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Insolvency and Bankruptcy - Case Laws
Showing 101 to 120 of 160 Records
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2022 (6) TMI 494 - NATIONAL COMPANY LAW TRIBUNAL , AHMEDABAD
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:- All the debit notes are entered in the ledger account based on which the Goods & Service Department had issued two different show cause notices to the corporate debtor demanding differential input-tax credits availed on the basis of the invoices of the applicant. Further, the applicant had sent incorrect accounts by email dated 30.11.2018, 06.12.2018 and 13.12.2028 asking the respondent to confirm the same. The corporate debtor had categorically denied to accept the said accounts and in reply to various emails of the applicant, corporate debtor had raised dispute.
It is clear that a dispute was in existence prior to issuance of the statutory demand notice under Section 8 of the Code. There is sufficient evidence to prove the pre-existence of dispute.
Hon’ble Supreme Court held in the matter of Mobilox Innovative Private Limited vz. Kirusa Software Private Limited [2017 (9) TMI 1270 - SUPREME COURT] that in case of genuine dispute raised by the corporate debtor, the application cannot be admitted
The instant application cannot be considered for admission and needs to be rejected.
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2022 (6) TMI 493 - NATIONAL COMPANY LAW TRIBUNAL , KOLKATA BENCH
CIRP - Application by the RP to protect the assets of Corporate Debtor - Separate Identity of Corporate Debtor - imposing vicarious liability of respondents - piercing of corporate veil by disregarding the false description of corporate debtor created by the holding company - validity of transactions including illegal inter-se sale of shares of the corporate debtor among respondents by the holding company - preferential, undervalued, fraudulent transactions or not - HELD THAT:- There is no illegal or fraudulent transaction done by the said respondents. When according to the applicant himself there was no asset of the corporate debtor, and the company had gone into losses and was left with no debtors, the applicant should have performed his duties assigned to him in the Code instead of flogging a dead horse. When the applicant had sought Police assistance, this Adjudicating authority had issued directions, but in spite of that the RP was not diligent enough to make use of it.
Application dismissed.
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2022 (6) TMI 492 - 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 - Penalty/liquidated damages levied by Corporate Debtor or not - HELD THAT:- Considering the documents on record admittedly the respondent has never raise any dispute over quantum of claim or delay of applicant. The corporate debtor has failed to place any document on record to show that said imposition of penalty was ever communicated to the applicant before issuance of demand notice. No debit note in this regard was ever issued by respondent. The communications relied upon by respondent are related to period 2016-17, only in respect of delay in completion of project. No penalty or liquidated damages were levied by corporate debtor - Admittedly, in terms of agreement the corporate debtor is not entitle to impose any penalty to the applicant. The respondent even reconciled the accounts of applicant and failed to raise any dispute over claim of applicant during reconciliation.
It is not the case of respondent that work order was never completed by applicant. The respondent has already made payments to applicant which shows that there is no defect in performance of contract other than delay in completion, that too a penalty of Rs. 14 lakhs was already levied by SCEI on applicant. This leaves no doubt that the default has occurred for the payment of the operational debt to the applicant and the so called dispute raised by the corporate debtor is merely a moonshine dispute as laid down by Hon'ble Supreme Court in the matter of "Mobilox Innovative Private Limited vs. Kirusa Software Private Limited. [2017 (9) TMI 1270 - SUPREME COURT]
Thus, it can be concluded that the applicant has established its claim which is due and payable by the corporate debtor and the corporate debtor has failed to prove existence of any preexisting dispute in respect of amount claimed by applicant - application admitted - moratorium declared.
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2022 (6) TMI 491 - NATIONAL COMPANY LAW TRIBUNAL , BENGALURU 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:- A conjoint reading of the definition of the terms 'claim' (Section 3(6)); 'debt' (Section 3(11)); 'default' (Section 3(12)) and 'operational debt' (Section 5(21)) make it clear that there is an unpaid operational debt in the instant case and the claim is maintainable before this Tribunal as it arises from a contract in relation to provision of goods though it did not materialize in actual supply of goods. The Corporate Debtor is well aware of its liability to pay the same and its failure to do so is a 'default' in terms of Section 3(12) of the Code.
The Petitioner issued Annexure - 11(F) Quotation dated 12.09.2018 to the Respondent-Corporate Debtor where under it was mentioned that out of the total cost of the products, the total advance payment required was Rs. 2,28,62,374.63/-. It was further mentioned therein under the payment terms, 'sixty days from the date of Invoice'. However, the Respondent-Corporate Debtor issued the Annexure - 11(G) Purchase Order dated 25.09.2018 for a total amount of Rs. 9,52,83,286/- out of which the NRE Costs are Rs. 6,21,055/- and under the payment term 'sixty days from the date of Invoice'. It is not in dispute that since the products were not supplied to the Respondent-Corporate Debtor, no Invoice was issued by the Petitioner and hence the payment term of 60 days from the date of Invoice has no relevance.
The Petitioner-Operational Creditor failed to prove the debt and default on the part of the Respondent-Corporate Debtor - Petition dismissed.
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2022 (6) TMI 481 - NATIONAL COMPANY LAW TRIBUNAL , CHANDIGARH 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 - Service of demand notice - HELD THAT:- The petitioner through has placed a tracking report, whereunder it was stated that the speed post was delivered to the corporate debtor Annexure (A-6).
Whether the operational debt was disputed by the corporate debtor? - HELD THAT:- It is to be noted that none appeared on behalf of corporate debtor despite repeated service and has been set ex parte vide order dated 20.04.2022. Moreover, petitioner has appended affidavit u/s. 9(3)(b) stating that corporate debtor has not issued any notice or raised any dispute regarding the debt for which the present petition has been filed by the operational creditor.
Whether this application is filed within limitation? - HELD THAT:- This application was filed on 18.11.2019 vide Diary No. 6401. Whereas the date of default is 01.07.2019, therefore, this Adjudicating Authority finds that this application has been filed within limitation.
The application filed in the Form 5 and the same is found to be complete. There is a total unpaid operational debt (in default) of Rs. 9,50,000/- and interest amount of Rs. 17,112.31/-. The operational creditor has been appointed as CEO of the Corporate Debtor. Copy of appointment letter (Annexure A-3) and salary slip issued by the Corporate Debtor for the month of May 2019. Accordingly, the petitioner proved the debt and the default, which is more than Rupees one lakh (prior to the amendment in threshold limit of one crore vide notification No. S.O.1205(E) dated 24.03.2020) by the respondent-corporate debtor.
The material on record clearly goes to show that the respondent committed default in payment of the claimed operational debt even after demand made by the petitioner. In view of the satisfaction of the conditions provided for in Section 9(5)(i) of the Code, the petition for initiation of the CIR Process in the case of the Corporate Debtor is admitted - application admitted - moratorium declared.
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2022 (6) TMI 480 - NATIONAL COMPANY LAW TRIBUNAL , CHANDIGARH 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 - whether the present application is filed within limitation? - HELD THAT:- It can be seen from the records that the date of default is 20.08.2021 and the present petition is filed vide Diary No. 01139 dated 22.10.2021. Therefore, the present petition is filed within limitation.
Whether there is default in payment or not? - HELD THAT:- It is observed from the record that in the present case, the occurrence of default is evidenced by the copy of the acknowledgement by the corporate debtor and the account statement of the Petitioner/Applicant and the same are attached as Annexure-6 and Annexure-A-5 & A-10 respectively of the petition. The respondent-corporate debtor has also filed a reply wherein it has been admitted that there is default in respect of financial debt and amount mentioned in the petition is due towards the petitioner and shown its incapacity to pay the liability. The application filed in the prescribed Form No.1 is found to be complete.
The present petition being complete and having established the default in payment of the Financial Debt for the default amount being above threshold limit, the petition is admitted in terms of Section 7(5) of the IBC and accordingly, moratorium is declared in terms of Section 14 of the Code - Petition admitted - moratorium declared.
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2022 (6) TMI 388 - SUPREME COURT
Validity of Ex-parte order of NCLAT - appellant having been deprived of a reasonable opportunity of hearing - Service of notice - 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:- As per observations of the Appellate Tribunal in opening paragraph of the impugned order, the registry was directed to serve notice on the parties and in response thereof, respondent of the appeal appeared but nobody appeared on behalf of the appellant. Fresh notice was issued on which, the Appellate Tribunal received postal endorsement to the effect that the appellant had ‘left’ the given address. Thus, notice could not be delivered to the appellant.
It appears just and proper that while setting aside the impugned order dated 09.07.2018, the matter be again restored to the file of the Appellate Tribunal for decision afresh and on merits.
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2022 (6) TMI 387 - SUPREME COURT
Rejection of modification/amendment of the resolution plan - Appellate Tribunal took note of the grievance of the appellant that its resolution plan came to be known to everyone and hence, no opportunity should have been given to the others to modify - HELD THAT:- The Appellate Tribunal found no substance in those submissions while taking the view that the Adjudicating Authority had passed the impugned order so as to maintain the level playing field. The Appellate Tribunal also took note of the fact that the resolution plans had already been considered by CoC on 21.12.2021.
On a perusal of the order dated 13.12.2021, this much is clear that certain key features/stipulations of the resolution plan were sought to be amended by the appellant. Whether it was done in response to the requirement of the CoC or otherwise, the fact of the matter remains that there was going to be modification of the relevant terms of the resolution plan of the appellant. When that was being permitted at the request of the appellant himself, we cannot find fault in the Adjudicating Authority having passed an order so as to balance the position of the respective parties and to provide level playing field by granting corresponding permission to the other resolution applicant to place its modification for consideration of CoC.
The view taken by the Adjudicating Authority as also by the Appellate Tribunal appears to be reasonable and sound, calling for no interference.
Appeal dismissed.
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2022 (6) TMI 386 - 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:- The Financial Creditor had sanctioned credit facilities in the form of a Rupee Term Loan of Rs.10,00,00,000/- and a Working Capital Facility not exceeding of Rs.45,00,00,000- in favour of the Corporate Debtor - The Corporate Debtor has neither disputed the disbursement of credit facilities by the Financial Creditor nor denied the existence of financial debt and default by the Corporate Debtor.
The Corporate Debtor has time and again acknowledged its liability as seen from the records. It is observed that the Corporate Debtor issued a letter to the Financial Creditor wherein the Corporate Debtor has admitted an amount of Rs.27,76,67,442.58/- as due and payable by the Corporate Debtor - the Financial Creditor has time and again extended the Credit Facility to which the Corporate Debtor duly acknowledged by admitting the debt as due and payable to the Financial Creditor by the Corporate Debtor.
On perusal of the documents submitted by the Applicant, it is clear that financial debt amounting to more than Rs.1,00,00,000/- (Rupees One Crore Only) is due and payable by the Corporate Debtor to the Financial Creditor - The application is complete and has been filed under the proper form. The debt amount is more than Rupees One Crore and default of the Corporate Debtor has been established and the application deserves to be admitted.
Application admitted - moratorium declared.
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2022 (6) TMI 385 - 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:- The letters which were issued by the Corporate Debtor to the Financial Creditor clearly highlight the existence of Debt due and Corporate Debtor’s willingness to settle the same - It is clear from the records that the Corporate Debtor has time and again acknowledged the debt which was due and payable to the Financial Creditor. The corporate Debtor has admitted his liability.
On perusal of the documents submitted by the Applicant, it is clear that financial debt amounting to more than Rs.1,00,00,000/- (Rupees One Crore Only) is due and payable by the Corporate Debtor to the Applicant. There is default by the Corporate Debtor in payment of debt amount. Therefore, we find that it is a fit case for initiation of CIRP against the Corporate Debtor, and that the petition is filed within the limitation period. This Tribunal has jurisdiction to adjudicate the Company Petition filed by the Financial Creditor and that there is a Debt due & payable by the Corporate Debtor. Therefore, the Application filed by the Financial Creditor is liable to be admitted.
Application admitted - moratorium declared.
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2022 (6) TMI 384 - NATIONAL COMPANY LAW TRIBUNAL , CHANDIGARH 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 - Service of demand notice - time limitation - whether the demand notice in Form 3 dated 29.08.2019 was properly served? - HELD THAT:- The petitioner has placed a tracking report, whereunder it was stated that the speed post was delivered to the corporate debtor.
Whether the operational debt was disputed by the corporate debtor? - HELD THAT:- It is to be noted that respondentcorporate debtor in its reply has admitted that its liability and inability to pay the debt. Moreover, petitioner has appended affidavit u/s 9(3)(b) stating that corporate debtor has not issued any notice or raised any dispute regarding the debt for which the present petition has been filed by the operational creditor.
Whether this application is filed within limitation? - HELD THAT:- This application was filed on 19.09.2019 vide Diary No.4927. Whereas the date of default is 07.03.2017 i.e. date of written acknowledgement of the debt, therefore, this Adjudicating Authority finds that this application has been filed within limitation. Apart liability of debt is admitted by respondent-corporate debtor.
There is a total unpaid operational debt Rs.2,37,8812/-(Rs. 882128/- plus delayed payment interest @ 24 % p.a. amounting to Rs.1,44,6684/- and legal fee of Rs.50,000/-). The operational creditor has provided Labour Job Forging to the corporate debtor and raised invoices attached as Annexure-4. Accordingly, the petitioner proved the debt and the default, which is more than Rupees one lakh (prior to the amendment in threshold limit of one crore vide notification No. S.O.1205(E) dated 24.03.2020) by the respondent-corporate debtor - It is noted that the corporate debtor has failed to make payment of the aforesaid amount due as mentioned in the statutory notice till date. Thus, the conditions under Section 9 of the Code stand satisfied. It is evident that from the facts that the liability of the corporate debtor is undisputed. Accordingly, the petitioner proved the debt and the default, which is above threshold limit.
In the present petition all the aforesaid requirements have been satisfied. It is seen that the petition preferred by the petitioner is complete in all respects. The material on record clearly goes to show that the respondent committed default in payment of the claimed operational debt even after demand made by the petitioner.
Application admitted - moratorium declared.
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2022 (6) TMI 383 - NATIONAL COMPANY LAW TRIBUNAL , CHANDIGARH BENCH
Acceptance of the claim of Respondent - Whether the acceptance of claims of Respondent Nos.2 to 5 by the Liquidator is not in accordance with the provisions of the Code and the Rules made there in? - whether the Liquidator should wait for the final adjudication of the claims of the Respondents pending before the learned DRT and other Judicial Authorities, before admitting the claims and disbursing the amounts?
HELD THAT:- It is an undisputed proposition that the Liquidator is mandated to discharge his duties strictly as per the provisions quoted above while verifying/admitting the claims. On a careful perusal of these provisions, it is clear that the Liquidator is required to verify the claims with reference to the date of liquidation and if there is no crystallization of a debt through a decree on that date, the Code does not direct the Liquidator to wait for the same - As regards the admission of the claims, on going through the voluminous evidence including correspondences etc. produced in the course of proceedings and also the grounds on which the claims have been admitted in the cases of Respondent Nos.2 to 5 by the Liquidator with reference to. Prima facie, the Liquidator has verified the claims on the basis of Form-D submitted by the Financial Creditors along with documents, records and financial statements filed with the same. It is also noted that the Liquidator has accepted only partial amounts of the total claims made by the financial creditors and have sought legal opinion upon some of the issues before reaching a conclusion.
No particular procedural mistake on the part of the Liquidator has been pointed out by the applicant during the current proceedings. It may be noted that word adjudication has been used by the Liquidator in more than one place while verifying the claim of the respondents but it seems to be a typographical or mistake through inadvertence, and the same is ignored.
The allegation of the applicant that the Liquidator has “adjudicated” the claims filed by the respondent-financial creditors and has wrongly accepted their claims is misconceived - It is trite law that timelines are sacrosanct in a liquidation proceedings as is apparent from the Regulation 47 laying down Model TimeLine for liquidation process.
The general principle of construction in a circumstance where two special Acts are in conflict with each other is that, the Act made later should prevail vide the maxim “leges posteriores priores abrogant”. The DRT was constituted under Recovery of Debts Due to Banks & Financial Institutions Act, 1993, much prior to the I&B Code, 2016. In view of Section 238 of the I&B Code, 2016 steps taken under the Code by the authority would have precedence over other authorities in parallel proceedings. Thus, the provisions of I&B Code, 2016 should prevail in case of any conflict.
This Authority, therefore, finds no reason to keep the liquidation proceeding in abeyance, and thus, rejects the Applicant’s prayer that the Liquidator should await the final adjudication of the claims before the Hon’ble DRT before accepting the claims of the Respondents and subsequently disbursal of the amounts - Application dismissed.
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2022 (6) TMI 363 - NATIONAL COMPANY LAW TRIBUNAL AHMEDABAD
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 contention of the Corporate Debtor that the Financial Creditor is not entitled to file this present application against the Corporate Debtor as the loan/corporate facilities were sanctioned by the Financial Creditor with the consortium of SBI which is only entitled to file the proceeding before this Adjudicating Authority. Further, the contention of the Corporate Debtor that the S.B.I has already taken the possession the properties of the Corporate Debtor more than the sanctioned amount by both the Banks (Financial Creditor and S.B.I) of Rs. 93.61 Crores. The aforesaid both the contentions of the Corporate Debtor is baseless though the S.B.I is a lead Bank under the consortium of sanctioned credit facilities but Financial Creditor has independently sanctioned the loan/credit facilities to the Corporate Debtor and is entitled to initiate the proceeding under Section 7(1) of the IBC, 2016 and it is an admitted fact that the claim amount is still pending to be paid by the Corporate Debtor.
It is also not a disputed fact that the loan was disbursed to the Corporate Debtor by the Financial Creditor. Though, S.B.I. has taken possession of the properties of the Corporate Debtor under the SARFAESI Act, 2002 but if any proceeding initiated either by the Financial Creditor or by the lead Bank i.e., S.B.I. under SARFAESI Act, 2002 does not bar to initiate the proceeding under 7 of the IBC, 2016 - It is also noted that the present petition is duly supported by the affidavit of the authorized person of the Financial Creditor and all the requisite information for initiating the CIRP against the Corporate Debtor under Section 7 of IBC, 2016 has been disclosed by the Financial Creditor. Hence, the contention of the Corporate Debtor that the present petition is defective is not valid.
It is observed that the credit facilities were sanctioned to the Corporate Debtor by the Financial Creditor and due to nonpayment of the outstanding amount, the accounts of the Corporate Debtor was classified as N.P.A. on 11.12.2019 and thereafter recall notice dated 17.06.2020 of Rs. 17,46,77,948/- was issued to the Corporate Debtor as well as guarantors of the Corporate Debtor but the Corporate Debtor failed to pay the outstanding amount/regularised the N.P.A. account. Moreover, the Financial Creditor has also issued the notice under 13(2) of the SARFAESI Act, 2002 for the payment of the aforesaid outstanding amount on 31.07.2020 but the Corporate Debtor failed to pay the outstanding amount within the stipulated time under the aforesaid notice.
There is a debt and default has been committed by the Corporate Debtor - This application is otherwise complete and defect-free and meets the threshold limit as prescribed under Section 4 of the IBC, 2016. The present petition is well within the limitation as the present petition was filed on 09.03.2021 and the date of default is stated to be 09.12.2019.
Application admitted - moratorium declared.
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2022 (6) TMI 362 - NATIONAL COMPANY LAW TRIBUNAL , AMARAVATI BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - Personal Guarantor of the Corporate Debtor - existence of debt and dispute or not - HELD THAT:- It is evident from a reading of the Section along with the Rule, that what the Creditor has to serve is the copy of the application "made under sub-section (1)" to the Debtor, Reading Rule 7(2) with Rule 3 shows that the application filed under sub-section (1) of Section 95 shall be submitted in Form -C and the Creditor will serve forthwith "a copy of the application" to the Guarantor and the Corporate Debtor for whom the Guarantor is a Personal Guarantor. Thus, what has to be sewed is the copy of application which has been "submitted". What is contemplated is that the application in Form C should be "submitted" and then the Creditor should serve forthwith a copy of the application to the Guarantor and the Corporate Debtor for whom the Guarantor is a Personal Guarantor. The procedure thus prescribed will give the Personal Guarantor, notice of the application already filed before the Adjudicating Authority. Section 95(5) requires the Creditor to provide a copy of the application "made under sub-section (1)", to the Debtor. Thus, serving advance copy is not contemplated.
The arguments that Section 98 provides for replacement of the Resolution Professional and hence the Guarantor should have an opportunity to seek replacement of Resolution Professional and hence he should be heard before appointment of IRP was also considered and held that going through Section 98 of IBC, 2016, it is found that Section 98 is not stage specific. Section 98 itself shows that the section could be resorted to even at stages like implementation of repayment plan which would be a stage beyond Section 116, where implementation and supervision of repayment plan is provided for - Section 99 (4) of IBC, empowers the Resolution Professional to seek further information or explanation in connection with the application as may be required from the Debtor or the Creditor or any other person, who, in the opinion of the Resolution Professional, may provide such information. Hence it is not as if, the Debtor is not provided an audience before the submission of the report.
The constitutional vires of Section 95, 96, 97, 99 & 100 of the Code has been challenged before the Supreme Court, on the ground that no opportunity of being heard has been provided in favour of the affected party before the initiation of the insolvency process and that the impugned provisions denude the personal guarantors of the opportunity to raise objections on jurisdictional issues such as double dipping, period of limitation, inconsistent, illegal & false claims, quantum, suppression of facts, etc, at the very threshold.
This Tribunal is of the considered opinion that there is no hurdle to entertain this application under Section 95 of IBC, 2016, since the application is found to be complete - Petition admitted - moratorium declared.
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2022 (6) TMI 345 - NATIONAL COMPANY LAW TRIBUNAL , CHANDIGARH BENCH
Deposit the performance guarantee immediately and in case of his failure, to forfeit the deposit given as EMD as well as partial Performance Security - HELD THAT:- It is noted that though the CIRP started on 28.02.2019, precious time has been lost mainly due to the fact that the respondent has not been able to deposit the performance guarantee in time despite several accommodations made by the CoC - It is also noted that the H-2 Bidder i.e. M/s. Pioneer Facor IT Infra Developers Private Limited (PHK) Consortium has come with a resolution bid of Rs. 75.50 Crores. Records indicate that the H-2 Bidder was rejected by the CoC at the time of the original finalization of the resolution plan because his bid offer was only Rs. 74 Crores less than the H-1 Bidder. The Applicant-Resolution Professional has prayed for a direction to the respondent not only to pay the performance guarantee but also to match the revised bid of Rs. 75.50 Crores now offered by the H-2 Bidder. This Bench, however, feels that this is against the basic tenets of law of contract and performance of a contract. The respondent must pay as per the original bid of Rs. 75 Crores, failing which the original bid fails. Thus, there is no requirement for him to match the revised bid of H-2 Bidder as the original bid is now closed.
The respondent is, however, directed to deposit the performance guarantee within a period of one month from the date of this order and the same should be to the satisfaction of the CoC. In the event of the failure of the respondent to comply with the conditions of the performance guarantee, the CoC is directed to first negotiate with the H-2 Bidder to explore the possibility of the resolution in a time-bound manner - Application disposed off.
Rejection of Resolution Plan - HELD THAT:- This application is closely linked with the IA No. 716/2020 in the sense that the present applicant was the H-2 Bidder in the CIRP of the Corporate Debtor i.e. International Mega Food Park Limited. In the present application, the applicant has made several allegations regarding the way CIRP proceedings was conducted and the respondent No. 3 - Ajay Yadav and Lata Yadav were declared H-1 Bidder over and above the offer given by the applicant - this Bench has already directed in the order of IA No. 716/2020 that the present offer given by the applicant-H2 Bidder should be considered by the CoC in case there is a failure on the part of respondent No. 3-Ajay Yadav and Lata Yadav (H-1 Bidder) to furnish the performance security within the extended time limit allowed to them by this Bench. It is again reiterated that the CIRP is strictly a time-bound process and any action causing delay will only further devalue the assets of the corporate debtor.
Application disposed off.
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2022 (6) TMI 315 - MADRAS HIGH COURT
Seeking direction to the first respondent to register the complaint filed by the petitioner against the third respondent for committing various offences under Indian Penal Code - Settlement of amount between banks without issuing due certificates - pecuniary advantage received from the stakeholders for settling their amount - sale of Stock Materials and container at lower price - non-production of documents relating to the sale of scrap materials - HELD THAT:- From the consideration of materials produced and the submission of the parties, the third respondent appears to have acted as per the terms and conditions imposed in the order dated 23.12.2020. If at all the petitioner has any grievance, is open to the petitioner to approach the appropriate forum as provided under Section 217 and 218 of the Insolvency and Bankruptcy Code, 2016. There is no prima-facie case made out to register a criminal complaint against the third respondent.
This Criminal Original Petition is dismissed.
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2022 (6) TMI 314 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH , NEW DELHI
CIRP process - Leave encashment amount payable to the applicant shall be treated as part of CIRP cost, or not - HELD THAT:- Admittedly, the gratuity amount of Rs. 8,02,500/- has been paid, during the pendency of the I.A before the Adjudicating Authority - Leave Encashment of Rs. 5,67,100/- has been admitted to be payable and since being Director he has been treated as related party and therefore, the Adjudicating Authority has rightly recorded that leave encashment amount payable to the applicant shall be treated as part of CIRP cost and as the Resolution Plan finalized by CoC the approval is pending before the Adjudicating Authority, once approved, the leave encashment will be considered in accordance with law.
The compensation amount of Rs. 25,68,000/- claimed by the Appellant is not payable in terms of the agreement dated 13.02.2019 - Keeping in view the relevant rules and the Agreement dated 13.02.2019, it is held that there is no provision for payment of compensation to the Appellant.
Further it is observed that even the stipulated one month notice period has been complied with and admittedly the salary payment of Rs. 2,14,000/- has also been paid. Since, payment has been settled in accordance with law, the payment of any further interest does not arise.
Appeal dismissed.
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2022 (6) TMI 313 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , NEW DELHI
Levy of Labor cess - alleged cess payable for the construction of Oil Palm Division - HELD THAT:- From the facts brought on the record, it is clear that the Respondents in Company Appeal (AT) (Ins.) Nos. 68, 69 and 71 of 2022 have not filed any claim in the CIRP. Thus, after approval of the Resolution Plan, they can neither press any claim nor issue any demand notice. We, thus, allow Company Appeal (AT) (Ins.) Nos. 68, 69 and 71 by allowing I.A Nos. 1418/2021, 2562/2021 and 2577/2021.
The last notice was issued on 11.12.2019 by the Additional Collector i.e. subsequent to closure of the CIRP. The proceedings initiated under Section 63 (1-A) of the Maharashtra Tenancy and Agricultural Land Act, 1948 could very well be proceeded with and cannot be subject matter of the insolvency process. The facts of the Company Appeal (AT) (Ins.) No. 70 of 2022 are fully covered by the Judgment of the Hon’ble Supreme Court in “Embassy Property Developments Pvt. Ltd. vs. State of Karnataka and Ors. [2019 (12) TMI 188 - SUPREME COURT]. We, thus, are of the view that IA 111/2021 filed by the Appellant against the Additional Collector and Tehsildar deserves to be rejected. Company Appeal (AT) (Ins.) No. 70 of 2022 is disposed of while rejecting IA No. 111/2021.
Appeal disposed off.
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2022 (6) TMI 312 - NATIONAL COMPANY LAW TRIBUNAL , MUMBAI BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Debt or not - existence of debt and dispute or not - HELD THAT:- It is very clear from the document placed by the Respondent that the essence of transaction as entered between the parties herein is advance payment/final payment towards supply of materials, commissioning of wind turbines/ completion of wind energy project for subsidiaries of IEDCL. The advance/progressive payments for such work is clearly authored by ILFS group and the loan amount were adjusted at the time of final payment for the work performed by WWIL and its subsidiary company WWWRDPL. The aforesaid facts clearly suggest that the payment has been made by IFIN to WWIL and its subsidiary towards supply of material and for rendering services - The Corporate Debtor herein is merely the corporate guarantor along with another Vishwind Infrastructure LLP as co-guarantor.
The amounts assigned by IFIN to the Financial Creditor have been accounted for by Vejas Power Project Limited, as ‘capital advance’ in the audited balance sheet as filed by the Registrar of Companies for F.Y. 18 &F.Y. 19. This clearly shows that the Vejas Power Project Limited has knowledge that the amount due does not come within the meaning of ‘financial debt’, therefore, accounted the amount as a ‘Capital Advance’ and not as a “Financial Loan” - It is settled law that under Section 129 of the Companies Act, 2013 financial statements shall give true and fair view of the state of affairs of company and shall comply with the Accounting Standard. Therefore, no contrary stand can be taken by Vejas Power Project Limited.
In this case, both sides have clearly functioned as collective through their group companies in order to fulfil the terms of MoU and the transactions as stated by the Petitioner needs to be looked as a part of the transaction under the initial MoU dated 27.07.2010 entered between IL & FS Energy Development Company Limited (IEDCL) and Wind World India Limited (WWIL). Thus, the amount that has been disbursed by IFIN do not come within meaning of ‘Financial Debt’ as defined under Section 5(8) of the IBC.
Application dismissed as not maintainable.
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2022 (6) TMI 311 - NATIONAL COMPANY LAW TRIBUNAL , AHMEDABAD BENCH
Liquidation of the Corporate Debtor - Section 33(2) and 60(5) of Insolvency and Bankruptcy Code, 2016 - HELD THAT:- Since the COC in its commercial wisdom has decided to take the Corporate Debtor in liquidation, it is opined that the decision of the COC should not be interfered with. The present application seeking liquidation of the Corporate Debtor M/s. Vibrant Fab Private Limited, in the manner laid down in Chapter III of Part II of the Code is allowed.
The Corporate Debtor is ordered to be liquidated - application allowed.
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