|
Advanced Search Options
Insolvency and Bankruptcy - Case Laws
Showing 1 to 20 of 133 Records
-
2021 (9) TMI 1529
Resolution Plan being approved by the Committee of Creditors is pending for approval of the Adjudicating Authority - HELD THAT:- It goes without saying that the submissions sought to be made by the appellant could be the matter for consideration of the Adjudicating Authority, of course, strictly in accordance with law. In that regard, suffice it to say that any observations made in the impugned order shall not be of prejudice to the appellant in making the relevant submissions; and consideration thereof by the Adjudicating Authority.
The appeal stands dismissed.
-
2021 (9) TMI 1520
Approval of the Resolution Plan - HELD THAT:- This Bench, after having seen the figures mentioned by the Resolution Professional, is not convinced that the fair value of the assets have been projected in the proper manner. It is also surprising that the Resolution Plan Applicant is bidding with the amounts very close to that of fair value as projected in the Resolution Plan. In view of the same, with the powers vested in this Bench, it is ordered that the revaluation of the assets of the company by the experts under the supervision of the Official Liquidator, Ministry of Corporate Affairs, in-charge of this particular area, under whose jurisdiction the company is situated.
This application for the approval of the Resolution Plan is kept in abeyance and the Official Liquidator is directed to provide the exact figures/value of the assets and exact valuation details within three weeks from the date of the receipt of this order - List the matter for further consideration on 05.10.2021.
-
2021 (9) TMI 1453
Maintainability of petition - HELD THAT:- Granting liberty to the petitioner to approach the NCLT with regard to the orders passed by the authority under the RIICO Disposal of Land Rules, 1979, in terms of Section 60(5) of the Insolvency and Bankruptcy Code, 2016 - It would be open for the RP appointed under the Insolvency and Bankruptcy Code, 2016 to raise all submissions including extension of moratorium period before the NCLT.
Petition disposed off.
-
2021 (9) TMI 1447
Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - time limitation - HELD THAT:- This Bench did not find any reply filed by Corporate Debtor from the record. However, the Corporate Debtor submitted written argument/submission and also Sur-Rejoinder dated 12.04.2019. The contents and the substance of the written submissions and the sur-rejoinder are nothing but repetition. The Corporate Debtor both in the written submission and the Sur-Rejoinder raised several issues with regard to the status of account, withholding and misrepresentation of facts, delay in arranging funds and noncooperation by the Financial Creditor, violation of RBI guidelines/directives so on and so fore which are not at all relevant for the purpose of disposal of the above Company Petition.
The Corporate Debtor paid an amount of 50,000/- on 13.10.2017 which was also confirmed by the Corporate Debtor through their reply dated 04.12.2017 raising objection to the possession notice issued by the Financial Creditor under SARFAESI Act. The Corporate Debtor also addressed letter dated 24.02.2016 confirming the LC outstanding dues and LG outstanding dues. The above Company Petition being filed on 31.10.2018 is well within limitation - the only legally sustainable plea of limitation raised by the Corporate Debtor in the sur-rejoinder and written submission is liable to be rejected and accordingly rejected.
Upon perusing the material available on record, this bench is of the considered opinion that the Financial Creditor has successfully proved the existence of debt and default and the debt is also within limitation. The Financial Creditor has also suggested the name of proposed Interim Resolution Professional in part-3 of the Petition along with his consent letter in Form-2. Thus, the present Company Petition satisfies all the necessary legal requirements for admission.
Petition admitted - moratorium admitted.
-
2021 (9) TMI 1443
Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Personal Guarantor of the Corporate Debtor - demand notices were sent but the dues were not cleared - HELD THAT:- The Petitioners have has complied with Section 95(4) of IBC, that the demand notices dated 14.02.2020 have been sent to the Respondents/Personal Guarantors and that the Respondents/Personal Guarantors failed to make the payment, it is concluded that there is a default on the part of the Respondents/Personal Guarantors by not fulfilling the debts owed to the Corporate Debtor as per the clauses contained in the Consent Terms in respect of the outstanding financial debt which is apparent from the documents placed on record.
Petition admitted - moratorium declared.
-
2021 (9) TMI 1430
Seeking direction to the IRP to accept the claims submitted by the Applicant - Operational Creditor, inadvertently, in Form-C mis-typed as a Financial Creditor - time limitation on filing claims - Section 60(5) of IBC r/w Rule 11 of NCLT Rules, 2016 - HELD THAT:- It is an admitted fact that the last date for submissions of claims was 04.12.2019, however, the Appellant has filed his claim on 12.12.2020 i.e delay of 374 days. The Appellant in any case cannot get the advantage of the Judgment of Hon’ble Supreme Court in IN RE COGNIZANCE FOR EXTENSION OF LIMITATION [2021 (5) TMI 564 - SC ORDER] as prescribed period has already been expired on 04.12.2019 for submitting the claim. In the impugned order, it is mentioned that the CIRP is at the stage of about to end. Ld. Adjudicating Authority has also mentioned that if the Appellant’s claims is directed to consider at belated stage it will not only be unfair to the other creditors who could not file their claim with the RP because of the delay but would also dilute the purpose of publication of Form-A. CIRP is a time bound process and if the Adjudicating Authority sets the clock back, it would certainly go against main objective of the Code.
There are no ground to admit this Appeal. Therefore, the Appeal is dismissed summarily without notice to the other side.
-
2021 (9) TMI 1429
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - Existence of financial debt or not - internal wrongdoing by constituent shareholders - HELD THAT:- This Petition has been preferred under section 7 for four term loans amounting to total Rs. 159,67,40,173/- along with interest as on 15.03.2019. The date of default as per the Petition is 13th July 2017. The Bench notes that existence of Financial Debt is admitted by the Corporate Debtor and these term loans are adequately reflected in the balance sheet of the Corporate Debtor for the year 2015-2016 and 2016-2017 as has been annexed in the rejoinder submitted by the Petitioner. The Financial Creditor has also produced the Bank statements before the Bench that clearly reflects disbursal of the money.
The bench notes that the Corporate Debtor is a body Corporate and has independent identity distinct from the shareholders. The Bench also notes that the Corporate Debtor had borrowed the money and it must be repaid. Since the Corporate Debtor had borrowed the money, it cannot take a plea of intra shareholders dispute or allegation of internal wrong doings by the constituent shareholders as a reason for not meeting its repayment obligation - In any case, the term loans have been reflected in the balance sheet of the Corporate Debtor and is reflected in the CIBIL Report. The facts of the case clearly and unbiasedly shows that there is a Financial Debt in terms of section 5(8) of IBC, 2016 and there is default in terms of section 3(12) of the IBC, 2016 by the present Corporate Debtor.
Petition admitted - moratorium declared.
-
2021 (9) TMI 1427
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - threshold limit involved inthe appeal - time limitation - HELD THAT:- It is noted that there is a debt which is more than threshold limit prescribed for initiation of insolvency proceedings under Section 7 of IBC, 2016. This debt has not been repaid, thus, the event of default has occurred. The debt is not barred by limitation.
The application is otherwise complete and defect free. The Financial Creditors have proposed the name of Mr. Devart Rana, to act as IRP which is mandatory for an application filed under Section 7 of CODE and whose consent is on record. It is also noted that no material exists on record as regard to disciplinary proceedings, if any, being pending against such person.
Application admitted - moratorium declared.
-
2021 (9) TMI 1395
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - time limitation - Corporate Debtor contends that account of the Corporate Debtor was declared NPA on 15.04.2011, whereas the present application is filed on 25.11.2019, the limitation period ended in 2014 - application is beyond the limitation period and the application is barred by Article 137 of the Limitation Act or not - HELD THAT:- Corporate Debtor having submitted OTS proposals on 19.09.2018, 09.11.2018 and 15.07.2019, cannot afford to make such submission. Besides, the Corporate Debtor had entered into Restructuring Package Agreement dated 19.12.2015.
Unpaid interest converted into loan - HELD THAT:- Since the Corporate Debtor could not pay the interest and it was at the request of the Corporate Debtor enhanced credit facilities were granted while continuing restructuring scheme, the Corporate Debtor cannot raise such contention.
Existence of debt and Dispute or not - HELD THAT:- Existence of debt and default has duly been established by the above documents albeit the Corporate Debtor has opposed the same without substantial evidence - the Corporate Debtor tried to raise contentions like lack of cooperation from the Financial Creditor in assignment of debt and that the Financial Creditor has filed proceeding before the Debt Recovery Tribunal, Hyderabad, the amounts claimed before the Debt Recovery Tribunal and the amounts claimed before this Adjudicating Authority do not match. Such contentions have no bearing before this Adjudicating Authority in the matter of considering this application under section 7 of the I & B Code, 2016. At the time of admission of the petition filed under section 7 of the I & B Code, the Tribunal has to consider whether there is debt and default.
Petition admitted - moratorium declared.
-
2021 (9) TMI 1390
Right to reply - seeking modification in order wherein Corporate Debtor was given 5 days time to file reply failing which right to file reply was to be closed - HELD THAT:- Admittedly, the reply is not filed. Mr. Kalia, Learned Counsel for the Corporate Debtor states that the parties have principally agreed to settle the matter. The settlement documents are being exchanged and is hopefully to be executed. The Corporate Debtor wants to file reply, hence seeks to allow Corporate Debtor to file reply.
Application allowed.
-
2021 (9) TMI 1381
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - service benefits payable to the petitioner on his superannuation - existence of debt and dispute or not - HELD THAT:- It is the very case of the petitioner that the amount of Rs. 16,80,877/- is due towards “gratuity”, “leave encashment”, and “LTC”, on account of superannuation that amounts to “service benefits” and not services and will not qualify under the definition “Operational Debt”. It is not the case of the petitioner that the above amount is due towards “salary” for the service rendered by him to the corporate debtor while he was in service. Of course, service benefits accrues out of rendering service but the intention and object of code is not “recovery” and is only “resolution” - the words “goods” and “services” used in the definition of “Operational debt” cannot be stretched to service benefits arising out of service. The words “goods” and “services” shall be interpreted to mean those that are necessary to keep the company as a going concern. This is also evident from exempting “goods” and “services” from the purview of moratorium declared under section 13 of the code. Therefore, the company petition is liable to be dismissed as the amount claimed by the petitioner does not qualify as on “Operational Debt”.
It is also clear from the submissions of the corporate debtor which was not disputed by the petitioner that the petitioner did not accept the gratuity amount offered by the corporate debtor in the pending writ petition before the Hon’ble Bombay High Court when it was offered along with the other petitioners which is his own fault and therefore the question of resolution of Operational Debt does not arise, as no person shall be entitled to take advantage of his own wrong as per law.
This bench is of the considered opinion that the there are no merits in the company petition and the same is liable to be dismissed - Petition dismissed.
-
2021 (9) TMI 1380
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of privity of contract between the Petitioner and the Corporate Debtor as envisaged under the LLP agreement and Supplementary Retirement Deed or not - time limitation - HELD THAT:- The Bench is of the considered opinion that there is no privity of contract between Petitioner and Corporate Debtor and the LLP agreement dated 07.05.2012 and the Supplementary Retirement Deed dated 15.08.2016 is not a contract signed by and between the Petitioner and Corporate Debtor herein. The Supplementary Retirement Agreement contemplates certain liability of Tridhaatu wherein Tridhaatu agreed to pay the outstanding sum of Rs. 45,08,08,384/- to the Petitioner and provided certain cheques to be paid by the Corporate Debtor herein being the group company. The Corporate Debtor also confirmed the liability of payment of Rs. 4,03,28,000/- to the Petitioner herein as on 31.03.2018, however, this does not demonstrate any liability towards payment of financial debt.
The Petitioner has failed to demonstrate the basic ingredients of financial debt along with interest, if any, which is disbursed against consideration for time value and money and is in existence between the Petitioner and Corporate Debtor. The Petitioner is relying upon a reference being made in Supplementary Retirement Deed and that cheques were presented as security without any basis of contractual terms between the Petitioner and Corporate Debtor - It is an undisputed fact that there is no privity of contract between the parties and a mere reference to certain liability while handing out cheques, confirmation of liability, it cannot be construed that there is a binding agreement of any debt due in terms of Section 5 (8) of the Code and hence, there is no evidence of default for non-payment of money by the Corporate Debtor towards his obligation of payment of monies under any contract is thus not established. Further, the claim is barred by limitation.
Unless the liability is crystallised by a regular civil court, the Petition under Section 7 of IBC cannot be admitted. The mere reference of handing over of cheque of Corporate Debtor as security does not fasten any liability to the Corporate Debtor for payment of monies and any debt due under the Supplementary Retirement Deed. The expression Tridhaatu affiliated nominee including sister concern cannot be bound unless it is expressly confirmed that the sister concern is liable to pay in case of default and in the absence of any absolute liability. The claim has to be adjudicated by a regular civil court and hence the petition is liable to be dismissed.
Petition dismissed.
-
2021 (9) TMI 1378
Modification of Resolution Plan - HELD THAT:- The Resolution Professional who is present, is directed to convene a meeting of Committee of Creditors within four weeks to consider the modified Resolution Plan.
Before the meeting, the Home Buyers may nominate not more than 10 persons who will participate in the meeting and represent them. The names of such nominees be communicated to RP through their counsels. The promoters and the authorized person of Edelweiss Asset Reconstruction Company Ltd. (Financer) will also participate in the meeting, so that they can explain the elements of the modified Resolution Plan to the homebuyers about how they will implement the modified Resolution Plan.
Let the matter be fixed for ‘hearing’ on 15th November, 2021.
-
2021 (9) TMI 1369
Seeking condonation of delay in filing its claim with the Resolution Professional - HELD THAT:- The Resolution Plan has been approved by Committee of Creditors on 05th June, 2021 and at this late stage, allowing the claim of the Applicant, will not only cause grave prejudice to the completion of the CIRP but it will also be unfair to other creditors, who could not have filed their claim before the stipulated date and on this ground the Ld. Adjudicating Authority dismissed the application.
There is no ground for interference in the Impugned Order passed by the Ld. Adjudicating Authority - Appeal dismissed.
-
2021 (9) TMI 1368
Maintenance of status quo by both respondent and petitioner - CIRP initiated by one of the Financial Creditors - HELD THAT:- The Ld. NCLT, New Delhi is directed that none of the parties to whom the report of the Independent Commissioner has been served shall rely upon, utilize and quote any word from the Report of the Independent Commissioner before the Ld. NCLT till this matter is decided by this Appellate Tribunal - Further, the Ld. NCLT, New Delhi shall suo motu also itself not quote, rely upon any paragraph, passage or word of the report till the Appeal is decided by this Tribunal - Further, Status Quo as prevailing today shall be maintained by the parties in question.
List this Appeal along with Company Appeal (AT) No. 106 of 2021 which is coming on 11th November, 2021.
-
2021 (9) TMI 1367
Oppression and Mismanagement - Jurisdiction - power of this Bench is to appoint an independent Commissioner - HELD THAT:- Learned Counsel for the Respondent Nos. 1 and 2 are directed to file hard copy of their Reply Affidavit within four weeks. Rejoinder, if any, may be filed by the Appellant within one week thereafter. Registry is directed to accept it.
List the Appeal ‘For Admission (After Notice)’ on 11th November, 2021.
-
2021 (9) TMI 1366
Seeking maintenance of status quo by both petitioners and respondents - Deadlock as regards management of company - whether any interim order can be passed against the company or against the other respondents? - HELD THAT:- This is the third petition with regard to the very same respondent company - Now, the apprehension of the petitioners is that, if at all, banks loan are not serviced and any petition under Section 7 of the Insolvency & Bankruptcy Code is initiated against the company, the entire shareholding of the shareholders will get wiped-out and the prospect of the company will come to zero.
As the situation is very fragile and all the petitioners, including the promoters, are involved in the dispute under Section 242, filing petitions against each other, there is no clarity as to who is there to look after the interest of the company. The powers available to this Bench, under Section 241-242, are so extensive that the main intension of the Tribunal, while dealing with such petitions, is to protect the interest of the company first and then the shareholders next - When the shareholders, including the respondents, are involved in the disputes against each other and there is practically nobody there in the company to service the debts of the company, if at all the respondents indulge in any activity to sell away the assets of the company or indulge in any activity that will go against the interest of other shareholders, the very purpose of these petitions would get defeated.
It is an admitted fact that the petitioner has about 15% shareholding in the company and not minding the said shareholding whether it is minor or major, as it could be seen from the other petitions also, there is particularly a kind of deadlock as regards the management of the company. Deadlock means the management is not in a position to take any decision, either this side or that side, and if at all they take any decision, the same may definitely go against the interest of the company.
Taking utmost care as regards the interest of the company and the shareholders, the status-quo is ordered to be maintained by both petitioners and also the respondents, with regards to the respondent company and the shareholding of the company.
List the matter for further consideration on 16.09.2021.
-
2021 (9) TMI 1362
Application filed by RP against the purchaser of property of the Corporate Debtor whose reply has not come on record - HELD THAT:- Learned Counsel for the Yes Bank, another respondent, states that they have filed reply yesterday in this application which has not come on record.
List on 17.11.2021.
-
2021 (9) TMI 1356
Approval of Resolution plan - Whether a third party company, can be dealt with in a Resolution Plan under corporate insolvency resolution process against the Corporate Debtor? - it was held that There are no substance based on which it can be inferred that the Resolution Plan is not in conformity with the provisions of Code as provided under Sec 30(2) of the Insolvency and Bankruptcy Code, 2016.
HELD THAT:- There are nothing to interfere with the impugned order.
The Civil Appeals stand dismissed.
-
2021 (9) TMI 1353
Seeking revision of timelines for payment to various creditors - issuance of NOC to the Resolution Applicant so that it can transfer the existing shares of the CD in its favour - direction to members of the Monitoring Agency to provide support to the applicant to reconstitute the Board of the Directors of the Corporate Debtor in order to expedite the implementation of the approved Resolution Plan - seeking direction for the smooth implementation of the Resolution Plan by all concerned - HELD THAT:- At this stage, this Adjudicating Authority cannot be compelled to direct the financial creditors to negotiate a modification to the Resolution Plan. This is in line with the decision of the Hon'ble Supreme Court dated 23.02.2021 in Committee of Creditors of Amtek Auto v Dinkar T Venkatasubramaniam [2021 (2) TMI 1051 - SUPREME COURT], Evert taking the case of the successful resolution applicant at its highest, it can only explain that part of the resolution plan which deals with generation of revenues from the use of the corporate debtor's diagnostic equipment. It does not explain why the successful resolution applicant did not bring in the funds from external sources to revamp the corporate debtor as per the resolution plan. This only goes to show that the successful resolution applicant is hedging its bets.
The present application is only to reagitate practically the same issues which were once considered by this Adjudicating Authority and orders passed on 12.04.2021., directing the successful resolution applicant to make the outstanding payments under the approved resolution plan by 30.06.2021. The conduct of the successful resolution applicant is completely lacking in bona fides. It is an attempt to arm-twist the Adjudicating Authority into acceding to its request for a direction to the financial creditors to what would practically be a renegotiation of the terms of the resolution plan.
This Adjudicating Authority is of the view that although the Resolution Applicant has grossly failed in meeting its commitments in respect of implementation of the Resolution Plan, liquidation is the last resort when all other available options fail in the CIRP. In the interest of all the stakeholders and also the implementation of the Resolution Plan, after considering all the facts and circumstances of the case, this Adjudicating Authority allows one last opportunity to the Resolution Applicant to fulfil all its commitment and financial obligations stated in the Resolution Plan by 31.10.2021 failing which actions as may be deemed appropriate as per law, shall be taken - Resolution Applicant is directed to submit a Weekly Progress Report in implementation of the Resolution Plan in the Registry.
Application disposed off.
........
|
