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Insolvency and Bankruptcy - Case Laws
Showing 1 to 20 of 160 Records
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2022 (6) TMI 1434 - NATIONAL COMPANY LAW TRIBUNAL, KOLKATA
Initiation of legal action or proceedings in respect of any debt against Personal Guarantor during moratorium period - Section 96 of IBC - HELD THAT:- The presence of the term ‘and’ in the section should be read as a conjunctive one, which joins clause 1(a) of the section with clause 1(b) and infers that interim moratorium commences against all the debts (including his personal debt) and the creditors of the debtor are barred from initiating any legal proceedings in respect of any debt. Hence, the interim moratorium restrains any ongoing or fresh legal action or proceeding in respect of any debt pertaining to the Personal Guarantor.
The application by IFCI was filed on 29 September, 2021, whereas, the application by SBI was filed on 09 July, 2021, which indicates that the interim moratorium against the personal guarantor commenced from 09 July, 2021.
Application allowed.
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2022 (6) TMI 1336 - KERALA HIGH COURT
Maintainability of petition - availability of alternative remedy - paramount contention advanced by the appellants is that the learned single Judge egregiously erred in dismissing the writ petition on the ground of availability of alternative remedy - HELD THAT:- When a provision is interpreted by the Tribunal to arrive at a conclusion in regard to the application filed before it, it cannot be said that the Tribunal has passed the order without jurisdiction. At the most, what the appellants could allege is only the illegality of the order passed, which is a subject matter to be considered by the appellate Tribunal in terms of Section 61 of the Insolvency and Bankruptcy Code, 2016, which is a well defined provision exemplifying the powers of the Tribunal - the appellate Tribunal is empowered to identify as to whether the approved resolution plan is in contravention of the provisions of any law for the time being in force and as to whether there has been any material irregularity in exercising the powers by the resolution professional during the corporate insolvency resolution period.
Yet another aspect that has come to our mind is that from the order of the Tribunal, it is clear that the secured creditor Bank has relinquished its security interest to the litigation estate and received proceeds from the sale of the estates by the liquidator in the manner specified in Section 53 of the Code, 2016. It is an admitted fact that the appellants have offered a guarantee to the loan availed by the Corporate Debtor from the first respondent Bank. It is under the above circumstances the Company Law Tribunal has arrived at its conclusions in its impugned order.
Since the order was passed by the Tribunal after providing an opportunity of hearing to the appellants and other interested persons and taking into account the legal questions raised by the appellants, we are of the clear opinion that the learned single Judge was right in holding that there is no arbitrariness or illegality to be interfered with by exercising the power of judicial review under Article 226 of the Constitution of India.
The appellants could not establish any jurisdictional error or other legal infirmities justifying our interference in an intra court appeal filed under Section 5 of the Kerala High Court Act, 1958 - Appeal dismissed.
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2022 (6) TMI 1332 - NATIONAL COMPANY LAW TRIBUNAL BENGALURU
Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - Time limitation - HELD THAT:- The instant C.P. has been filed on 09.04.2021. The agreement for the Digital Application Development Services executed by the parties was on 05.05.2016 and the Addendum thereof was on 04.06.2018. The Annexure-A2, Statement of Accounts reflecting the amounts in default was consisting of various Invoices issued during the period from 04.02.2019 to 10.02.2020. The various email correspondences and the Annexure-A6 reconciliation statement dated 27.03.2020, where the amount was reconciled between the parties though the Respondent allegedly disputed the total debt amount, saved the limitation period and hence the instant C.P. is held to be filed within the period of limitation.
It is the settled law that the relevant date for determining the existence of a dispute is the date of the demand notice issued under Section 8 of the IBC, 2016. In the instant case, the Petitioner at the first instance, issued Annexure-8 Demand Notice dated 04.09.2020 for which the Respondent/Corporate Debtor given a reply vide Annexure-A9 dated 03.10.2020, wherein categorically mentioned about the various disputes pending between the parties. Admittedly, the Petitioner having realized that Annexure-A8 demand notice dated 04.09.2020 was not in accordance with the facts and transactions occurred between the parties, issued a fresh Annexure-A10 notice dated 05.03.2021 again under Section 8 of the IBC, 2016 - the date of the valid Demand notice issued by the Petitioner was on 05.03.2021 (Annexure-A10) and the Respondent/Corporate Debtor is able to show that there were disputes between the parties vide Annexure-A6 dated 27.03.2020 i.e., even prior to the issuance of the discarded demand notice dated 04.09.2020 and also from the reply dated 03.10.2020 of the Respondent/Corporate Debtor which was much prior to the date of issuance of the demand notice dated 05.03.2021.
The Respondent/Corporate Debtor able to show the existence of the dispute between the parties prior to the relevant date i.e., prior to 05.03.2021 - Petition dismissed.
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2022 (6) TMI 1328 - NATIONAL COMPANY LAW TRIBUNAL NEW DELHI BENCH
Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Personal Guarantor to Corporate Debtor - section 95 of IBC - HELD THAT:- On the conjoint reading of the provisions show that Rule 10 of IBBI (application to Adjudicating Authority for Insolvency Resolution Process or Personal Guarantor to Corporate Debtor) Rules 2019, prescribed the procedure for filing of the application and documents under Chapter-III and Part-III of the application and as per the Rule 10 of the Adjudicating Authority Rules, the provisions of the NCLT Rules are applicable. The provisions referred to Rule 10 are relate to the presentation of the petition or appeal.
On conjoint reading of the provisions shows that neither in Section 94 nor in Section 95, the word filing is referred. Rather in both the Sections 94 & 95, the word submitting an application is mentioned. The debtor or the creditor under Section 94 & 95 respectively may apply either personally or through Resolution Professional for initiating the Insolvency Resolution Process by submitting an application - in terms of the Section 96 of the IBC, 2016, when an application is filed under Section 94 & 95, an interim moratorium shall commence on the date of the application in relation to all the debts and shall cease to an effect on the date of admission of such application.
Petition admitted - moratorium declared.
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2022 (6) TMI 1326 - NATIONAL COMPANY LAW TRIBUNAL BENGALURU
Seeking approval of the Resolution Plan - Section 30(6) and Section 31 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The requirements under section 31(1) of the Code are satisfied in the present case. In para 4 of Form H, the Resolution Professional has certified that the Resolution Plan complies with all the provisions of the Insolvency and Bankruptcy Code, 2016 (Code), the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (CIRP Regulations) and does not contravene any of the provisions of the law for the time being in force.
It is declared that whatever reliefs and concessions entitled by the Resolution Applicant by virtue of the approval of the Plan, as per the application of I&B Code, 2016 and any other applicable Laws are entitled by it - the moratorium order passed by this Adjudicating Authority under Section 14 of the Code on 08.04.2019 in the main C.P. shall cease to have effect.
Application allowed.
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2022 (6) TMI 1324 - NATIONAL COMPANY LAW TRIBUNAL NEW DELHI
Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - disbursal against the consideration for the time value of money - financial debt or not - existence of debt and dispute or not - HELD THAT:- As per sub-section (7) of Section 5 of the Code, only such creditor could be the 'financial creditor' of the corporate debtor to whom a 'financial debt' is owed by the corporate debtor; and, as per sub-section (8) of Section 5 of the Code, the key requirement of a financial debt is 'disbursal against the consideration for the time value of money', which includes the events or modes of disbursement as enumerated in sub-clauses (a) to (i) of Section 5(8) of the code.
The corporate debtor has explained the nature of the transaction and the financial creditor failed to produce the adequate evidence/documents in the form of financial statements or otherwise to prove that it owns financial debt against the corporate debtor. In this summary enquiry, we cannot enter into the correctness of assertion of the applicant to establish the alleged loan amount as financial debt - the evidence as produced by the applicant are not satisfactory to prove the nature of claim as financial debt and cannot be safely relied on.
Since the present application has been filed under Section 7 of the IBC, therefore, it can be said that the applicant claimed that a decree is a financial debt irrespective of its genesis i.e., the substratum on which the decree is adjudicated and became due but when we shall read the definition of claim, debt, financial debt and financial creditor then we find that the decree is not included as an financial Debt unless the claim on which decree is adjudicated is a financial debt, of course definition of Creditor include decree holder but definition of financial debt does not include any decree holder without ascertaining the true nature of the claim basis on which decree is adjudicated.
This Authority is not a forum for recovery of amount and we are clearly of the view that the applicant is utilizing the process of IBC to facilitate recovery whereas the primary focus of IBC is to ensure revival and continuation of the corporate debtor, and to protect it from corporate death.
This Tribunal keeping in mind the entire conspectus of the attendant facts and circumstances of the instant case in a holistic fashion comes to a resultant conclusion that the decree passed by the Hon'ble High Court of Delhi cannot come in the purview of the definition of the financial debt - Application dismissed.
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2022 (6) TMI 1320 - NATIONAL COMPANY LAW TRIBUNAL NEW DELHI
Sanction of Scheme of Arrangement - seeking issuance of directions for dispensation of the meeting of Equity Shareholders of Transferor Company 1, Transferor Company 2 and Transferee Company and directions for dispensation of meeting of Unsecured Creditors of Transferor Company 1, Transferor Company 2 and Transferee Company - HELD THAT:- In view of the settled law, is empowered to dispense with the meeting of shareholders if they have given their consent. Further, in view of Section 230(9) of the Companies Act, 2013, the Tribunal is empowered to dispense with calling of a meeting of creditor or class of creditors where such creditors or class of creditors, having at least ninety percent value, agree and confirm, by way of affidavit, to the scheme of compromise or arrangement.
Various directions with regard to holding, convening and dispensing with various meetings issued - application disposed off.
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2022 (6) TMI 1317 - NATIONAL COMPANY LAW TRIBUNAL AHMEDABAD
Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - enforcement of guarantee by the creditors - Whether the Applicants qualify as a financial creditor in terms of provisions of the Code of the Corporate Debtor? - existence of debt and dispute or not - HELD THAT:- The Corporate Debtor is obliged to reimburse and indemnify the founder promoter (including the Applicants herein) on fulfilment of two conditions, first, enforcement of guarantee and second due to enforcement of such guarantee any loss is suffered by the founder promoters. In an instant matter, Vistra ITCL (India) Ltd. formerly known as IL&FS Trust Company Limited through demand certificate dated 17.03.2018 to the Applicants had demanded to pay an amount of Rs. 9147.88 crore under the Deed of Guarantee/Deed of Personal Guarantee, within 3(three) days. Also, through letter dated 21.03.2018, Vistra ITCL called upon the pledgors of 14,51,04,995 shares (including Applicant in IA 257/2021) to pay an amount of Rs. 9131 crores with interest of Rs. 11.80 crore within 5 days.
Neither the Applicants had denied in its rejoinder nor placed any document to establish that the Applicants had made any payment to any of the lenders against whom guarantee has been given under Deed of Guarantee/Deed of personal Guarantee nor the Applicants has placed on record any document showing sale of equity shares pledged with the lenders. Thus, it is established that the Applicants had not suffered any loss due to enforcement of guarantee by the creditors since 2018.
It is a settled law that liability of surety is co-extensive with that of the principal debtor. In case the creditor enforces its right against the guarantor and the guarantor disburses due amount to the creditor, such disbursement, amounts to repayment of loan on behalf of the principal debtor and the guarantor steps into the shoes of the creditor - if there is no encashment of debt on account of enforcement of guarantee, it cannot be said that there is disbursement of debt to the Corporate Debtor, which is an essential condition to fall under the definition of financial debt. As in the instant case there is neither encashment nor sale of pledged shares. Thus, there is no disbursement of debt by the Applicants to the Corporate Debtor to fall under the category to have created any financial debt - Applicants do not qualify as financial creditors of the Corporate Debtor in terms of provisions of the Code.
The claim of the Applicants do not fall under the definition of financial debt - appeal rejected.
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2022 (6) TMI 1314 - NATIONAL COMPANY LAW TRIBUNAL CHENNAI BENCH
Seeking directions on the Respondent to resolve the claim of the Applicant - contention raised by the Learned Counsel for the Applicant as per the latest list of creditors as on 20.01.2020, that the claim submitted by the Applicant herein was shown as 'under verification' and hence no amounts were paid to the Applicant under the Resolution Plan - HELD THAT:- In the present case, it is seen that the Resolution Plan in respect of the Corporate Debtor was approved by this Tribunal on 20.01.2020. The present Application is filed before this Tribunal on 29.07.2021. Further, it is also seen a contingency fund to the tune of Rs. 7 Crore was kept in the Resolution Plan for a period of 6 months from the date of approval of the Resolution Plan. The said 6 months expired on 20.07.2020 and admittedly the present Application is filed before this Tribunal only on 29.07.2021.
The relief as sought by the Applicant cannot be granted, in terms of the Judgment rendered by the Hon'ble Supreme Court in the matter of Ghanashyam Mishi a and sons Private Limited Vs. Edelweiss Asset Reconstruction Company Limited & Ors. [2021 (4) TMI 613 - SUPREME COURT] where it was held that once a resolution plan is duly approved by the Adjudicating Authority under sub-section (1) of Section 31, the claims as provided in the resolution plan shall stand frozen and will be binding on the Corporate Debtor and its employees, members, creditors, including the Central Government, any State Government or any local authority, guarantors and other stakeholders. On the date of approval of resolution plan by the Adjudicating Authority, all such claims, which are not a part of resolution plan, shall stand extinguished and no person will be entitled to initiate or continue any proceedings in respect to a claim, which is not part of the resolution plan.
Application dismissed.
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2022 (6) TMI 1304 - NATIONAL COMPANY LAW TRIBUNAL CHENNAI
Seeking condonation of delay in filing claim amount - seeking direction to Respondent to include the Applicant as stakeholder in the finalized list of creditors and pay off the claim amount - direction to Respondents for payment of costs - HELD THAT:- It is observed that the Applicant was required to file the form as per Regulation 20 of the IBBI (Liquidation Process) Regulations, 2016 before the Liquidator in Form "G" but the Applicant chose to file its claim in Form "F" under Regulation 9A of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016). This form is required to be filed during CIRP. Further the Form was belatedly submitted before the Liquidator who in turn informed the Applicant of shortcomings.
It can be seen from the proceedings of this Tribunal vide order dated 07.03.2022, wherein it was submitted by the Applicant/RPFC that they seek condonation of delay of 268 days in making claim to the liquidator. But when this Tribunal has calculated the delays from the liquidation commencement date and till the date of submission of impugned form before the Liquidator i.e. 06.07.2021, i.e. the delay comes to 672 days and not 268 days - Hence extraordinary delay of 672 days in submission of claim by applicant, is devoid of merits. Further in interest of Justice also we cannot condone the delay sought for. Further, if such extraordinary delay is condone, it shall defeat the very purpose of the IBC enactment, which is a time bound process.
The Hon'ble Supreme Court in GAURAV HARGOVINDBHAI DAVE VERSUS ASSET RECONSTRUCTION COMPANY (INDIA) LTD. AND ANR. [2019 (9) TMI 1019 - SUPREME COURT], in relation to the aspect of limitation has restated the well-established and well settled principle that "there is no equity about limitation", this Application/Appeal need not be entertained.
Since the application is incomplete, the claim form which has been filed by the applicant before the Liquidator is not in accordance with the form prescribed under IBBI (Liquidation Process) Regulations, 2016, such claim is non-est - Application dismissed.
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2022 (6) TMI 1293 - NATIONAL COMPANY LAW TRIBUNAL CHENNAI
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and default or not - HELD THAT:- After the settlement was arrived, the Respondent/Corporate Debtor however failed to pay the amount. Despite the settlement arrived at between the parties, the Respondent/Corporate Debtor filed an application under Section 34 of Arbitration & Conciliation Act, 1996 before the Hon'ble High Court of Madras on 05.07.2021. The petition is not numbered till date but it is in the SR stage for almost one year. Since the settlement was not honoured by the Respondent/Corporate Debtor, the Petitioner/Operational Creditor was once again forced to file this petition on 15.12.2021. Prima facie, the debt and default has been established by the Petitioner/Operational Creditor by referring to the various marine goods supply bills which were duly acknowledged by the Respondent/Corporate Debtor and also by the award wherein the Respondent/Corporate Debtor clearly admitted the receipt of goods for export. It is another matter that the Respondent/Corporate Debtor was unable to make the payment as undertaken.
The question is that in subsequent event viz., filing of the counter claim, both parties entered into an arbitration award and that award crystallized the amount due and payable under the supply of goods and Memorandum of Compromise settlement has been arrived by the Respondent/Corporate Debtor in favour of the Operational Creditor herein. It is the nature of goods sold and delivered for which the amount due and payable has not been paid by the Respondent/Corporate Debtor, despite several proceedings taken by the Petitioner/Operational Creditor in different forums. Therefore, it is a clear case of inability to pay the debt by the Respondent/Corporate Debtor.
The Petition, as filed by the Operational Creditor in a clear case of debt and default coupled with inability to pay justifies initiation of proceedings. Hence, the petition is required to be admitted under Section 9(5) of the IBC, 2016.
Petition admitted - moratorium declared.
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2022 (6) TMI 1292 - NATIONAL COMPANY LAW TRIBUNAL, CHENNAI
Attachment of Company's properties - benami property - HELD THAT:- The Liquidator has to take appropriate steps before the concerned forum to get the order for removing attachment. It is for the Liquidator to get the property either as an asset belongs to the liquidation estate or it is a benami property - the Liquidator is given liberty and right to proceed with for removing attachment and get the property identified and add it to the liquidation estate, if applicable.
Application closed.
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2022 (6) TMI 1289 - NATIONAL COMPANY LAW TRIBUNAL BENGALURU
Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - composite commercial transactions - existence of debt and dispute or not - contractual default or not - time limitation - HELD THAT:- As per the enunciation of law by the Hon'ble Apex Court in M/s. Innoventive Industries Ltd. vs. ICICI Bank & Anr. [2017 (9) TMI 58 - SUPREME COURT], in an Application under Section 7 of the IBC, 2016, what is required to be seen by this Adjudicating Authority, is whether the application filed within the period of limitation and whether the Petitioner/Financial Creditor proved the debt and default thereon.
It is the settled principle of law that the amount given under an Inter Corporate Deposit is a financial debt. The Learned Counsel appearing for the Respondent/Corporate Debtor while not disputing the said principle, however, mainly contended that the subject Inter Corporate Deposit was given by the Petitioner/Financial Creditor to the Respondent/Corporate Debtor as a part of the investment made and hence it cannot be treated as a financial debt and the C.P. should be dismissed - There are force in the submissions made by the Learned Senior Counsel appearing for the Petitioner/Financial Creditor. The Memorandum of Understanding dated 07.01.2012, on which the Respondent placed reliance was admittedly executed between the Petitioner and a separate legal entity known as M/s. Lepakshi Knowledge Hub Private Limited. Further, the amount received by the Respondent/Corporate Debtor under the subject Inter Corporate Deposit dated 19.03.2012 was not for purchasing of any shares by the Petitioner in the Respondent Company. On the other hand, it was for meeting certain expenses by the Respondent/Corporate Debtor. Hence, the contention of the Petitioner in this regard is rejected.
The Petitioner/Financial Creditor is able to prove the debt and default by placing reliance on various documents enclosed to the instant company petition.
Time Limitation - HELD THAT:- The instant C.P. was filed on 13.10.2021. The Corporate Debtor/Respondent has acknowledged the receipt of Rs. 5,00,00,000/- from the Financial Creditors/Petitioners in its Balance Sheets from the Financial Years 2011-2012 to 2018-2019. Hence the C.P. is well within the period of limitation.
The application filed in the prescribed Form No. 1 is found to be complete - Application admitted - moratorium declared.
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2022 (6) TMI 1288 - NATIONAL COMPANY LAW TRIBUNAL BENGALURU
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 - HELD THAT:- The Memorandum of Understanding dated 07.01.2012, on which the Respondent placed reliance was admittedly executed between the Petitioner and a separate legal entity known as M/s. Lepakshi Knowledge Hub Private Limited. Further, the amount received by the Respondent/Corporate Debtor under the subject Inter Corporate Deposit dated 19.03.2012 was not for purchasing of any shares by the Petitioner in the Respondent Company - The Petitioner/Financial Creditor is able to prove the debt and default by placing reliance on various documents enclosed to the instant company petition.
Whether the present application is filed within limitation? - HELD THAT:- As the Corporate Debtor admittedly not repaid the amount received under Inter Corporate Deposit within the specified period, the Financial Creditor/Petitioner recalled the Inter Corporate Deposit amount along with 18% interest from the Corporate Debtor/Respondent vide recall letter dated 19.09.2020. The instant C.P. was filed on 13.10.2021. The Corporate Debtor/Respondent has acknowledged the receipt of Rs. 5,00,00,000/- (Rupees Five Crores only) from the Financial Creditors/Petitioners in its Balance Sheets from the Financial Years 2011-2012 to 2018-2019. Hence the C.P. is well within the period of limitation.
Since the debt and default against the Principal Borrower was already held to be proved and since the execution of the Corporate Guarantee by the Corporate Debtor and the invocation thereof was also proved, the instant C.P. is also liable to be admitted.
Petition admitted - moratorium declared.
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2022 (6) TMI 1222 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , CHENNAI
Violation of principles of natural justice - Non-speaking order - grievance of the Appellant is that the Impugned order suffers from serious infirmity in the eye of law because of the fact that the said order is bereft and devoid of reasons, for want of material particulars in explaining necessary qualitative and quantitative reasons, for arriving at the just conclusion - HELD THAT:- Considering the fact that the Impugned Order suffers from infirmity in the eye of law, therefore, it cannot stand a moment scrutiny in law, especially, for want of qualitative and quantitative reasons being ascribed thereto in the said Order and especially the said order is a cryptic and unreasoned one, which necessitates an inevitable conclusion to be arrived at, by this Tribunal, that the same is not valid in law.
This Tribunal is inclined to interfere to the said Impugned order for substantial cause of justice. The Impugned Order dated 24.05.2022 in IA/320/CHE/2021 in CP/1156/IB/2018 passed by the Adjudicating Authority’ (National Company Law Tribunal, Division Bench-1, Chennai) in CP/1156/IB/2018 is hereby set aside - the matter is remitted back to the Adjudicating Authority (National Company Law Tribunal, Division Bench-1, Chennai) and the Adjudicating Authority (National Company Law Tribunal, Division Bench-1, Chennai) is directed to take up IA/320/CHE/2021 in CP/1156/IB/2018 for Hearing de novo and to dispose of the same, by passing a reasoned ‘Speaking Order’ on merits, of course, after providing adequate opportunities to both the parties, in accordance with law.
Appeal disposed off.
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2022 (6) TMI 1221 - NATIONAL COMPANY LAW 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 - HELD THAT:- It can be seen from the records of the proceedings placed, that since the Corporate Debtor's account has been classified as fraudulent transaction by the banker and the Corporate Debtor is unable to infuse more funds and submit better proposal for OTS. However, CIRP to be initiated on the Corporate Debtor and it is proved that there is a debt and default on the part of the Corporate Debtor.
In view of the 'financial debt' which is proved by the Financial Creditor and the 'default' being committed on the part of the Corporate Debtor, 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 - Application admitted - moratorium declared.
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2022 (6) TMI 1220 - NATIONAL COMPANY LAW TRIBUNAL , MUMBAI 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:- Upon perusal of the records and documents annexed with the Petition, it is observed that the amount was disbursed to the Corporate Debtor and the default subsists. Thus, the amount is legally due and payable to the Corporate Debtor.
The application made by the Financial Creditor is complete in all respects as required by law. It clearly shows that the Corporate Debtor is in default of a debt due and payable, and the default is in excess of minimum amount stipulated under section 4(1) of the IBC. Therefore, the debt and default stands established and there is no reason to deny the admission of the Petition. In view of this, this Adjudicating Authority admits this Petition and orders initiation of CIRP against the Corporate Debtor - Petition admitted - moratorium declared.
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2022 (6) TMI 1219 - NATIONAL COMPANY LAW TRIBUNAL , MUMBAI BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - exisence of debt and dispute or not - HELD THAT:- It is evident from the documents on record that the advance was availed from the Financial Creditor by the Corporate Debtor and that amount was duly disbursed to the Corporate Debtor from time to time. The balance confirmation statement which has also been signed by the Corporate Debtor evidences the fact that the amount was disbursed and the same is an acknowlegement of liability. In addition to the balance confirmation statement the liability of the Corporate Debtor is clearly reflected in the balance sheet of the Corporate Debtor.
It is abundantly clear that the Corporate Debtor owes a financial debt to the Financial Creditor. There is Balance confirmation by the Corporate Debtor of the dues payable to the Financial Creditor. On account of its acknowlegement of debt the Corporate Debtor has confirmed the amount as stipulated in the confirmation of accounts dated 15.04.2017, due and payable to the Financial Creditor. The Financial Creditor submits that in view of the Corporate Debtor’s loan having become due and payable on demand and its failure and inability to pay the same, the Petition to be admitted - this Bench is of the considered opinion that there is no dispute regarding the fact that Corporate Debtor owes money to the Financial Creditor.
The application made by the Financial Creditor is complete in all respects as required by law. It clearly shows that the Corporate Debtor is in default of a debt due and payable, and the default is in excess of minimum amount stipulated under section 4(1) of the IBC. Therefore, the debt and default stands established and there is no reason to deny the admission of the Petition. In view of this, this Adjudicating Authority admits this Petition and orders initiation of CIRP against the Corporate Debtor.
Petition admitted - moratorium declared.
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2022 (6) TMI 1218 - NATIONAL COMPANY LAW TRIBUNAL , CHANDIGARH BENCH
Seeking dissolution of the company - Section 59 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- A bare perusal of the material available on record shows that the Board of Directors of the Company has taken a conscious decision for closing down the company, because the company has no significant business operations from last two years. Thus, the Board of Directors of the company have unanimously proposed to liquidate the company by invoking the provisions of voluntary liquidation under Section 59 of the Code - It has been mentioned in the petition that the liquidator has not received any claims, therefore, no prejudice and loss will be caused to anyone, if the company is dissolved. In support of the same, the company has duly passed the requisite Special Resolution in its Extra Ordinary General Meeting on 06.08.2020 by confirming the decision of its Board of Directors and proposing for its Voluntary Liquidation.
From the perusal of the record of the case, it is seen that the Liquidator, after his appointment has duly performed his duties and completed necessary formalities to complete the liquidation process of the applicant company, which has been averred in the present petition and, thus, the liquidator has prayed for an order from this Tribunal to dissolve the applicant company.
Since there is no objection received from any angle opposing the proposed voluntary liquidation/dissolution of the company either from the side of the shareholders or from creditors, nor any adverse comment have been received from the public at large against such liquidation/dissolution, despite there being a public announcement by the liquidator and also updation of the same in the website of the Insolvency and Bankruptcy Board of India (IBBI). It is also evident from the record that the proposed liquidation was duly communicated to the Registrar of Companies, NCT of Delhi & Haryana as per Form MGT-14 and Form GNL-2 and the same is also reported to have been approved.
Apart, as per record of the present case, it is seen that the company is not found involved in such kind of business activities, which are detrimental to the interest of public at large. Further, it is not the case that the proposed liquidation may affect adversely to its shareholders/members or is contrary to the provisions of law - the present application deserves to be allowed for the proposed Liquidation/Dissolution of the Corporate Person.
This Adjudicating Authority in exercise of power conferred to it under Section 59 (8) of the Insolvency and Bankruptcy Code, 2016, orders that the Corporate Person (Applicant Company) SAIF Advisors Private Limited shall stand dissolved with effect from 27.06.2022 - application allowed.
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2022 (6) TMI 1217 - NATIONAL COMPANY LAW TRIBUNAL , KOCHI 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:- As per the direction of this Tribunal, the learned PCS for the applicant filed the record of default of NeSL website, from which it is clear that the Corporate Debtor has committed default in repayment of its credit facilities availed from the Financial Creditor by way of various credit facilities sanctioned, granted and disbursed by the Applicant. The record produced by the applicant received from the Information Utility shows as “Deemed to be Authenticated”. The status of authentication as “Deemed to be Authenticated” is prima facie evidence for smooth admission under Section 7 of the IBC.
It is relevant to note that Hon’ble Supreme Court of India in the case of M/S. INNOVENTIVE INDUSTRIES LTD. VERSUS ICICI BANK & ANR., [2017 (9) TMI 58 - SUPREME COURT], has laid down the guiding principles to admit or reject an application filed under Section 7 of the IBC.
To admit an application filed under Section 7 of IBC, the Adjudicating Authority is to be satisfied that a default has occurred; that the Corporate Debtor is entitled to point out that default has not occurred in the sense that the "debt", which may also include a disputed claim, is not due. A debt may not be due if it is not payable in law or in fact. The moment the Adjudicating Authority is satisfied that a default has occurred, the Application must be admitted unless it is incomplete.
The application made by the Financial Creditor is complete in all respects as required by law. It clearly shows that the Corporate Debtor is in default of a debt due and payable, and the default is in excess of the minimum amount stipulated under Section 4(1) of the IBC. Therefore, the debt and default stand established and there is no reason to deny the admission of the Petition.
Petition admitted - moratorium declared.
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