ had resorted to the agreed ‘International Valuation Standards’ and carried out the physical verification of the ‘Corporate Debtor’s fixed assets. Therefore, the question of appointing a ‘third Valuer’ on the purported ground of difference of 15.92% in the ‘Fair Value’ does not arise, in the considered opinion of this ‘Tribunal’.
Equality Concept - HELD THAT:- One cannot ignore a vital fact that ‘Guarantee of Equality’ before law is a positive concept. The principle of equal pay for equal work has to be granted only if there is total and complete identity between two employees. It is to be remembered that the ‘burden of proving’ the ‘right and parity’ in an ‘employment’ is only on the individual claiming such right. Moreover, it cannot be lost sight of that in respect of the concerned employees ‘functions’ may be same but skills and responsibilities may be really and substantially different. Viewed in that perspective, in the instant case on hand, there is a clear difference and defined arena between the ‘Employee Doctors’ and the ‘Consultant Doctors’ of the ‘Corporate Debtor’. As such the contra plea taken on behalf of the Appellant(s) is not worthy of acceptance by this ‘Tribunal’.
This ‘Tribunal’ taking note of the divergent contentions advanced on either side and also bearing in mind the facts and circumstances of the present case, in a conspectus comes to a resultant conclusion that the ‘Adjudicating Authority’ (National Company Law Tribunal, Cochin Bench) had in application had come to a correct conclusion on 22.02.2021 that the ‘Appellant’/‘Applicants’ claim for rejection of ‘Resolution Plan’ could not be entertained at the stage when ‘Resolution Professional’ had filed the ‘Resolution Plan’ before it, and also when the Plan was to be approved.
Appeal dismissed.
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2021 (7) TMI 410
Initiation of CIRP - Corporate Debtor sought to reopen the application - Appellant had paid the due amount in full and final settlement with the Respondent/Operational Creditor - the ‘Adjudicating Authority’ had not granted permission to the Appellant and further mentioned that the prerogative to file a reopen application vests only with the Respondent/Operational Creditor and not with the ‘Corporate Debtor’.
HELD THAT:- The Appellant had paid the due amount in full and final settlement with the Respondent/Operational Creditor and an ‘acknowledgement letter dated 04.06.2021’ was issued by the Respondent/Operational Creditor to the Appellant/Corporate Debtor, this Tribunal, in furtherance of substantial cause of justice directs the filing of an application for withdrawal of main application in IBA/155/2020 on the file of National Company Law Tribunal, Division Bench – I, Chennai, as per 12A of the I & B Code, Regulation 30A of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (vide Form FA) and in accordance with the Law, by the ‘Applicant/Operational Creditor’ before the ‘Adjudicating Authority’ (through the Interim Resolution Professional) within 10 days from today, and in event of filing of said application, the ‘Adjudicating Authority’ shall dispose of the said application in accordance with the I & B Code and IBBI Regulations as expeditiously as possible.
Application disposed off.
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2021 (7) TMI 406
Seeking withdrawal of Corporate Insolvency Resolution Process - Rule 11 of NCLT Rules, 2016 r.w. Section 60(5) of Insolvency and Bankruptcy Code, 2016 - Locus of the application being shareholder of the corporate Debtor - Under which provision of law, the impugned application needs to be dealt with? - HELD THAT:- It is an admitted fact that subsequent to admission of Corporate Debtor into CIRP by the order of this Adjudicating Authority, the amount due to the concerned Operational Creditor has been paid and settled. It is also an admitted position that COC has not been formed as yet, though, IRP has been appointed and IRP is running the affairs of the Corporate Debtor as a going concern and also conducting CIRP in a limited manner. It is also to be noted that Corporate Debtor was admitted into CIRP by an order of this Adjudicating Authority on 18.12.2020 and, thereafter, multiple hearings have taken place. It is also a matter of record that on earlier occasions M/s. KKR India Financial Services was opposing this application and simultaneously they also submitted before this Adjudicating Authority that settlement talks were also going on with the Corporate Debtor.
Locus of the applicant - HELD THAT:- a person who is aggrieved or whose interests are going to be prejudiced would prima facie have a locus to file an application as a stranger to the proceedings cannot approach. In the present case, this application has been filed by a joint shareholder and it has not been the case of Interveners that such joint shareholder is not having any interest in the subject matter. Therefore, the prima facie locus of the applicant gets established.
Under which provision of law, the impugned application needs to be dealt with? - HELD THAT:- The question of non-applicability of Regulation 30A of IBBI (Corporate Insolvency Resolution Process for Corporate Persons) Regulation, 2016, being an instance of not being in terms with the provisions of Section 12A of IBC, 2016 has been raised by the applicant and it has also been contended that Rule 11 of NCLT Rules, 2016 was applicable whereas Interveners have pleaded that this application needs to be considered in accordance with the provisions of said Regulation - On the aspect whether provisions of Section 12A of IBC, 2016 or Regulation 30A of IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 and Form-FA were applicable in this kind of a situation, this Authority in the case of HUHTAMAKI PPL LIMITED. VERSUS M/S. MANPASAND BEVERAGES LTD. [2021 (3) TMI 1225 - NATIONAL COMPANY LAW TRIBUNAL, AHMEDABAD BENCH] held that Rule 11 of NCLT Rules, 2016 was applicable and not the Regulation 30A of IBBI (CIRP) Regulations, 2016.
It is also noteworthy that before amending the Regulation 30A of CIRP Regulations, IBBI published a discussion paper thereon along with draft regulation dated 08.05.2019. IBBI, in this discussion paper, took note of various rulings which, inter alia, covered the aspect that Regulation 30A could not override the substantive provisions of Section 12A of IBC, 2016, CIRP could be withdrawn even after issue of EOI in exceptional cases as Regulation 30A (1) was not mandatory but directory.
The practice of delegated legislation is established across all jurisdictions. The scope of delegated legislation essentially depends upon the power given by the parent legislature. There could be an instance where some wide powers are given by legislature by providing policy guidelines in a specific manner and there could be a situation where the legislature may give power of delegated legislation in a restricted manner. To put it differently, in some cases, the executive may even be empowered to frame Rules which may cover a situation not provided in the substantive legislation. This would be of course subject to scrutiny/approval of parliament/legislature at some stage - The Parliament has reserved the power with itself to modify or annul any Rules/Regulations and, in our view, such power unless the provisions of Section 239 or Section 240 of IBC, 2016 are amended, cannot give any power to either to Central Government or IBBI to act beyond the scope of delegation of powers under Section 239 and Section 240 of IBC, 2016. If it is to be interpreted in a manner otherwise, then, in that event provisions of Section 239 or Section 240 of IBC, 2016 would become redundant to this extent and which cannot be the legislative policy.
This application is allowed and the Corporate Debtor is released from all rigours of CIRP. The Corporate Debtor is directed to pay fee and all expenses incurred by the IRP since commencement of CIRP till date - Application filed under Rule 11 of NCLT Rules, 2016 stands allowed.
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2021 (7) TMI 371
Application for seeking liquidation order of the Corporate Debtor - Section 61 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- There is a difference of CoC where they are ‘Banks’ and ‘Institutional lenders ‘as members, while the CoC in the Homebuyers are not so expert in finance and related valuations. Hence, CoC in case of the commercial organisations will have a different perspective and expertise while in case of Real Estate projects where the CoC are totally comprising of homebuyers may not have the same expertise and perspective. Although, in case of Homebuyers provisions exists for Authorised Representatives but even he cannot be equated with the expertise with the banking professional will have. We are not passing any comments on specific Authorised Representatives.
While the Resolution Plan will generally provide a higher value than the liquidation value but in case of Real Estate Project may not be always feasible and homebuyers are in dire need of getting their homes at the earliest. However, in this case certain reconciliation are required that what is the actual realisable value which the homebuyers are getting whether it is below liquidation value or above liquidation value.
There is a need for impleading Yamuna Expressway Industrial Development Authority (YEIDA) to ascertain status of dispute with farmers and its consequential impact, if any, on this projects - matter remanded to the Adjudicating Authority and liquidation order is set aside with a direction to review the programme in full alongwith the relevant provisions of the code and Regulations and then the Adjudicating Authority is free to pass appropriate order as they think fit and proper in accordance with law.
Appeal allowed by way of remand.
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2021 (7) TMI 363
Seeking to postpone the voting on proposed Resolution Plan/CoC meeting till the time the claims of the applicants are considered by the RP - HELD THAT:- As the Members of the CoC have already voted on resolution plan, the prayer has become infructuous at this stage of the matter.
Seeking direction to RP to amend the admitted amount of claim and include pre-EMI interest paid by the applicants - HELD THAT:- It is evident from the material based before us that the applicants have been provided opportunity to meet Prospective Resolution Applicants (PRAs) and place their demands. It is the purely commercial decision of the PRAs to suitably address the issue of applicants. As the Resolution Plan already approved by the CoC is yet to be filed with this Authority, the prayer made against this item is premature at this juncture.
Seeking direction to RP to correct the Information Memorandum and roll out to RA's for the affected claims/Units resolution Plan and to create a separate class of Subvention Buyers - Seeking to represent the subvention buyers' agenda in CoC meetings in view of complexities and limited/lesser time for IP appointment as AR for subvention buyers - HELD THAT:- These cannot be granted for the reason that the Insolvency & Bankruptcy Code does not envisage/recognize a sub-class of homebuyers within the Class of Homebuyers as Financial Creditors as prayed for by the Applicants against these points. Hence, these prayers are rejected.
Seeking to direct RP to consider the claim of the buyers who had submitted an affidavit for cancellation but neither refund was made nor tripartite agreement was cancelled - HELD THAT:- The Resolution Professional are directed to consider the claim of the buyers who had submitted an affidavit for cancellation but to whom no refund was made, nor the tripartite agreement was cancelled, in respect of such buyers, the unit cancellation shall be revoked and they shall rank pari passu in relation to all other Homebuyers in class in relation to all their claims, rights and obligations etc.
Application disposed off.
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2021 (7) TMI 357
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - corporate debtor has opposed the admission of this petition and prayed for its dismissal on the ground that it is ready and willing to settle this matter with the petitioner - HELD THAT:- The principal amount as claimed by the petitioner has been acknowledged by the respondent before us and has shown readiness to pay the same. Regarding the interest as claimed by the petitioner, the respondent has raised objection that there was no clause for interest in the agreement entered into between the parties.
It is clear from the facts of the case that in July, 2019 the petitioner has been handed over with a cheque for the principal amount of his claim but the petitioner had rejected the same. Further, he has also refused to accept settlement offered by the respondent. The respondent has time and again acknowledged his liability and is willing to pay the entire principal amount. Hence, it is evident that the petitioner is not interested in resolving the dispute or entering into any form of a settlement agreement in the present scenario. This conduct of the petitioner puts question on the bonafides of this petition.
Even though there is a debt and default on the part of the respondent, we believe that it is not the respondent who is responsible for filing or the pendency of this petition. The respondent has time and again stated that he is willing to pay the principal amount only as the amount of interest has not been mentioned in the agreement - Neither the respondent nor this Bench can deny the fact that there has been debt and default on the part of the respondent in making payment to the petitioner, but it is believed that initiating CIRP against a solvent company, as in this case is the respondent, will prejudice the company and the people associated with it and this is clearly not the objective of the Code to put a solvent company under CIRP.
It will be prejudiced to the respondent if this matter is admitted and CIRP is initiated against the respondent - this petition stands dismissed.
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2021 (7) TMI 355
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - affidavit under section 9 (3) (b) of IBC 2016 filed or not - Service of demand notice - HELD THAT:- It appears that the objection raised by the corporate debtor that the operational creditor has not filed the affidavit under section 9 (3) (b) of IBC 2016 is a technical ground that is curable. The said affidavit is not mandatory unless affects the case or causes prejudice to the corporate debtor. Moreover, the reply made by the corporate debtor to the demand notice has been considered in the present application on merit, hence, such a plea of the corporate debtor has got no relevance.
On perusal of the affidavit in support of the instant application, it reveals that the contents of said affidavits are clear and consist of contents required for verifying the present application. No format as such has been prescribed by the aforesaid rules for verification affidavit. More so, said affidavit does not affect the merit of the present application.
Issuance of demand notice - HELD THAT:- The contention of the operational creditor in respect to the demand notice issued by the advocate on behalf of the operational creditor is without any authorization is not valid. This issue has already been settled by the supreme court in the matter of MACQUARIE BANK LIMITED VERSUS SHILPI CABLE TECHNOLOGIES LTD. [2017 (12) TMI 850 - SUPREME COURT] that the demand notice issued by the advocate is valid even without authorization - The invoice has been raised by the operational creditor on 09.03.2018 after statement between the operational creditor and the corporate debtor vide communicated dated 16.02.2018 issued by the operational creditor and the same was acknowledged by the director of the corporate debtor. Thus, this application has been filed within the limitation. The amount claimed as well as acknowledged by the corporate debtor also meets the threshold limit as prescribed under section 4 of IBC 2016. The plea as regards to pre-existing dispute raised by the corporate debtor has not been substantiated by bringing any cogent evidence on record.
The present application is defect-free and complies with all the relevant provisions of the IB Code. The operational creditor has not proposed the name of Resolution Professionals, the same is not mandatory terms - Application admitted - moratorium declared.
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2021 (7) TMI 317
Seeking direction to complete the leasing process of auditorium - respondent No.2-Haryana Shahri Vikas Pradhikaran (HSVP) makes a statement that in a meeting, which was held yesterday i.e. 14.06.2021, the tender process, which was initiated, stands cancelled, rendering the writ petition infructuous - HELD THAT:- The present writ petition is disposed of as infructuous.
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