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Insolvency and Bankruptcy - Case Laws

Showing 1 to 20 of 1761 Records

• 2022 (12) TMI 1510 - SUPREME COURT
  

  Eligibility to submit the resolution plan under Section 29A(f) of the IBC - rejection on the ground that the resolution applicant was ineligible under Section 29A(f) of the IBC at the time of submission of the resolution plan - HELD THAT:- Since the Court is apprised of the fact that substantially higher offers are now made available to the CoC, it would be appropriate and proper that the CoC is permitted to proceed further on the basis of the fresh EoIs which have been received. Since the subsequent communication dated 16 February 2021 issued by BSE operates to lift the restraint status that was imposed on the appellants, it would be appropriate to permit the appellants to submit a resolution plan and an EoI to the CoC within a period of thirty days.

  The bank guarantees and the earnest money which were submitted by the appellants with their resolution plan shall be returned back to the appellants so as to facilitate the submission of a fresh resolution plan together with a fresh bank guarantee - The period for the completion of the process shall stand extended by sixty days from the date of this order. After completing the process, the RP shall file a fresh application before the adjudicating authority for approval of the resolution plan in terms of the provisions of Section 31 of the IBC.

  The impugned judgment and order of the NCLAT is set aside and substituted by the directions - Appeal disposed off.

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• 2022 (12) TMI 1504 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH, NEW DELHI
  

  Seeking revival of appeal - Appellants are BPTP Spacio Park Serene Flat Allottees Welfare Association - HELD THAT:- Liberty granted to the Appellant to revive this Appeal in event the order dated 07.12.2022 does not survive. It is also noticed that in Company Appeal (AT) (Ins.) No. 1382 of 2022, the interim order was passed on 18.11.2022.

  Appeal disposed off.

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• 2022 (12) TMI 1434 - NATIONAL COMPANY LAW TRIBUNAL AHMEDABAD
  

  Approval of Resolution Plan - Section 30(6) read with Section 31(1) of the Insolvency & Bankruptcy Code, 2016 read with Regulation 39(4) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 - HELD THAT:- All requirements provided under Section 30(2) of Code and Regulation 36 to 39 of CIRP Regulations, 2016 have been complied with - It is also found that the Resolution Plan addresses the cause for default and contains measures to run the Corporate Debtor in future - it is also found Resolution plan is both feasible and viable as held by CoC and it also contains provision for its effective implementation.

  The approved Resolution Plan shall become effective from the date of passing of this order - the order of moratorium dated 01.09.2020 passed by this Adjudicating Authority under Section 14 of the Code shall cease to have effect from the date of this order.

  Application allowed.

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• 2022 (12) TMI 1429 - SUPREME COURT
  

  Maintainability of appeal - Duties and functions carried out by IRP. - Disallowing certain CIRP expenses claimed by the Appellant/IRP - HELD THAT:- There are no reason to interfere with the order impugned. The civil appeal is, accordingly, dismissed - However, liberty granted to the appellant to file an application before the NCLAT in reference to the facts which have been noticed in Paragraphs 14 and 15 of the order impugned dated 30th May, 2022.

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• 2022 (12) TMI 1427 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH, NEW DELHI
  

  Application filed under Section 9 of the IBC, 2016 rejected - rejection on the ground that it does not fulfil the threshold as prescribed under Section 4 proviso where minimum default amount has been increased to Rs. 1 Crores by Notification of MCA dated 24.03.2020 - HELD THAT:- The Application has been filed by the Operational Creditor on 01.12.2021 for an amount of Rs. 42,94,620/-. The issue raised in the Appeal is fully covered by the Judgement of this Tribunal in the matter of HYLINE MEDICONZ PRIVATE LIMITED VERSUS ANANDALOKE MEDICAL CENTRE PRIVATE LIMITED [2022 (9) TMI 954 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI] where it was held that no error has been committed by the Adjudicating Authority in rejecting Section 9 application filed by the Appellant on 18.01.2021 which did not fulfil the threshold of Rupees One Crore.

  Appeal dismissed.

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• 2022 (12) TMI 1411 - PUNJAB AND HARYANA HIGH COURT
  

  Appointment of Interim Resolution Professional - HELD THAT:- Learned senior counsel has referred to the proceedings dated 08.08.2022, wherein Mr. B.C. Bhandari of SREI Infrastructure Finance Ltd. appeared in those proceedings. It is further submitted that while hearing the arguments, before passing the impugned order, this fact was brought to notice of NCLT, Chandigarh that proceedings are already pending before NCLT, Mumbai Bench with regard to framing of a scheme for the purpose of ascertaining the claim of the creditors and said case is now listed for 25.01.2023. It is also submitted that there is every possibility that the entire settlement may be arrived in those proceedings.

  Notice of motion for 07.02.2023.

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• 2022 (12) TMI 1386 - NATIONAL COMPANY LAW TRIBUNAL AHMEDABAD
  

  Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- It is evident that the debt is due and payable and default has occurred. The present application is complete in terms of Section 7(5) of the Code and is within limitation. The applicant is entitled to claim its dues, establishing the default in payment of the financial debt beyond doubt. In light of the facts and records the present application is admitted and CIRP is ordered to be initiated against corporate debtor.

  As a consequence of the application being admitted in terms of Section 7(5) of IBC, 2016, moratorium as envisaged under the provisions of Section 14(1) shall follow in relation to the Corporate debtor, prohibiting actions as per clauses (a) to (d) of Section 14(1) of the Code.

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• 2022 (12) TMI 1299 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
  

  Approval of resolution plan - several applications - HELD THAT:- Although we have disposed of several applications today but still there are different I.A.s filed in the IL&FS group. These matters pertain to year 2019, 2020, 2021 & 2022.

  There being several applications, we request Mr. Raunak Dhillon to prepare details of all applications year wise. It is needless to say that for those applications whose chart is prepared it need not be prepared again - List these applications on 19th and 20th January, 2023 at 02.00 P.M.

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• 2022 (12) TMI 1298 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
  

  Seeking to intervene in the proceedings filed by the Liquidator of the Corporate Debtor - seeking clarification as to whether he is allowed to scrutinise and investigate the transactions executed by the Directors of the ‘Corporate Debtor’ beyond two years prior to the date of ICD and also to see the relevant documents from the Promoters - HELD THAT:- We do not find any illegality in the observation of the Learned Adjudicating Authority that there is no provision in the Code, with respect to impleadment of any Creditor apart from the Creditors who have triggered the CIRP. Needless to ad, the Appellant is at liberty to pursue other legal remedies, if so advised.

  Appeal dismissed.

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• 2022 (12) TMI 1245 - NATIONAL COMPANY LAW TRIBUNAL , CHENNAI BENCH
  

  Claim of applicant rejected by RP - rejection on the ground that the claim amount is not based on any valid loan agreement - main bone of contention of the Respondent is that there was no payment received by the Corporate Debtor form the Applicant and the books of accounts do not have ledger Account in the name of the applicant, Tulip Trade Link - HELD THAT:- It could be seen that the Applicant has not placed on record any financial contract in order to substantiate the claim filed before the RP. Further, from the submissions made it could be seen that there is no contract/agreement entered into between the parties for the disbursement of the said loan to the Corporate Debtor.

  It could be seen that the term financial debt denotes a 'debt' along with interest, which is disbursed against the consideration for the time value of money. In the present case, the amount has been disbursed to the Corporate Debtor, however there is no document placed on record to show as to what is the interest which is agreed between the parties - it could be seen that the Applicant himself has left it to the discretion of this Tribunal to fix the rate of interest, which itself shows that there is no rate of interest agreed between the parties. Further, the Applicant has also not attached the Form 26AS in order to prove that they have deducted TDS. It could be seen that the Applicant has placed on record a letter from its banker viz. Bank of Baroda which states that a sum of Rs. 26,00,000/- has been transferred by way of RTGS to the Corporate Debtor. Thus, the amount has been disbursed to the Corporate Debtor, however the Applicant has miserably failed to establish that the said debt would qualify as financial debt.

  It could be seen that there is no dispute between the parties that the amount was received through banking channel. In the said circumstances, we hereby direct the Respondent to admit the claim of the Applicant to the tune of Rs. 26,00,000/- without interest, under the category of other creditors - application disposed off.

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• 2022 (12) TMI 1202 - CALCUTTA HIGH COURT
  

  Grant of ad interim order restraining the respondent company who is in liquidation from taking possession or control of the pledge shares or to interfere with the possession of the physical share certificates of the petitioner - HELD THAT:- NCLT and NCLAT are constituted under Section 408 and 410 of the Companies Act, 2013 but without specifically defining the power and functions of NCLT. Section 408 of the Companies Act states that the Central Government shall constitute a National Company Law Tribunal to exercise and discharge such powers and functions as are or may be conferred on it by or under the Companies Act or any other law for the time being in force. The matters fall within the jurisdiction of the NCLT, under the Companies Act, 2013 lie scattered all over the Companies Act, therefore, Section 420 and 424 of the Companies Act, 2013 indicates in brought terms, merely the procedure to be followed by the NCLT before passing any order. There is no separate provision in the Companies Act exclusively dealing with the jurisdiction and powers of NCLT.

  In Sub-Sections (4) and (5) of Section 60 of the IBC, 2016 give an indication respectively about the powers and jurisdiction of the NCLT. Sub- Section 4 of Section 60 of IBC, 2016 states that the NCLT will have the powers of DRT as contemplated under part III of the Code for the purpose of sub Section (2). Sub Section (2) deals with situation where the Insolvency Resolution or Liquidation of Bankruptcy of the corporate guarantor or personal guarantor of a Corporate Debtor is already pending before the NCLT - In the present case, the petitioner though had filed the civil suit praying for decree as well as the declaration with respect of the equity shares of the respondent and subsequently the petitioner has invoked the provisions of Section 7 of IBC which was duly admitted by the NCLT and the petitioner has filed the similar claim before the Liquidator.

  As per Section 238 of the IBC, 2016 is having override effect in any other law for the time being in force. In view of my prima facie findings that this Court cannot pass any interim order at this stage. This Court is of the view that the matter in issue in the suit can be more appropriately and effectively decided and adjudicated by the NCLT. In the present case, Section 430 of the Companies Act, 2013 itself provides an additional bar by stating that no injunction shall be granted by any civil court in respect of any action taken or to be taken in pursuance of any power conferred on the NCLT by the Companies Act, 2013.

  This Court finds that the petitioner is not entitled to get an ad interim order - Application disposed off.

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• 2022 (12) TMI 1201 - MADRAS HIGH COURT
  

  Permission to Liquidator of the respondent Company to withdraw a sum of Rs.15,55,290.10 which is lying to the credit of Application No.3703 of 2019 - whether the proceedings initiated under Insolvency and Bankruptcy Code, 2016 can replace the execution of the arbitral awards? - HELD THAT:- Admittedly, the appellant finance company herein is an unsecured creditor. As per Section 53(1) of Insolvency and Bankruptcy Code, 2016, the priority to distribute the proceeds from the sale of the liquidation assets to the unsecured creditors shall be after distributing of workmen dues, wages and unpaid dues to employees.

  The Hon'ble Apex Court in the judgment in SWISS RIBBONS PVT. LTD. AND ANR. VERSUS UNION OF INDIA AND ORS. [2019 (1) TMI 1508 - SUPREME COURT] had upheld the validity of Section 53(1) of Insolvency Code, which prescribes priority of distribution of assets in liquidation.

  In the present case, the respondent has submitted its proof of claim in the capacity as the Liquidator of the respondent Company claiming (i) principal amount of Rs.1,27,77,777.05 in terms of the Trip Loan agreement dated 17.4.2018; (ii) Legal charges of Rs.24,135/-; and (iii) Additional Financial charges of Rs.77,56,165/- in respect of the very same claim. Therefore, the Liquidator of the respondent Company seeks to recover its dues qua the applicant/respondent Company in accordance with the procedure envisaged under Insolvency and Bankruptcy Code, 2016 - a recovery certificate issued in respect of the same claim, which is essentially a crystallization of the claim through the process of adjudication, had also be classified as a “financial debt” under Insolvency and Bankruptcy Code, 2016. Consequently, the nature of the underlying claim of the creditor, would determine the categorisation of the amount payable under the final decree passed adjudication of the same claim. The liability arising out of an arbitral award or a court decree would be categorised as either financial or operational debt depending on the nature of the underlying claim which stands crystallised through the arbitral or court proceedings.

  The appellant, as per Section 9 of Insolvency and Bankruptcy Code, 2016, is a Non Banking Finance Company and admittedly an unsecured financial creditor. As per the decisions laid down by the Hon'ble Supreme Court cited supra and Section 53 of Insolvency and Bankruptcy Code, 2016, the financial debts owed to unsecured creditors have to be distributed by the liquidator as per the preference set out under Section 53(1) of Insolvency and Bankruptcy Code, 2016 i.e after distributing the workmen dues, wages and unpaid dues to the employees - there are no reason to interfere with the decision of the learned Single Judge, hence, the instant appeal challenging the said order of the learned Single Judge is liable to be dismissed.

  Appeal dismissed.

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• 2022 (12) TMI 1200 - MADRAS HIGH COURT
  

  Scope of the IBC - CIRP - Effect of moratorium - proceedings where both the parties may gain out of the agreement/contract. - Dishonor of cheque - Time-lines for completion of the insolvency resolution process by the Adjudicatory Authority - delay in completion of the proceedings otherwise - Prayer to consider the issue in the public interest so that the object and purpose of the Code of 2016 is served and at the same time Sections 12 and 14 of the Code of 2016 are given effect to for the purpose sought to be achieved therein - HELD THAT:- The issue therein was in reference to the proceedings under Section 138 of the Negotiable Instruments Act, 1881, which was alleged to be outside the scope of Section 14 of the Code of 2016. The argument was not accepted by the Apex Court despite the proceeding not being exactly of civil nature, but having impact on the corporate debtor for a monetary obligation and it was held that such proceedings would come under the prohibition of Section 14 of the Code of 2016 - The primary focus of the legislation is to ensure revival and continuation of the corporate debtor by protecting it from its own management and from a corporate death by liquidation. The time-lines given therein have also been referred by the Apex Court as a measure to protect all its creditors and workers by seeing that the resolution process goes through as fast as possible. The reference of Section 85 of the Code of 2016 in Chapter II in Part III of the Code of 2016, has also been given to show the effect of admission of application, i.e., on the date of admission of the application, the moratorium period shall commence in respect of all the debts. The provision aforesaid does not refer to any other proceeding than in reference to the debts.

  Section 14 of the Code of 2016 is meant to refer those proceedings where even the corporate debtor would be a gainer, apart from third party, because third party would not fall under the definition of “creditor”. The bankruptcy proceedings remains generally to secure the institution by applying the measures given under the Code of 2016 and it is mainly in reference to the debt liability of the company and not to apply during the period of moratorium. It does not exclude application of other provisions to be given effect to and as the petitioner illustrated, in regard to the exclusion of the decree for specific performance where even a corporate debtor would be receiving the monies.

  The issue that now remains is about the maintainability of the public interest litigation. The writ petition has been filed showing it to be in public interest, but other than to refer to the work of research by the petitioner, who is pursuing her studies in Post Graduation, no other reason has been given to indicate the public interest. The purpose of public interest litigation is quite different than as construed by the petitioner - We, therefore, do not find the writ petition to be maintainable as a public interest litigation, but appreciating the work undertaken by the petitioner to seek interpretation of the provisions, this court has summarized the issue and made clarification of the issue by giving interpretation of the provisions therein.

  The writ petition is disposed of.

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• 2022 (12) TMI 1151 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH, NEW DELHI
  

  Protection and recognition of pledge created in favour of the Applicant under Share Pledge Agreement - appropriate directions to the Liquidator to not treat the pledge in favour of the Appellant as a preferential transaction during the pendency of the Appeal - HELD THAT:- The issue of attracting preferential transaction arising only after the Appellant has filed the claim. It was also brought to the notice by the Appellant that R1 carried out the auction despite knowing that the Appellant has lodged this claim in January, 2018 and has also accepted EMD money from a third party. The Appellant is suspecting that R1 has filed the application under Section 43 of the Code at a later stage being afterthought in order to save the illegal auction carried out by him.

  All the problem has erupted from the fact that the Appellants have mentioned about the share pledge agreement of November, 2016 as an extension of earlier share pledge agreement dated 10.06.2014 wherein the substantial portion of shares have been pledged as contemplated by the Appellants.

  It is also a matter of fact to be recorded that since 2017, Respondent No.1 was having the full knowledge of share pledge agreement of 2016 but he chooses to file Section 43 application after a delay of one year. This reflects, no doubt, that filing of petition under Section 43 of the Code alleging that Share Pledge Agreement dated November 2016 is at belated stage by the R1 to deny the Appellant of their status or rights as financial creditor.

  Incidentally, impugned pledged largely satisfied all ingredients of Section 43 of the Code. The impugned order dated 29.10.2020 although passed by two separate orders but in concurring orders both the Ld. Members arrived at the conclusion that the impugned pledge is a preferential transaction covered under Section 43 of the Code. The approach of the Appellant to give the colour of pledge as in the ordinary course of business is no longer res integra as per the law laid down under the Code - reliance can be placed in the case of PROFESSIONAL FOR JAYPEE INFRATECH LIMITED VERSUS AXIS BANK LIMITED ETC. ETC. [2020 (2) TMI 1259 - SUPREME COURT].

  This Pledge Agreement even of 2016 only reflects that the IVL/Appellant does not hold merit for the impugned pledge created during the ordinary course of business. Circumstantial evidence also suggests that there is no another pledge agreement dated 10.06.2014. Even the 2016 pledge agreement does not have backing a board resolution or registration which is a requirement for a listed company. No approval of RBI is available for 2016 pledge agreement. Hence, the Adjudicating Authority has rightly held in the impugned order dated 29.10.2020 that it is a preferential transaction covered under section 43 of the Code.

  Appeal dismissed.

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• 2022 (12) TMI 1111 - DELHI HIGH COURT
  

  Seeking early disposal of the complaints - case of the Petitioner is that it is one of the financial creditors of M/s Piyush IT Solutions Pvt. Ltd. and Respondent No.3 is the Resolution Professional (RP) appointed by the NCLT - non-adjudication of complaints dated 14th January, 2022 and 17^th January, 2022 filed by the Petitioner - HELD THAT:- Since the complaints are approximately 10 to 11 months old, the IBBI shall now take a decision on the same and communicate the same to the Petitioner within a period of one month from today.

  Considering the fact that the said application is also pending before the NCLT, the IBBI shall place its decision before the NCLT as well, for consideration.

  Petition disposed off.

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• 2022 (12) TMI 1061 - GAUHATI HIGH COURT
  

  Extension of period of insolvency resolution proceeding, beyond limit - whether upon an insolvency resolution proceeding being not completed within the period granted which also includes an extension, whether a subsequent extension would be permissible under the law? - whether the non-obstante provision in Section 60 (5) also includes the other provisions of the IBC of 2016? - whether irrespective of the provisions of the IBC of 2016 a subsequent extension can be granted on a resolution of approval by a majority of the members of the COC?

  HELD THAT:- A reading of the afore-extracted minutes of the resolution of the COC dated 12.08.2022 makes it discernible that there is a revised resolution plan submitted by the resolution applicant and circulated in the meeting and further that one of the secured creditor Bank has insisted upon to make an application to the adjudicating authority requesting for further extension of 30 days and in the said situation, the COC through its resolution had required the RP to approach the adjudicating authority for extension of the CIRP process by another 30 days.

  It is stated that the provisions in the resolution plan are being projected to be a part of the resolution proceeding to put the corporate debtor back on its feet. A reading of the afore-extracted portion of the resolution plan makes it discernible that the resolution plan is more of corporate takeover by means of lease/rent of the corporate debtor rather than it being a plan to bring the corporate debtor back to its feet. Taking over a corporate management under the law is governed by a different set of provision and it cannot per-se be said to be a part of a resolution plan to bring the corporate debtor back to its feet - as the reading of the resolution plan produced before the Court does not make it discernible that it is a resolution plan to bring the corporate debtor back to its feet, it cannot be accepted.

  A reading of section 60(5) makes it discernible that it is a provision with a non-obstante clause that ‘notwithstanding anything contrary contained in any other law’ gives a jurisdiction to the NCLT to entertain or dispose of any application or proceeding by or against the corporate debtor or corporate person; any claim made by or against the corporate debtor or corporate person including claims by or against any of its subsidiaries situated in India; or any question of priorities or any question of law or facts, arising out of or in relation to the insolvency resolution or liquidation proceedings of the corporate debtor or corporate person under this Code - section 60(5) of the IBC of 2016 would now have to be understood that an application under section 60 (5) to be maintainable notwithstanding anything contained in any other law would not also mean notwithstanding anything contained in the other provisions of the IBC of 2016 itself, but any other law other than the IBC of 2016. From such point of view when there is a specific provision on the question of maintainability of a claim for subsequent extension under the first proviso to section 12, the provisions of section 60(5) cannot be invoked to take advantage of the non-obstante clause to make an application for subsequent extension maintainable in spite of the specific bar on its maintainability provided in the first proviso to section 12.

  Petition allowed.

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• 2022 (12) TMI 1060 - DELHI HIGH COURT
  

  Seeking appointment of a sole arbitrator for the resolution of disputes between the parties - Section 11 of the Arbitration and Conciliation Act, 1996 - HELD THAT:- To answer this issue, it is necessary to go into the effect of the said order staying the institution or continuation of suits or other proceedings by any party or person or bank or company against IL&FS and its 348 Group Companies in any Court of law, tribunal, arbitration panel or arbitration authority. In this regard the plea of Mr. Mehta is that during the resolution process of a company, its creditor is obligated to necessarily lodge claims before a resolution professional, as a successful resolution applicant cannot suddenly be faced with undecided claims after the resolution plan submitted by him has been accepted. This would amount to a “hydra-head popping up” which would throw into uncertainty amounts payable by a prospective resolution applicant who successfully takes over the business of the corporate debtor.

  The purpose and rationale behind granting a moratorium is to ensure that the assets of the corporate debtor are protected, with an intention to keep the company a going concern and to use the period to strengthen its financial position. It means, the intent of the order of the NCLAT is to protect the assets of IL&FS and its group companies in order to make the resolution process effective/purposeful.

  In any case, the legality of the order dated March 12, 2020 confirming the order dated October 15, 2018 has been challenged before the Supreme Court. Since, the matter is pending before the Supreme Court and there is no stay of the NCLAT order, the petitioner has to await adjudication of the proceedings before the Supreme Court.

  Petition dismissed.

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• 2022 (12) TMI 1059 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , CHENNAI
  

  Condonation of delay in filing appeal - Sufficient Cause for not preferring an Appeal was provided or not - HELD THAT:- It comes to be known that the Leased Period of 15 years got expired on 16.01.2022 and the Corporate Debtor had lost his right to remain in possession of the property. But the Leased Premises was neither vacated nor the enhanced rent (which is outstanding) was paid to the Appellant till date - In the above background, the Appellant, had filed the application, seeking to direct the Respondent to vacate the Leased out premises immediately, in view of the expiry of lease, as on 16.01.2022. Alternatively, upon calculation of the CIRP period directed the Respondent to pay all the leased rental dues of Rs.2,82,63,305/- as on 28.02.2022 to the Appellant forthwith.

  Considering the fact, that a Lease, more than 12 months has to be registered in the manner known to Law and in accordance with Law and an unregistered Lease / Documents cannot be looked into by a Court of Law / Tribunal even for a collateral purpose, this Tribunal comes to a resultant conclusion that the Adjudicating Authority (Tribunal) had in the impugned order had mentioned that Dr. A.M. Arun had already paid the amount towards the Lease Rental and came to the right conclusion that IA/434(CHE)/2022 in CA/1/IB/2017 is not maintainable but had directed the Resolution Professional to pay the rent at Rs.2,25,000/- till the continuation of the ‘Corporate Insolvency Resolution Process’ (CIRP), which was agreed to be paid.

  Appeal dismissed.

  Application dismissed.

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• 2022 (12) TMI 1058 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
  

  Approval of Resolution Plan - Section 31 of the Insolvency and Bankruptcy Code, 2016 - Appellants raised several objections against the Resolution Plan, as approved by the CoC, being discriminatory towards ‘Operational Creditors’ - HELD THAT:- In the instant case, what has to be kept in mind is that the ‘Corporate Debtor’ is a Real Estate Company involved in construction of Housing and Commercial Units and the land on which the construction is to be completed belongs to GMADA. As the nature of the activity of the ‘Corporate Debtor’ is dependent on the land owned by GMADA, the commercial decision taken by the CoC to make a provision in the Resolution Plan with respect to the Statutory Dues owed to GMADA, cannot be faulted with, though GMADA has failed to make the requisite claim, as provided for under the Code, but has been in communication with the RP - We do not appreciate the act of GMADA not having filed their claim, the fact remains that the ‘Real Estate Project’ is being constructed on GMADA land and all approvals, permits and licences involves GMADA, which is a ‘Secured Creditor’. Further, the nature of business and the ground realities were kept in mind by the CoC before taking a commercial decision. In approval of the Resolution Plan, the CoC takes a business decision ‘based on ground realities, by a majority which binds all stakeholders including dissenting Creditors’.

  Keeping in view the peculiar facts of the instant case that the Resolution Plan was approved by the CoC way back in 2019 and the Adjudicating Authority has approved the Plan on 01.06.2021 after a period of two years and the Plan has already been implemented, we do not see it a fit case to set the clock back, specifically keeping in view the ratio of the Hon’ble Supreme Court in the aforenoted Judgements. It is hoped that the IBBI & the Government may take effective steps to make necessary amendments/frame Regulations to protect the class of ‘Financial Creditors’/Homebuyers from imposition of any haircuts, and likewise take essential measures to safeguard the interest of ‘Operational Creditors’ in the ‘Structure of the Resolution Plans’.

  Appeal dismissed.

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• 2022 (12) TMI 1057 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
  

  Seeking replacement of Resolution Professional (RP) - HELD THAT:- There was no consensus in the name of the Resolution Professional and it was open for the Adjudicating Authority to appoint any Resolution Professional. However, there being no consensus between the parties, Memo filed by ‘Indiabulls Housing Finance Ltd.’ could not have been taken notice or Resolution Professional appointed on the basis of said Memo. Out of three Applicants, two Applicants had filed Joint Memo namely- ‘SREI Equipment Finance Ltd.’ and ‘IIRF India Realty XII Ltd.’ recommending the name of Mr. Avil Jerome Menezes. Why the Adjudicating Authority did not choose the name suggested by two Applicants and accepted the name suggested by one Applicant- ‘Indiabulls Housing Finance Ltd.’ has not been dealt with the order.

  When the clear intent of the order dated 28.11.2022, is that unless the Applicants mutually agree on any name of the Resolution Professional, Resolution Professional will be appointed by the Adjudicating Authority, and it was clear that there was no consensus with regard to the name of the Resolution Professional between three Applicants, the Adjudicating Authority ought to have appointed Resolution Professional on its own without referring to or relying to any prayer made by the Applicant- ‘Indiabulls Housing Finance Ltd.’.

  The Adjudicating Authority committed error in appointing Mr. Sapan Mohan Garg as Resolution Professional whose name was submitted by Memo filed by ‘Indiabulls Housing Finance Ltd.’. The order dated 28.11.2022 (in order sheet) insofar as it appoints Mr. Sapan Mohan Garg as Resolution Professional is set aside and the Adjudicating Authority is directed to pass an order appointing any Resolution Professional from the eligible Resolution Professional as it deem fit and proper.

  The Order passed insofar as it appoints Mr. Sapan Mohan Garg as Resolution Professional is set aside - Appeal allowed in part.

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