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Insolvency and Bankruptcy - Case Laws
Showing 21 to 40 of 160 Records
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2022 (6) TMI 1216
Seeking handover possession of four Apartments during the period when CIRP was going on - whether during the period of CIRP, the relief sought by the applicant to handover possession of four Apartments to the applicant can be allowed? - HELD THAT:- A reading of Section 43(2)(b) of the IBC, 2016, would make it clear that if the prayer of the applicant is allowed which will be in the nature of transferring/alienating or disposing off the Corporate Debtor any of its assets or any legal rights or beneficial interest therein. This will result in change in the status of the assets of the Corporate Debtor after the commencement of Insolvency Resolution Process. The transfer has the effect of putting such Creditor or surety or a guarantor in a beneficial position than it would have been in the event of a distribution of assets being made in accordance with Section 53. Moreover, while admitting the application moratorium has been ordered under Section 14 of the IBC.
The RP cannot handover the possession of the four Apartments to the applicant. The applicant is to wait till the CIRP is concluded - Application dismissed.
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2022 (6) TMI 1215
Seeking direction to respondents to provide the books of accounts and all the relevant information in respect of the Corporate Debtor - seeking direction to assist the IRP to identify the company assets - handing over the Keys of the factory gate and extension of all the support and cooperation to complete the CIR Process - HELD THAT:- Independent of all the legal proceedings pending, the respondent preferred a proposal for One Time Settlement (OTS) before the Financial Creditor and also the Interim Resolution Professional appointed by this Tribunal. While the proposal for OTS preferred by the respondent was pending consideration with the Financial Creditor, the WP No. 15804 of 2022 was disposed off with a direction to the Resolution Professional to place the proposal before the Committee of Creditors (CoC) at the next meeting. Thereupon, the proposal for OTS has been sanctioned by the Financial Creditor and the same was communicated to the respondent vide letter dated 04/06/2022 issued by the Financial Creditor. In view of the OTS approved by the Financial Creditor, the respondent should be permitted to settle his entire liability towards the Financial Creditor within the time stipulated in the OTS.
On going through the OTS proposal, which was approved by the Financial Creditor who has filed the CP(IB)/34(KOB)/2021, it is seen that the respondent can clear the liability to the Financial Creditor by 31/07/2022. It is also stated that if the claim of the Bank of Rs.105 lakh is paid as per the OTS approved, the Bank is ready to withdraw their claim before the CoC. It is also stated that if the Corporate Debtor delays the payment instalments, that will attract interest at the rate of 9% - Since the Corporate Debtor/Respondent has got time upto 31/07/2022, the prayer of the IRP to provide the books of accounts, and all the relevant information in respect of the Corporate Debtor, assist the IRP to identify the company assets, handover the Keys of the factory gate and extend all the support and cooperation to complete the CIR Process cannot be granted at present, as the Financial Creditor who has filed the case before this Tribunal has agreed to the OTS, presumably with the approval of CoC, the IRP has to wait till the cut off date provided in the OTS approval.
Application dismissed.
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2022 (6) TMI 1214
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- The Counsel for the Corporate Debtor, during the course of hearing of the matter, on 13.04.2022 has admitted the liability and claim filed by the Operational Creditor. The Counsel for the Corporate Debtor further submitted that the admission is made as per the instructions of her client and, as on date, the Corporate Debtor is unable to pay the amount claimed in the section 9 application - It is clear from the order of Tribunal that the Counsel for the Corporate Debtor has specifically admitted the debt and submitted to the Tribunal to pass appropriate orders. The counsel for the Corporate Debtor, on instructions of her client, has therefore admitted the debt and default.
Upon appreciation of the documents placed on record to substantiate their respective claims, this Adjudicating Authority is of the view that there is an operational debt which is due from the Corporate Debtor and the Corporate Debtor has defaulted in making payment of the amount due and accepted the said default. Therefore, in the absence of any pre-existing dispute, this tribunal admits this application and initiates CIRP on the Corporate Debtor with immediate effect.
Application admitted - moratorium declared.
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2022 (6) TMI 1187
Seeking direction to conduct a forensic & legal audit by a professionally qualified expert and appointment of the same - seeking direction on the Respondent No. 1 & Respondent No. 2 to cooperate with the Applicant and to hand over him all the books of accounts, documents, legal papers concerning the past and present affairs of the Corporate Debtor - seeking unhindered and unobstructed access of all the properties of the Corporate Debtor by the Applicant - verification of whole process of Appraisal, Sanction, Documentation, Disbursement and monitoring of the Credit Facilities granted to the Corporate Debtor - HELD THAT:- Since there has been no co-operation from the directors in spite of various orders dated 04 March, 2020, 18 November, 2021, 17 December, 2021 and 09 February, 2022 and bailable warrant dated 11 March, 2022 and 28 March, 2022 passed by this Adjudicating Authority, which were to be recalled by executing a personal bond of Rs. 1,00,000/- each upon production.
This Adjudicating Authority had time and again directed the police authorities to cause production of two directors Mr. Pankaj Kumar Singh and Mr. Manoj Kumar Singh in the court but the same was not fruitful, in so far Mr. Manoj Kumar Singh is concerned - It is noticed from the report of the police authorities that Mr. Manoj Kumar Singh's whereabouts are not traceable. This is not acceptable to the Court, considering the vast resources available to the police. In today's day and age, it is highly improbably that a person can just disappear off the face of the earth.
Mr. Sudeep Sarkar, IPS, Deputy Commissioner of Police, South East Division is directed to be present before this Court on the next date of hearing in case Mr. Manoj Kumar Singh is not traced and brought to court. Time is of the essence since the entire liquidation process, which is to be completed within a defined time-frame under the Insolvency & Bankruptcy Code, 2016, is required to be completed.
Application disposed off.
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2022 (6) TMI 1186
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- The applicant has claimed the default on part of the Respondent for amount of Rs. 13,98,035 (Rupees Thirteen Lakhs Ninety Eight Thousand and Thirty Five), including 18% interest - In compliance of Section 9(3)(b) of the Insolvency and Bankruptcy Code, 2016, the Operational Creditor has filed affidavit dated 25.07.2019 stating that no notice of any preexisting dispute has been received by the Applicant from the Corporate Debtor relating to the dispute of the un-paid Operational Debt.
This Tribunal vide order dated 21.09.2021 directed the counsel of Operational Creditor (Operational Creditor is subjected to CIRP) to file an affidavit cum undertaking to pay an amount of Rs. 2 Lacs to IRP as mobilization advance which may be ordered by the Tribunal if the CIRP is initiated against the Corporate Debtor and also continue to keep paying the fee and expenses of RP until the constitution of CoC. The Liquidator of the Operational Creditor filed an affidavit on 11.01.2022 stating that the Operational Creditor/Applicant has sufficient funds to pay the CIRP Cost, in case CIRP of the Corporate Debtor is admitted, he undertakes to pay the same as directed by this Hon'ble Tribunal.
This Adjudicating Authority is of the view that there is an operational debt which is due from the Corporate Debtor and the Corporate Debtor has defaulted in making payment of the amount due and along with that, in the absence of any pre-existing dispute, this tribunal admits this application and initiates CIRP on the Corporate Debtor with immediate effect.
Application admitted - moratorium declared.
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2022 (6) TMI 1185
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - threshold limit applicable on debt arising post 24.03.2020 - Section 4 of the IBC, 2016 - HELD THAT:- On perusal of records it is seen that the present IB/1424/ND/2019 had been revived vide order dated 31.03.2022 in IA 1399/ND/2022 and the amount of debt claimed by the Applicant in the said application was Rs. 4,97,902/- as on 31.03.2022. Therefore, the notification of MCA dated 24.3.2020, shall be applicable on the present application. As per notification of MCA dated 24.3.2020, the threshold limit to be considered for application filed u/s. 7 or 9 will be Rs. 1 Crore. This threshold limit will be applicable for applications filed on or after 24.3.3020 even if the debt is of date earlier than 24.03.2020. Since the present application under section 9 of the code had been revived on 31.03.2022, therefore the threshold limit of Rs. 1 Crore of debt will be applicable in the given facts.
The intent of legislation to fix the threshold limit was to save the Companies from being rotted to NCLT for initiation of CIRP proceedings, due to COIVD-19 effect. The said notification was always prospective in nature but having retrospective repercussion also. Hence, even if the amount was due prior to 24.03.2020 and the demand notice was send prior to that the petition u/s. 7 or 9 of the Code cannot be filed against the Corporate Debtor. Henceforth, for the above-mentioned reasons, the present Application cannot be admitted.
Application dismissed being not maintainable.
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2022 (6) TMI 1184
Liquidation of Corporate Debtor - appointment of liquidator for undertaking liquidation process - section 33(2) of I&B Code - HELD THAT:- Since this Adjudicating Authority did not receive any Resolution Plan under Sub-Section (6) of Section 30 of the I & B Code, 2016, this Adjudicating Authority deems it proper to allow the Application.
This Adjudicating Authority hereby order for Liquidation of M/s. Sesha Saila Power and Engineering Private Limited which shall be conducted in the manner as laid down in Chapter III of part II of the I & B Code, 2016 - This Adjudicating Authority hereby appoint Mr. Anil Seetaram Vaidya as Liquidator as resolved by CoC.
Application allowed.
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2022 (6) TMI 1183
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - petition filed by Corporate Applicant for initiation of Corporate Insolvency Resolution Process (CIRP) against itself - section 10 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- There is no dispute from any quarter towards the fact that the debt is due and payable by the Corporate Applicant to various creditors and that the Corporate Applicant is unable to pay the same.
The application is free from defects and complete in all aspects as required under the law. The Application shows that the Corporate Debtor is in default of a debt that is due and payable, and the default is more than the threshold amount as stipulated under section 4(1) of the Code at the relevant time. The default stands established and there is no reason to deny the admission of the present Application.
In the light of the facts stated in the application and the evidence placed on record, this Adjudicating Authority admits this Application and orders initiation of CIRP against the Corporate Debtor - Application allowed.
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2022 (6) TMI 1182
Seeking Liquidation of Corporate Debtor - seeking appointment of Liquidator of the Corporate Debtor - HELD THAT:- Since this Adjudicating Authority did not receive any Resolution Plan under Sub-Section (6) of Section 30 of the I & B Code, 2016, and this Adjudicating Authority deems it proper to allow the Application.
This Adjudicating Authority hereby order for Liquidation of M/s. PVK Engineers Private Limited, which shall be conducted in the manner as laid down in Chapter III of part II of the I & B Code, 2016 - Application allowed.
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2022 (6) TMI 1181
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - invoices forged by the Applicant to extort money - invoices not authenticate - HELD THAT:- The Applicant has alleged a default on part of the Respondent in payment of a sum of Rs. Rs. 9,46,177/-. The Respondent has, in reply to the Demand Notice dated 16.05.2019 in Form 3 under Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, issued by the Petitioner/Applicant, raised dispute in relation to amount due and the invoices raised. The Respondent has even disputed the invoices raised by the Petitioner/Applicant by stating that certain invoices raised by the Petitioner/Applicant are deliberately and malafidely forged.
In terms of this judgment of the Supreme Court in Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software (P) Limited [2017 (9) TMI 1270 - SUPREME COURT], it is clear that to qualify as pre-existing dispute, the dispute has to be raised before the issuance of notice u/s. 8, IBC Code, 2016. The Corporate Debtor must bring to the notice of the Operational Creditor the existence of a dispute and/or the record of the pendency of a suit or arbitration proceeding filed before the receipt of such notice or invoice in relation to such dispute. The Respondent, in reply to the notice u/s. 8, had stated that the amount due as per his ledger was Rs. 210/- which was supported by his books of accounts. The Respondent has failed to produce any prior communication before the issuance of notice u/s. 8 of IBC Code, 2016 so as to establish that the dispute was pre-existing. Thus, this Tribunal is of the view that no pre-existing dispute exists between the parties.
The Respondent has alleged that invoices have been forged by the Applicant to extort money from the Respondent. Both the Respondent and the Applicant have attached their ledgers which do not match and the Respondent has claimed that invoices have been forged by the Applicant - As per the ledger maintained by the Respondent, a mere amount of Rs. 210 is due to the Applicant. The amount of debt due, if any, cannot be ascertained as long as the authenticity of invoices is proved.
The dispute with respect to forgery of invoices cannot be decided by this Adjudicating Authority. This Adjudicating Authority is not expected to ascertain the veracity of invoices raised. Therefore, the Applicant may explore other legal remedies.
In the present case, the authenticity of the invoices is itself in doubt, the debt cannot be established at this stage and therefore, proceedings under Section 9 of the IBC Code, 2016 cannot be initiated against the Respondent - application dismissed.
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2022 (6) TMI 1137
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 Corporate Debtor contended that the Financial Creditor is guilty of forum shopping and has filed proceedings before DRT for the same cause. However, it is to be noted that the purpose of proceedings under Recovery of Debts Due to Banks and Financial Institutions (RDDBFI Act), 1993 is debt recovery and an action under the Insolvency and Bankruptcy Code aims at resolution of the insolvency of the Corporate Debtor. As such, taking action under one legislation cannot curtail the Financial Creditor’s right under the Insolvency and Bankruptcy Code 2016.
Time Limitation - HELD THAT:- It can be seen that the date of default is mentioned to be 30.09.2012 i.e the date on which the account became NPA. Accordingly, the limitation period for filing the application would ordinarily end on 30.09.2015. However, balance sheets of the Corporate Debtor from the year 2012 to 2019 have been placed on record by the Financial Creditor in the supplementary affidavit dated 6.02.2020. In these Balance sheets, multiple acknowledgments of debt to the Financial Creditor have been made by the Corporate Debtor, specifically, the Corporate Debtor has acknowledged the debt in the balance sheets of Financial Years 2012-13, 2014-15, 2015-16, 2016-17, 2017-18 and 2018-19 - due to the specific admissions of debt by the Corporate Debtor, section 18 of the Limitation Act, 1963 will come into effect and result in computation of fresh limitation period of three years from the date of acknowledgment in each balance sheet. Since the last of such acknowledgments was made on 31st March 2019, the limitation period would last up till 31st March 2022. As such, the present petition is well within limitation.
Whether admissions are not valid as the debt so acknowledged by the Corporate Debtor in the said balance sheets? - HELD THAT:- This Adjudicating Authority is satisfied that the debt albeit disputed was due from the Corporate Debtor to the Financial Creditor and the Corporate Debtor has made a default in the payment of the same and has also acknowledged the said fact and therefore the plea of Corporate Debtor is untenable and needs to be rejected.
Application admitted - moratorium declared.
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2022 (6) TMI 1136
Seeking initiation of Liquidation Process of the Corporate Debtor - seeking appointment of Resolution Professional as the Liquidator of the Corporate Debtor - Section 33(1)(a) of the I&B Code, 2016 - HELD THAT:- On 18.05.2022, when the matter came up for orders, the learned Resolution Professional submitted that the CoC held on 13.05.2022 noted the failure of the applicants in submitting a joint resolution plan. In the said meeting, the Resolution Applicants appeared and sought time till 16.05.2022 for submitting their joint Resolution Plan as committed before this Tribunal. Considering their request, the 25th meeting of CoC directed them to submit their Plan latest by 16.05.2022 and decided to adjourn the meeting further to 16.05.2022 for considering the progress of submission of Resolution Plan. On 16.05.2022, both the applicants intimated their inability to submit a joint Resolution Plan by email and confirmed this matter by appearing before the adjourned CoC held on 16. 05.2022.
It is clear that the only option left with this Tribunal to order the liquidation of the Corporate Debtor. Hence, this Tribunal proceeded to order the liquidation of the Corporate Debtor.
M/s. Trivandrum International Health Services Limited is hereby put under liquidation with immediate effect under Section 33 (1) of I&B Code, 2016 - Application allowed.
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2022 (6) TMI 1087
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 Corporate Debtor has raised issue that the Financial Creditor is itself undergoing resolution process. In this regard, it is submitted by the Financial Creditor that at the time of initiation of the present case, the Corporate Debtor was not under CIRP and hence the Corporate Debtor does not fall within the purview of the provisions of Section 11 of the IBC. In any event, explanation II of Section 11 of the IBC categorically clarifies that nothing in this Section shall prevent the Corporate Debtor, referred to in Clauses (a) to (d) of the said Section from initiating CIRP against another Corporate Debtor. Therefore, it is clear from the statute itself that the fact that the Financial Creditor herein is undergoing resolution process itself, is not a bar to maintain the instant application against the Corporate Debtor.
In the present case, the Corporate Debtor was and is unable to show that there was no default and on the contrary, the Corporate Debtor has admitted the default in repayment of loan on its part. It is apparent that the Corporate Debtor is unable to repay the loan amount and has committed default and the present petition is, therefore, deserves to be admitted for CIRP.
Petition admitted - moratorium declared.
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2022 (6) TMI 1086
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:- It is seen that the present application has been filed on 17.05.2021 and the account of corporate debtor was declared NPA on 29.09.2017. However, a recovery certificate of Hon'ble DRT was issued in favour of the financial creditor vide order 04.02.2020, which has given rise to a fresh cause of action to the financial creditor to initiate proceeding under Section 7 of IBC within 3 years from the date of the order. Accordingly, the present application is not barred by limitation.
Establishment of 'default' on part of the Corporate Debtor - HELD THAT:- It is clearly established that the corporate debtor had approached the applicant for taking loan facility, which was sanctioned by the financial creditor and relevant documents were executed. However, the corporate debtor failed to adhere to terms of the sanction letter and defaulted in repayment of the outstanding financial debt. Therefore their account was declared NPA and from the documentary evidence it is proved that the financial creditor is entitled to recover the outstanding dues from the corporate debtor. It is added that in terms of Section 4 of IBC the corporate debtor has defaulted in payment of more than One Lakh and Hence CIRP must be initiated. The claim of the financial creditor has also been confirmed by the Hon'ble Debt Recovery Tribunal vide order dated 04.02.2020. It is pertinent to mention that the corporate debtor has failed to appear and present its defence; accordingly the present matter has been proceeded ex-parte.
On perusal of Form-I filed under Section 7 of the Code read with Rule 4 of the Rules shows that the form is complete and there is no infirmity in the same. It is also seen that there is no disciplinary proceeding pending against the proposed Interim Resolution Professional - the present application is complete in all respect. The financial creditor is entitled to move the application against the corporate debtor in view of admitted outstanding financial debt and default of the same by the corporate debtor and the financial debt has also not been refuted by the Corporate Debtor.
Application admitted - moratorium declared.
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2022 (6) TMI 1047
Seeking extinguishment of all the claims made against the Applicant - period prior to the effective date i.e. 20th September, 2018 - requesting the Respondents to file fresh claims and dues payable to the Transport Department Commissioner of Transport, Guwahati, Assam - Section 60(5) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- Since the outstanding liabilities of Road tax/ MV tax etc. prior to 20.09.2018 in respect of vehicles of the gardens under Assam Company India Limited registered in the offices of the District Transport Officer of Dibrugarh, Sivsagar, Tinsukia and Nagaon have been exempted by the Government of Assam vide notification dated 30/05/2022, the Petition has now become infructuous.
The Respondents are directed to issue fresh claims on the Applicant for the dues post the effective date i.e. 21st September, 2018 and onwards within 15 days from today - The Applicant is directed to pay the dues of the Respondents from 21/09/2018 onwards within fifteen days from the date of the receipt of the demand notice /letter from the Respondents.
Application disposed off.
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2022 (6) TMI 1046
Seeking dissolution of the Corporate Person through voluntary liquidation - Section 59 of the Insolvency & Bankruptcy Code, 2016 - HELD THAT:- On verification of the documents produced, it is noticed that the affairs of the Corporate Person have been completely wound up and its assets were liquidated following the relevant provisions in the IBBI (Voluntary Liquidation Process), 2017. Hence, the Corporate Person may be voluntarily liquidated so as to get it dissolved.
This Tribunal approves the voluntary liquidation and dissolution of the Corporate Person and order that the Corporate Person shall stand dissolved from the date of this order - Petition allowed.
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2022 (6) TMI 1045
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:- It is a well settled law that the limitation period begins from the date when the cause of action arises. Hence, the cause of action arises on 16.12.2016, which is the date of default. Thus, the present petition is within limitation.
It is observed from the records that CD has been given multiple opportunities to appear before this tribunal and plead his case including vide order dated 22-03-2022. In compliance of the order of this Tribunal dated 22-03-2022, FC had issued a notice to CD intimating the next date of hearing that is 02-05-2022 annexed as Exhibit B to Affidavit of Service (Pg 5). However, The CD chose not to appear and plead the case though the CD had filed his reply on record on 15-02-2020. Hence, the matter is taken on merits as is to be decided ex-parte.
It is observed that there was debt, there was default and the petition has been filed within the period of limitation - the petition deserves admission.
Petition admitted - moratorium declared.
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2022 (6) TMI 1044
Refund of amount towards the I.R.P to meet out the initial expenses - non-speaking order - Section 53(1) (a) of the Insolvency and Bankruptcy code, 2016 - seeking modification in the list of stakeholders and to include the unpaid CIRP cost in the stakeholders list of Goodwin Packpet Private Limited - HELD THAT:- A reading of the receipt dated 12/01/2022 issued by the Former IRP Shri. Satiq Buhari, makes it clear that the Operational Creditor Shri. Amrjeeth Singh, Proprietor of Vinneeth Enterprises has deposited an amount of Rs. 2,00,000/- with the IRP to meet the initial expenses of CIRP and it was resolved in the 1st CoC meeting convened on 18/11/2020 to refund the said amount to the Appellant. The contention raised by the 2nd respondent that he has not received the receipt of voucher from the Former IRP Shri. Satiq Buhari is not a ground to reject the request of the Appellant to return the amount of Rs. 2,00,000/- paid by him being the initial expenses of CIRP. There is considerable delay on the part of the former IRP Shri. Satiq Buhari to communicate the relevant papers to the Liquidator. However, the amount of Rs. 2,00,000/- is to be paid back to the Operational Creditor by the Liquidator, as the said amount is rightfully payable to him when the CIRP proceeds are finalized.
The former IRP who appeared through VC stated that there is a delay on his part to reply the communication of the Liquidation and that the same may be excused. The 2nd respondent Liquidator stated that he is ready to accept the claim of Rs. 2,00,000/- if this Tribunal gives a direction to that affect. Since we find that the amount of Rs. 2,00,000/- is legally entitled to the Operational Creditor Shri. Amrjeeth Singh, we allow this Application and direct the 2nd respondent to refund the amount of Rs. 2,00,000/- to Shri. Amrjeeth Singh, the Operational Creditor/Appellant towards the initial expenses of CIRP during the time of distribution of assets from the proceeds from the sale of liquidation assets, with due priority as mandated under Section 53(1)(a) of the Insolvency and Bankruptcy Code, 2016.
The 2nd respondent is also directed to modify the list of Stakeholders and to include the unpaid CIRP costs of Rs. 2,00,000/- in the stakeholders list of Goodwin Packpet Private Limited.
Application disposed off.
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2022 (6) TMI 990
Right of Auction purchaser - Seeking refunds of certain amount which have deposited under protest for discharge the contractual obligation - Extent and the scope of judicial intervention in writ jurisdiction - contractual obligation embodied in the commercial contract - recovery of arrears of the lease rentals and interest thereon, once the petitioner stepped into the shoes of the Corporate Debtor lessee - case of petitioner is that petitioner being a bonafide auction purchaser, purchased immovable asscets consequent to the auction/sale held in pursuance of the orders of NCLT after paying the bid amount cannot be fastened with any monetory liability which was attached with Corporare Debtor under Liquidation - whether this Court can in exercise of the jurisdiction under Article 226 of the Constitution of India by virtue of judicial fiat grant relief to the petitioner which tantamount to resiling and wriggling away from a contractual obligation?
HELD THAT:- In the case in hand the Court finds that only a solitary relief has been sought in the nature of mandamus directing the GNIDA to refund the amount so deposited by the petitioner along with 18% per annum. The judgment in the case of Suganmal [1964 (11) TMI 7 - SUPREME COURT] and Salonah Tea Company Ltd. [1987 (12) TMI 3 - SUPREME COURT] are squarely applicable in the facts of the present case particularly when refund is being sought on the basis of certain deposits so made by the petitioner for discharging the contractual obligation. This Court is of the firm opinion that the present writ petition so instituted, seeking the solitary relief of mandamus without assailing any order, is not maintainable.
Meticulously, analyzing the facts of the case in hand from the four corners of law this Court cannot subscribe to the argument of the learned Senior Counsel who appears for the petitioner as the controversy sought to raked up by the petitioner devolves around factual issues relating to the contractual obligation so embodied in the underline instruments be that the lease deed so executed from time to time or the Transfer Memorandum so executed between the parties. More so, the sale certificate itself has been issued after noticing the fact that the petitioner transferee (auction purchaser) is bound by the covenants contained in the lease deed as well as the Transfer Memorandum. Writ jurisdiction cannot be expanded in an elastic manner so as to stretch it to such a position which tantamounts to giving its judicial seal while delving into the factual issue as to whether pressure/coercion so adopted was practiced upon the petitioner.
It is thus concluded and held as under:-
(a). Merely because the petitioner is a bonafide auction purchaser who had purchased assets Corporate Debtor through auction/bidding so conducted by orders of NCLT, will not absolve it from paying arrears of lease rental and interest thereon.
(b). The Insolvency Bankruptcy Code- 2016 grants limited protection to the petitioner (auction purchaser) while allowing it to step into the shoes of the Corporate Debtor but in order to the lessee of the principle lessor (GNIDA) the petitioner has to honor the commitments and discharge its contractual obligation as embodied in the lease deeds, Transfer Memorandum and Sale Certificate.
(c). The conduct of the petitioner also dis-entitles it to be granted relief under the equitable jurisdiction as the petitioner has approbated and reprobated at the same time as on one hand it seeks to become a lessee while being put in possession for enjoying the immovable assets of Corporate Debtor but on the other hand it wriggles and resiles from the contractual obligation.
(d). The words so employed in the Certificate of Sale Deed dated 11.09.2019 being “AS IS WHERE IS”, ”AS IS WHAT IS”, “WHATEVER THERE IS” AND “NO RECOURSE” read with the Transfer Memorandum dated 24.12.2020 so executed between the petitioner (auction purchaser) and GNIDA as well as the Sale Certificate dated 30.07.2021 itself creates contractual obligation upon the petitioner to honor the commitments and to discharge the obligations so embodied in the lease deed dated 26.06.2021 and the subsequent lease deeds for the payment of past lease rentals and interest thereon.
(e). GNIDA being the principal lessor has paramount interest over the demised land put to auction and it has legal as well as contractual right to raise demand of out standing arrears of lease rentals and interest thereon.
(f). High Court under Article 226 of the Constitution of India cannot by a judicial fiat creates a podium to facilitate avoidance of agreements while wriggling out from contractual obligations so embodied therein.
(g). A writ petition containing solitary relief of refund of the amount deposited for fulfilling contractual obligation, is not maintainable.
(h). Even otherwise, in absence of any challenge being made to the covenants of the Transfer Memorandum dated 24.12.2020 and the Sale Certificate dated 30.07.2021, the petitioner is not entitled to refund of the amount so deposited by him claiming it to be under protest.
The writ petition is devoid of merit and thus, liable to be dismissed. It is, therefore, dismissed.
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2022 (6) TMI 989
Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- In view of the existence of dispute prior to the demand notice dated 27.11.2017 the Adjudicating Authority rightly dismissed the Application filed by the Appellant.
Appeal dismissed.
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