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Insolvency and Bankruptcy - Case Laws
Showing 101 to 120 of 1700 Records
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2021 (12) TMI 344 - NATIONAL COMPANY LAW TRIBUNAL , ALLAHABAD BENCH
Seeking liquidation of the Corporate Debtor - no resolution plan was approved by the Committee of Creditors - section 33 of the Insolvency & Bankruptcy Code, 2016 - HELD THAT:- Section 33(2) of the Code enjoins the Adjudicating Authority to pass an order for liquidation of the Corporate Debtor where the resolution professional, at any time during the CIRP but before confirmation of the resolution plan, intimates the Adjudicating Authority of the decision of the CoC approved by not less than sixty-six percent of the voting share, to liquidate the Corporate Debtor. In the present case, the CoC has resolved by 97.04% voting share to liquidate the Corporate Debtor.
There is no purpose in directing the RP to collate the claim. The claimant can now file the claim with the Liquidator afresh in accordance with the Liquidation Process Regulations. Therefore, the present application becomes infructuous, and is dismissed as such.
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2021 (12) TMI 343 - NATIONAL COMPANY LAW TRIBUNAL , NEW DELHI BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Corporate Applicant - existence of debt and dispute or not - HELD THAT:- On perusal of the averments by Corporate Applicant and reply by its employees, it is clear that Corporate Applicant is in financial distress since January 2019: It has been reflected' in the provisional financial of the Corporate applicant as well.
The application is complete and there is an existence of default on the part of Corporate Applicant. Corporate Applicant's business is actually in very downfall condition since inception'. Corporate Applicant is unable to pay off his debts and that's why he came before us to initiate CIRP against it. There is no disciplinary proceedings pending against the RP. Therefore, the application is admitted under Section 10(4)(a) of the IBC, 2016.
Application admitted - moratorium declared.
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2021 (12) TMI 342 - NATIONAL COMPANY LAW TRIBUNAL , CHENNAI BENCH
Seeking to replace Respondent and appoint some other person as liquidator in the interest of the creditors - Section 60(5) of the Insolvency and Bankruptcy Code 2016 - HELD THAT:- It is seen that this Tribunal after taking into consideration the piquant situation that the Corporate Debtor is undergoing, after two Scheme proponents have withdrawn their proposal, has passed an order and thereby granted 90 days' time to complete the entire process. It is also seen from the records that the Respondent has filed two applications against the Scheme proponents who have withdrawn the Scheme after submitting the same before the CoC, seeking direction to pay a sum of ₹ 2 Crore into the Liquidation account
This Tribunal does not wish to traverse through the allegations made by the Applicant, since any orders passed will adversely affect the timelines set by this Tribunal - Application disposed off.
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2021 (12) TMI 341 - NATIONAL COMPANY LAW TRIBUNAL , CHENNAI BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - Pecuniary Jurisdiction - HELD THAT:- The default, on the part of the Corporate Debtor is proved from the documents filed and the submissions made by the Learned Counsel by the Operational Creditor. Further, it is also pertinent to note that the default arising in the present Application is much prior to the advent of the Covid-19 pandemic and hence the Corporate Debtor also cannot seek shelter under Section 10A of IBC, 2016.
Pecuniary Jurisdiction - HELD THAT:- Further in relation to the 'Pecuniary Jurisdiction' even though the Threshold Limit' has been raised to ₹ 1 Crore as and from 24.03.2020 by virtue of a Notification issued under Section 4 of IBC, 2016, as regards the present Application, it is seen that the present Application has been filed on 24.8.2019, which is well before the Notification effected in increasing the threshold limit from ₹ 1 lakh to ₹ 1 Crore as on and from 24.03.2020 and as such this Tribunal has got the 'Pecuniary Jurisdiction' to entertain this Petition, as filed by the Operational Creditor - this Tribunal is left with no other option than to proceed with the present case and initiate the Corporate Insolvency Resolution Process in relation to the Corporate Debtor.
The Petition, as filed by the Operational Creditor, is required to be admitted under Section 9(5) of the IBC, 2016. Since the Operational Creditor has not named the Insolvency Resolution Professional, this Tribunal based on the latest list furnished by the Insolvency and Bankruptcy Board of India applicable for the period between July to December 2021 - petition admitted - moratorium declared.
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2021 (12) TMI 340 - NATIONAL COMPANY LAW TRIBUNAL , AMARAVATI BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- The Operational Creditor issued demand notice dated 13.01.2019 to the Corporate Debtor. But the Corporate Debtor did not issue any reply to the said demand notice. The Corporate Debtor has admitted the debt in its counter - Corporate Debtor does not deny the fact that the amount claimed by the Operational Creditor is due. Counsel for the Operational Creditor submits that though the Corporate Debtor took time on earlier occasions stating that they would settle the matter, only ₹ 3 Lakhs out of ₹ 36 Lakhs was paid. The Counsel appearing for the Corporate Debtor submits that the Corporate Debtor is not in a position to discharge the amount due to the Operational Creditor and agreed for the CIRP to be initiated.
This is a fit case to admit and order initiation of Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor - petition admitted - moratorium declared.
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2021 (12) TMI 289 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Validity of termination of work orders - consistency and prohibition as per Section 20 of Insolvency and Bankruptcy Code, 2016 (IBC) and Section 238 of IBC - whether termination proceeding could not be initiated or continued under bar of moratorium of Section 14 of IBC? - invocation of performance bank guarantees.
Whether termination of Work Order No. 1 is in violation of provisional extension letter dated 30.03.2020 and/or Government’s order dated 08.06.2020? - HELD THAT:- The Corporate Debtor was awarded this work order on 20.03.2017 and has to complete the work within 15 months whereas after lapse of three years the construction has not been completed and thereafter, another three months upto 30.06.2020 was extended even though till 11.06.2020 the Corporate Debtor has completed only 76% of the work (See Pg. 29 of the Rejoinder). In exercise of the power given in clauses 59, 60 & 61 of the agreement, the Corporation terminated the contract. In the termination letter it is also mentioned that the provisional time extension vide office letter dated 30.03.2020 upto 30.06.2020 shall be treated as null and void after termination of work - There is nothing on record to presume that the clauses 59, 60 & 61 of the agreement were deleted, modified or varied. Thus, the termination of Work Order No. 1 is not in violation of extension order dated 30.03.2020.
Whether the termination of Work Order No. 2 is inviolation of Government Order dated 08.06.2020? - HELD THAT:- In the Government order 6 months extension is granted to discharge the obligation under the contract to those awardees of contracts who are not in default for their obligation prior to 19.02.2020, whereas, the Corporate Debtor is defaulter prior to 19.02.2020. Therefore, the Corporate Debtor is not entitled to get the advantage of aforesaid Government order. Thus, it is not convincing that the termination of Work Order No. 2 is in violation of Government order.
Whether termination of work orders are in violation of provisions of Sections 14 & 238 of IBC? - HELD THAT:- Admittedly, the Appellant (Corporation) is neither supplying any goods or services to the Corporate Debtor in terms of Section 14(2) nor is it recovering any property that is in possession or occupation of the Corporate Debtor as the owner or lessor of such property as envisioned under Section 14(1)(d). This is not a case in which IRP/RP considers that the supply of goods or services critical to protect and preserve the value of the Corporate Debt or and managed the operations of such Corporate Debtor as a going concern, then supply of such goods or services shall not be terminated - In the present case, the Appellant (Corporation) was availing the services of the Corporate Debtor for construction of building. Thus, Section 14 is indeed not applicable to the present case.
In the present case, there is no factual analysis on how the termination of work orders would put survival of the Corporate Debtor in jeopardize - the termination of work orders are not in violation of government order dated 08.06.2020 and Section 14 and 238 of IBC. Hence, the Adjudicating Authority does not have any residuary jurisdiction under Section 60 (5) (c) of IBCE to entertain the contractual dispute between the Appellant (Corporation) and the Corporate Debtor.
Whether the invocation of bank guarantee was illegal? - HELD THAT:- As it is already held that the termination of work orders are not in violation of provisional extension letter dated 30.03.2020 and Government order dated 08.06.2020, so also in violation of provisions of Sections 14 and 238 of IBC, the findings of Ld. Adjudicating Authority are erroneous.Resultantly, the invocation of bank guarantee by the Appellant was not illegal.
In the present facts, the Adjudicating Authority cannot exercise the jurisdiction under Section 60(5) (c) of IBC in relation to contractual dispute between the Appellant (Corporation) and the Corporate Debtor - Appeal allowed - decided in favor of appellant.
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2021 (12) TMI 288 - NATIONAL COMPANY LAW TRIBUNAL , NEW DELHI BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - main contention of the Financial Creditor is that the IBMS charges have not been properly used for the purposes for which they have been charged under clause 11.2 of the agreement - existence of debt and dispute or not - HELD THAT:- The provision for IBMS has been made in order to pay maintenance bills, other charges raised by the maintenance agency, etc. It has been stated said in clause of the agreement that the IBMS charges cannot be utilised for any other purposes other than that has been mentioned in the said clause. The Corporate Debtor has himself admitted that the amount has been utilized for the purpose of construction of a club, restaurant, swimming pool and 62-seatermini theatre.
Since, the financial creditor satisfies all the requirement of section 7 of IBC, 2016, it is satisfying that the applicant/Financial Creditor has made out a case under Section 7 IBC for admission and a clear case of default has been established. Hence, the Corporate Insolvency Resolution Process of Corporate Debtor is initiated from the date of this order and the captioned application filed by Financial Creditor is admitted.
Application admitted - moratorium declared.
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2021 (12) TMI 287 - NATIONAL COMPANY LAW TRIBUNAL , NEW DELHI BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- The Corporate Debtor has taken objection regarding some pre-existing dispute between the parties regarding services provided by the Applicant. Further, it is stated by the Corporate Debtor that it had suffered losses due to conduct of the Applicant during his tenure. It is further submitted by the Corporate Debtor that no amount is due towards the Corporate Debtor since a sum of ₹ 15 Lakhs in cash has already been paid to the Applicant - there is no necessity of going into the issues alleged by the Corporate Debtor as there is a specific admission made by the Corporate Debtor as regards to the undisputed debt of ₹ 9 Lakhs which is due and payable by it to the Applicant and which is more than the threshold limit ₹ 1,00,000/-. The same is clearly recorded in the order of this Adjudicating Authority dated 27.01.2021.
Since the admission of debt made on part of the Corporate Debtor is for an amount, which is more than ₹ 1,00,000/-, therefore the same is sufficient to trigger CIR Process against the Corporate Debtor.
Thus it is concluded that a default has occurred on part of the Corporate Debtor and the same has also been admitted by the Corporate Debtor - application admitted - moratorium declared.
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2021 (12) TMI 286 - NATIONAL COMPANY LAW TRIBUNAL , NEW DELHI BENCH
Validity of ex-parte order - rule 11 of NCLT Rules, 2016 - whether inherent power u/r 11 can be used when alternate remedy is available? - HELD THAT:- The present Application has been filed by the Corporate Debtor on 10.6.2019 i.e., after two months after the date of admission of CIRP. On careful reading of the present Application, it is more than clear that the applicant seeks to recall/review of the Admission Order dated 10.4.2019 along with the ex-parte order dated 8.2.2019. Both the said orders have been passed by this Authority after careful consideration of facts and circumstances including the credible evidence placed in support of the fact that Corporate Debtor has been properly served with notice under section 8 of the IB Code, the main petition seeking initiation of CIRP as well as further dates of hearings before this Authority.
The Operational Creditor has relied upon various case laws which deal with power of review of orders passed by this Authority and powers available under Rule 11 of the NCLT Rules, 2016. The facts and circumstances of the present Application clearly indicate that the Applicant is effectively seeking recall/setting aside of ex-parte order dated 8.2.2019 and CIRP admission order dated 10.4.2019. It is noted that the said orders have been passed after due consideration of facts and circumstances of the case. Therefore, there is no substance in the arguments advanced by Corporate Debtor that the said Orders can be recalled/reviewed by this Tribunal.
The Hon'ble Allahabad High Court in the matter of Khan Enterprises Vs. National Company Law Tribunal and Ors. M/S KHAN ENTERPRISES VERSUS THE NATIONAL COMPANY LAW TRIBUNAL AND 4 OTHERS [2018 (9) TMI 1908 - ALLAHABAD HIGH COURT] has inter alia, held that "it is admitted that there is no provision in I.B.C. for review of the order admitting a petition filed under Section 9 of the I.B.C. It is also not disputed in law that the power to review cannot be exercised unless there is specific provision for the same." Similar views have been propounded in various other case laws by the Hon'ble NCLAT and relied upon by the Operational Creditor.
Application dismissed.
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2021 (12) TMI 246 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Validity of Resolution Plan - the application of the then Resolution Professional under Section 30(6) of the IBC has been allowed without considering the claim of the Appellant - whether the claim filed by the Appellant is within the time period specified in the public announcement and the extended time period of 90 days included in Regulation 12 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016? - whether a claim, if filed after the specified time period, could be considered at this belated stage? - HELD THAT:- It is admitted by the Appellant that he filed the claim on 1.1.2020. The affidavit submitted by erstwhile RP Respondent No. 2 (diary no. 30107 dated 20.8.2021) makes it clear that the 90 days” period after the public announcement as allowed in the CIRP Regulations (supra) for filing proof of claims expired on 9.2.2019. Moreover the RP vide letter dated 3.1.2020 communicated to the Appellant the fact of rejection of his claim and also that the Resolution Plan is already under consideration of the Adjudicating Authority. Therefore, the fact of rejection of his claim was within the knowledge of Appellant from 3.1.2020. It is noted that the Resolution Plan was submitted for approval to the Adjudicating Authority on 4.9.2020, which was much before the claim was filed by the Appellant. The erstwhile RP has stated in his additional affidavit that the claim of the Appellant did not form part of the Resolution Plan as it was filed belatedly and rejected by the Resolution Professional.
The Resolution Plan as approved by the Adjudicating Authority, and which does not include the claim of Appellant since it was filed much belatedly, does not need any interference - Appeal dismissed.
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2021 (12) TMI 245 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Validity of approved resolution plan - approved resolution plan challenged on the ground that it affects the Appellant’s rights regarding termination of the existing Leave and Licence Agreement dated 16.6.2017 with Respondent No. 1 and refund of the security deposit upon delivery of the premises and on the ground that the order has been passed without giving any notice or opportunity of hearing to the Appellant - HELD THAT:- It is clear that there is a provision in the Licence Agreement for unilateral termination of the agreement without assignment of any reason by furnishing six months’ notice. Clause 12(c) makes the licencee liable for paying all outstanding payments which include rent, water charges and electricity charges calculated on the date of termination or the date of handover of the licensed premises. It is also noticed that a formal notice was given vide e-mail dated 27.4.2021 by the Successful Resolution Applicant SIFY Technologies Limited to he Appellant (attached at pp. 258-261 of Appeal paperbook, Vol. II), even if we consider this to be a formal notice under the leave and licence agreement and Successful Resolution Applicant to be responsible as a signing authority in the said agreement, more than 7 months have passed since the sending of this notice. Even then, as per clause 12 (b) of the licence agreement, unilateral termination of the agreement has been enforced by the Successful Resolution Applicant.
It is also worth noting that the Appellant continued to enjoy the said premises after the approval of the Resolution Plan by the Adjudicating Authority and also continued to pay the licence fee as well as water and electricity charges. He was well aware of the status of the said premises as contained in the successful resolution plan and was asked to vacate the premises vide e-mail of Sify Technologies dated 30.11.2020. He has enjoyed the premises for over one year now from the date he was sent mail on 30.11.2020. Therefore, it would not be correct for the appellant to now say at this time and stage that his rights under the Licence Agreement should be protected, more so as clause 12(b) of the Licence Agreement does provide the possibility of unilateral termination of the Licence Agreement after the period of six months from giving notice - In the present case, even though the Licence Agreement’s termination was included in the Resolution Plan, we find that the Successful Resolution Applicant followed the Licence Agreement as per clause 12 (a) in terminating the agreement. Thus he has not violated the rights of the Appellant in the Licence Agreement.
The Appellant may be given time to shift its operation to another premises within two months from the date of this order. The Appellant will be liable to pay the licence fee, water and electricity charges to the Successful Resolution Applicant, till the time it vacates the said premises and simultaneously the Successful Resolution Applicant shall return the security deposit amount in accordance with the lease agreement to the Appellant - Appeal disposed off.
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2021 (12) TMI 244 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , CHENNAI BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - Time limitation - Evidence of existence of debt - HELD THAT:- In the instant case, the ‘Appellant’ had confirmed the ‘default’ and the same is undisputed. Indisputably, to secure the repayment of ₹ 31,75,00,000/- invested by the 2nd and 3rd Respondents, the ‘Corporate Debtor’ had created numerous securities to and in favour of 2nd and 3rd Respondents like that of promissory notes, purchase option agreement, mortgage of freehold lands, mortgage of residential flats on an exclusive charge basis, which was contractually financed by corporate guarantee and first personal guarantees from it promoters.
Time frame for admission - HELD THAT:- Before an admission of an application filed under Section 7 of the I&B Code, by a ‘financial creditor’, an ‘Adjudicating Authority’ as per Section 7(4) of the Code is to find out the existence of the default within 14 days of receipt of the application, as mentioned in Section 7(4). On being satisfied that such a default took place, then, an ‘Adjudicating Authority’ may admit such application, subject to rectification of defect, which the proviso in Section 7(5) of the Code enjoins that it must be done within 7 days of receipt of such notice from the ‘Adjudicating Authority’ by the ‘Applicant’ - As per Section 7(6) of the Code, the CIRP starts from the date of admission of the application. The ‘Adjudicating Authority’ as per Section 7(7) is to communicate the order either or accepting or rejecting the application of the ‘financial creditor’ or the ‘Corporate Debtor’ within 7 days of such admission or rejection.
Debt and default or not - HELD THAT:- Ordinarily, an ‘Adjudicating Authority’ is not required to go into the claim or counter claim made by the parties except to ascertain whether or not the record is complete and whether or not there is a ‘debt’ and ‘default’ committed by the ‘Corporate Debtor’. Always a ‘Corporate Debtor’ has the option to point out that a ‘default’ had not occurred in the sense that ‘debt’ including a disputed claim is not due - it is open to the ‘Corporate Debtor’ or its Directors to mention that/point out that ‘debt’ is not payable by the ‘Corporate Debtor’ either in Law or on facts of a given case. A ‘debt’ may not be due if it is not payable either on facts of a given case or in Law.
Evidence of existence of debt - HELD THAT:- When there is any change in the Directors or ownership’, the ‘Power of Attorney’, Authorisation letter need not be executed once again and that the subsisting authorisation is good enough in Law, all the more when the said authorisation was not revoked. Also that, in any event, no prejudice is caused to the ‘Corporate Debtor’ in regard to the aspect of ‘name change’ of the 2nd and 3rd Respondents. Further that, the aspect of name change will not affect the ‘default’ committed by the ‘Corporate Debtor’ especially when the ‘Corporate Debtor’ admittedly had defaulted in meeting its obligations to the 2nd and 3rd Respondents as a result of which the ‘CIRP’ was initiated by the 2nd and 3rd Respondents against the ‘Corporate Debtor’ by filing the Section 7 application under I&B Code before the ‘Adjudicating Authority’ - It cannot be gainsaid that the ‘Debenture Holders’ even in the absence of ‘Debenture Trustees’ is entitled to file an ‘Application’ under the I&B Code seeking necessary relief. In short, the right of the 2nd and 3rd Respondent is very much saved in the ‘Debenture Trust Deed’ - this ‘Tribunal’ holds that they do have a valid and legal right to file the Section 7 Application under the I&B Code, 2016.
This ‘Tribunal’ considering the facts and circumstances of the case comes to a consequent conclusion that the existence of ‘financial debt’ and the ‘default’ of ‘financial debt’ were established on the part of the ‘Financial Creditors’/Applicant’ and ‘debt’ in question is payable not only in Law and also in fact - this ‘Tribunal’ unhesitatingly holds that the ‘impugned order’ passed by the ‘Adjudicating Authority’ dated 12.8.2021 (National Company Law Tribunal, Division Bench II, Chennai) in IBA/149/2020 in admitting the Application (Filed under Section 7 of the I&B Code) by the ‘Financial Creditors’/Applicants is free from any legal infirmities.
Appeal dismissed.
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2021 (12) TMI 191 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , CHENNAI
Validity of commercial arrangement that was prevailing between the parties immediately before commencement of the CIRP of both the parties - Section 14(2A) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- It is decided not to go deep into the merits of the main Appeal and also not expressing any opinion about the merits of the matter, for the reason that this Tribunal cannot decide the contractual matters in a summary jurisdiction. However, taking into consideration, the paramount interest of the parties for the reason that both the Companies i.e. KSK Mahanadi and Raigarh Champa are under CIRP, the supplies are to be made by the Raigarh Champa to the KSK Mahanadi and in turn the KSK Mahanadi has to pay the charges for the supplies to keep both the companies as a going concern.
This Tribunal is conscious of the decision of the Hon’ble Supreme Court in re-Tata Consultancy Services [2021 (11) TMI 798 - SUPREME COURT] where the Hon’ble Supreme Court held that the NCLT and NCLAT cannot rewrite the terms of Contract Agreement.
The Appellant is hereby directed to pay 50% of the outstanding due to the Resolution Professional of the 1st Respondent within one month from today - Appellant is hereby directed to pay 50% of the bills/invoices to be raised or raise by the Respondent No.1 periodically without fail - Appellant cannot ask for any adjustments of the amount already paid to the 1st Respondent.
The matter is posted on 15.12.2021.
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2021 (12) TMI 190 - NATIONAL COMPANY LAW TRIBUNAL , MUMBAI BENCH
Seeking direction to remove / release the lien on the said property of the Corporate Debtor - HELD THAT:- Hon’ble Supreme Court in the case of Committee of Creditors of Essar Steel India Limited vs. Satish Kumar Gupta and Ors. [2019 (11) TMI 731 - SUPREME COURT], where it was held that successful resolution Applicant cannot suddenly be faced with "undecided" claims after the resolution plan submitted by him has been accepted as this would amount to a hydra head popping up which would throw into uncertainty amounts payable by a prospective resolution Applicant who successfully take over the business of the corporate debtor.
The Respondents are directed to forthwith lift lien on property and file claim before Liquidator as Operational Creditor - application disposed off.
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2021 (12) TMI 189 - NATIONAL COMPANY LAW TRIBUNAL , KOLKATA BENCH
Seeking extension of the Corporate Insolvency Resolution Process (CIRP) period by 90 days beyond 31.05.2021 - seeking exclusion of period on account of lockdown and difficulties faced from 01.01.2021 till 31.05.2021 - HELD THAT:- The application for extension has been filed in the month of May 2021. The explanation given seeking for exclusion of time from 01.01.2021 to 31.05.2021, is not satisfying as there was no lockdown imposed by the Government from 01.01.2021 to 15.05.2021, hence exclusion of the CIRP period from 01.01.2021 to 15.05.2021, cannot be granted. The Resolution Professional has been conducting meetings and has been performing her duties even during the period sought for exclusion.
However, the object of the Code is to revive the Company and in view of the fact that a Resolution Plan is awaited, the exclusion of the time from the date the application was under consideration of this Adjudicating Authority that is from 14.05.2021 till the date of this order is granted and extension of 90 days to the CIRP period is also granted.
Application dismissed.
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2021 (12) TMI 188 - NATIONAL COMPANY LAW TRIBUNAL , NEW DELHI BENCH
Seeking direction to Resolution Professional to not submit the Resolution Plan before the CoC - seeking stay on the process of voting to be held on 10.08.2021, on the two Resolution Plans - seeking restraint on members of the Association from name calling or defaming the parties herein - HELD THAT:- It is seen that the applicants belong to the "class of home buyers" and being the class of creditors, they have filed this application to stay the process of voting to be held on 10.08.2021 on the two resolution plans and also a direction to the resolution professional not to submit the resolution plan.
Hon'ble Supreme Court in the Jaypee Case [2021 (3) TMI 1143 - SUPREME COURT] held that "To sum up this part of discussion, in our view, after approval of the resolution plan of NBCC by CoC, where homebuyers as a class assented to the plan, an individual homebuyer or association cannot maintain any challenge to the resolution plan nor could be treated as carrying any legal grievance".
Considering this position of law and particularly this fact that the CoC has already approved the resolution plan on 17.08.2021 - Application dismissed being not maintainable.
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2021 (12) TMI 187 - NATIONAL COMPANY LAW TRIBUNAL , MUMBAI BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - deduction of tax at source also made - HELD THAT:- The contentions raised by the Petitioner during the course of arguments seeming to suggest that the defects were subsequently cured by the Petitioner is in itself an admission of dispute and the Petition is required to be dismissed on that ground alone. Therefore, in the lights of Mobilox Innovations Pvt. Ltd. vs. Kirusa Software Pvt. Ltd. [2017 (9) TMI 1270 - SUPREME COURT] this bench is convinced that this Petition is liable to be rejected.
It is beyond reasonable doubt that a pre-existing dispute remained outstanding on the date of issuance of the statutory notice as well as on the date of filing of the Petition.
Petition dismissed.
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2021 (12) TMI 186 - NATIONAL COMPANY LAW TRIBUNAL , CHANDIGARH BENCH
Jurisdisction - power of Tribunal to entertain the instant CA - Whether the attachment of the properties of the corporate debtor made under the provisions of the Maharashtra Protection of Interests of Depositors (In Financial Establishments) Act, 1999 (MPID Act) vide notification dated 28.08.2014 i.e. prior to the date of initiation of CIRP against the corporate debtor is liable to be de-attached in view of the overriding affect under Section 238 and other provisions of IBC 2016? - HELD THAT:- The Hon'ble Supreme Court in Innoventive Industries Ltd. v. ICICI Bank & another, [2017 (9) TMI 58 - SUPREME COURT], while dealing with the overriding effect of the Code under Section 238 of IBC with reference to Maharashtra Relief Undertakings (Special Provisions) Act, 1958 has held that the Maharashtra Act cannot stand in the way of the corporate insolvency resolution process under the Code.
The Hon'ble High Court of Bombay in Anil Kohil case [2020 (11) TMI 677 - BOMBAY HIGH COURT] while setting aside the order of the NCLT wherein it was directed that the bank account of the corporate debtor to be defreezed, held that the designated court under Section 7 of the MPID Act alone is having jurisdiction to decide the validity of any order passed under MPID Act. However, in our considered view the said judgment has no application to the facts of the present case in view of the observations made in Para 26 of the said judgment itself. In the said judgment the Hon'ble High Court of Bombay after considering the judgment of the Hon'ble Apex Court in Innoventive Industries Limited [2017 (9) TMI 58 - SUPREME COURT] categorically observed that the position of law as held by the Hon'ble Apex Court in Innoventive Industries Limited is well settled and there cannot be any dispute about the same however, in the case on hand i.e. in Anil Kohil's case, the learned counsel for the respondent i.e. the RP of the corporate debtor therein has not argued that the provisions of MPID Act are repugnant with the provisions of I&B Code whereas in the instant case both the counsels argued elaborately on the issue of repugnancy of the provisions of MPID Act to that of provisions of IBC 2016.
The respondents are directed to release/de-attach all the assets/properties of the corporate debtor and to cooperate with the RP and to supply all the necessary documents and information pertaining to the property of the corporate debtor - the respondents are permitted to file their claims, if any, with the RP within two weeks from the date of receipt of this order and in such an event the RP shall consider the same in accordance with the Code and Regulations made thereunder and shall not reject the same on the ground of delay in submission of the claims.
Application disposed off.
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2021 (12) TMI 185 - NATIONAL COMPANY LAW TRIBUNAL , NEW DELHI BENCH
Seeking exclusion of 105 days from the CIRP period of the Corporate Debtor - seeking direction to the CoC of the Corporate Debtor to consider the Resolution Plan on PRA in time-bound manner - HELD THAT:- It is the prime intent of IBC and also held by the Hon'ble Apex Court that resolution and not liquidation should always be considered with all possibilities.
The grant of time to Resolution Professional and CoC for moving towards achieving Resolution of the Corporate Debtor will be in the interest of all Home Buyers, who are also interested in considering the Plans. The only lacunae in the process of considering of Plan by CoC beyond prescribed period of CIRP. If the same is considered by this Bench for exclusion or extension there is possibility of Resolution forthcoming. The Hon'ble Supreme Court has also held that the wisdom of CoC be not interfered, unless same is in violation of law.
The Resolution with respect to exclusion/extension was passed by CoC beyond threshold limit of 330 days as laid down in the Code. Hence, the Plans should not have been considered. If exclusion or extension is not considered the only option will be to send the Corporate Debtor in liquidation.
This application is allowed by extending the CIRP period for further 50 days from today with the direction to allow the CoC to consider the Resolution Plans already placed before CoC or any other plans, if received within ten days of this order and complete the entire process strictly within the time granted.
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2021 (12) TMI 156 - NATIONAL COMPANY LAW TRIBUNAL , GUWAHATI BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- Section 3(7) of IBC 2016 reads that “Corporate Person” means a Company as defined in clause (20) of section 2 of the Companies Act, 2013, a limited liability partnership, as defined in clause (n) of sub-section (1) of section 2 of the Limited Liability Partnership Act, 2008, or any other person incorporated with limited liability under any law for the time being in force but shall not include any financial service provider.
It is evident from the said Notification dated 18th November, 2019, that the said Rules shall apply to such Financial Service Providers of categories as may be notified by the Central Government under Section 227 of the IB Code, 2016 from time to time and pursuant to the exercise of power contained in Section 227 of the IB code, 2016 the Central Government has chosen to notify NBFC with the assets of ₹ 500 crore or more as per last audited balance sheet (Notification dated 18.11.2021) and it is also seen from the Rule framed by the Central Government that any one cannot initiate proceedings seeking for Corporate Insolvency Resolution Process (CIRP) of the Financial Service Provider and it is only the Regulators who have been given the power to initiate the proceedings before the Adjudicating Authority namely this Tribunal.
The Corporate Debtors before this Hon’ble Tribunal is a Financial Service Provider Company as per the above sections, rules etc., and we don’t find any merit in the arguments of the Counsel for the FC and the submissions of the FC that the Application filed by it under Section 7 of IBC is admitted and CIRP initiated even though it has admitted that the Total Assets of the CD is ₹ 15.63 Crores only which is well below the stipulated limit amount of ₹ 500.00 crores - Applicant FC has not followed the Guidelines and filed this Application under Section 7 of IBC in respect of a Financial Service Provider without following the due process of law.
Application dismissed.
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