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Insolvency and Bankruptcy - Case Laws
Showing 61 to 80 of 160 Records
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2022 (6) TMI 866
CIRP - Prosecution proceedings - Failure to provide all the requisite information to the RP - violation of provisions contained in Sections 70, 73 (b) and 19(1) r/w Section 235A of I&B Code - HELD THAT:- IBBI has powers to set the criminal law in motion through its authorized officer. In view of Section 236(1) thereof, the offences punishable under the said Code, are triable by the Special Courts so constituted under Chapter XXVIII of the Companies Act, 2013. The complainant has placed on record notification number S.O. 2554(E) dated 27.07.2016, whereby this Court has been conferred with the jurisdiction to try the offences in the capacity of Special Court so constituted in terms of Section 435(1)(a) of the Companies Act, 2013.
After considering the documentary evidence placed on record, this Court is satisfied that prima facie the aforesaid offences under the Insolvency & Bankruptcy Code, 2016 have been committed by the accused person. Thus, cognizance of said offences is taken - Since the present complaint has been made by a public servant in his official capacity, the pre-summoning evidence is required to be dispensed with in view of proviso to Section 200 CrPC.
List on 07.07.2022.
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2022 (6) TMI 826
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - during pendency of proceedings under SARFAESI Act, 2002, petition under IBC filed - existence of debt and dispute or not - time limitation - HELD THAT:- The date of default in the instant petition is 30 June 2016 i.e. the date on which the accounts of the Corporate Debtor were declared NPA. The date of filing of this petition is 24 October, 2019, which would ordinarily mean that the petition would be barred by limitation. However, in light of the acknowledgement of the Corporate Debtor towards its debt due to the Financial Creditor in its balance sheets for years ending on 31 March 2018 and 31 March 2019 as well the admission of the said fact in the auditor's reports attached to the balance sheets, specifically at pages 36 and 169 respectively of the rejoinder, fresh limitation periods shall ensue from the date of the acknowledgements. As such the instant petition is well within the period of limitation.
Further a demand letter under section 13(2) of the SARFAESI Act, 2002 was issued on 8 March 2017. The contention of the Corporate Debtor is that during the pendency of proceedings under SARFAESI Act, 2002, a petition under the Code cannot be filed. The said contention cannot be considered since actions under the Code and the SARFAESI Act are two different legislations in two different fields. The purpose of one is recovery and the purpose of the other is resolution of insolvency. Therefore, proceeding with one course of action cannot hinder with the right of the party to proceed with another.
Keeping in view that a default in the payment of a financial debt has occurred and has been acknowledged by the Corporate Debtor, and that the said application is not barred by limitation, the instant application under section 7 of the Code is complete in all respects.
Application admitted - moratorium declared.
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2022 (6) TMI 825
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - instant petition os filed after approval of Resolution Plan - HELD THAT:- The date of default mentioned by the Operational Creditor is 24 July 2013, and the instant petition was filed on 09 August 2019. It is to be noted that the Corporate Debtor had was admitted into CIRP vide order dated 20 April 2017 in Company Petition 150/2017. Subsequently, a resolution plan also been approved by this Adjudicating Authority vide order dated 17 October 2017. The Operational creditor had not filed any claim with the Resolution Professional after the Corporate Debtor was admitted into CIRP and has filed the instant petition after the approval of the resolution plan. The same indicates gross negligence on part of the Operational Creditor.
The judgment of the Hon'ble Supreme Court in Ghanashyam Mishra & Sons Pvt Ltd v Edelweiss Asset Reconstruction Company Ltd. [2021 (4) TMI 613 - SUPREME COURT] lays down that when the resolution plan is approved by the Adjudicating Authority, 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 and 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.
This Adjudicating Authority is satisfied that the right of the Operational Creditor to seek remedy under section 9 of the Code has been extinguished - Petition dismissed.
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2022 (6) TMI 824
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:- From perusal of the record it is noticeable that the only rebuttal raised by the Corporate Debtor is pertaining to the amount due and payable. The Operational Creditor states that the outstanding due is of Rs.25,77,322/- (inclusive of interest calculated @ 18% p.a. till 06 December, 2018) whereas, the Corporate Debtor in its reply (at page 71) has categorically admitted that the outstanding due is of Rs.6,09,299/- This acceptance by the Corporate Debtor ticks the check box of debt and default.
Further this instant application was filed on 02 April, 2019, hence, it falls within the threshold limit applicable then under the Code. As envisaged under section 9(3)(b) of the Code, an affidavit has been filed by the Operational Creditor and also, from the available record, it is evident that the Corporate Debtor had neither raised any dispute with respect to the services of the Operational Creditor. It is also pertinent to mention that no interest component has been mentioned in the invoices.
Application admitted - moratorium declared.
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2022 (6) TMI 823
Seeking direction to Respondent No.1 to assist the Applicant and take necessary steps in procuring Valid Factory License and Valid Fire NOC for the Corporate Debtor by making payments from the Sale Consideration received by the Applicant - seeking extinguishment of Property Tax/ Municipal Tax dues and Land Revenue Tax dues - HELD THAT:- While it is true that the facts of each case need to be seen on their own merit and preferably on a standalone basis, it is equally true that the main objective of the Code should not be lost sight of. In the instant case, the corporate debtor has been sold as a going concern and is well functioning , in that it is on its way to complete the projects left halfway by the previous management and is trying to turn the so called corporate debtor into a viable enterprise. Any past liabilities that are sought to be raised by R2 & R3 would burden the enterprise and may even push it back to the insolvency from which it has been successfully retracted by the Code.
The liquidator had followed the complete algorithm as enshrined in the Code for carrying out the liquidation process, which included public announcement for invitation for the claims. Despite that R2 & R3 have not cared to lodge their claim, if any, before the liquidator and have not taken any steps to approach this Adjudicating Authority in good time to make any representation in this regard and therefore now they are estopped from raising the claims at this date.
Application disposed off.
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2022 (6) TMI 783
Dishonor of Cheque - Validity of proceeding u/s 138 of NI act when CIRP proceedings has started and moratorium has been declared - applicability of moratorium to Directors or Corporate Debtors - HELD THAT:- It is relevant to note that Section 17 (b) of the Insolvency and Bankruptcy Code, 2016, makes it very clear that once interim resolution professional is appointed, the powers of the Board of Directors or the partners of the corporate debtor shall stand suspended and be exercised by the interim resolution professional - Similarly, Section 33 particularly, sub-clause (7) of Section 33 of the Code makes it very clear that when the order of liquidation is passed, it is deemed to be notice of discharge to the officers, employees and workmen of the corporate debtor, except when the business of the corporate debtor is continued during the liquidation process by the liquidator.
The above provisions makes it clear that the powers of the Board of Directors shall be suspended on the appointment of the Interim Resolution Professionals by the liquidator. But the question herein is whether the prosecution initiated against the company and directors maintainable in view of the above moratorium.
The Apex Court in a judgment reported in P. MOHANRAJ & ORS. VERSUS M/S. SHAH BROTHERS ISPAT PVT. LTD. [2021 (3) TMI 94 - SUPREME COURT] after dealing with various judgements of the Apex Court, it was held that for the period of moratorium, since no Section 138/141 proceeding can continue or be initiated against the corporate debtor because of a statutory bar, such proceedings can be initiated or continued against the persons mentioned in Section 141(1) and (2) of the Negotiable Instrument Act. This being the case, it is clear that the moratorium provision contained in Section 14 of the IBC would apply only to the corporate debtor, the natural persons mentioned in Section 141 continuing to be statutorily liable under Chapter XVII of the Negotiable Instruments Act.
In such a view of the matter, the petitioners being the directors of the company, have to be prosecuted as per the above judgment.
In such a view of the matter, when the petitioners themselves have admitted before this Court that the cheques were issued in the year 2016, merely because the different date is mentioned in the complaint, it is the matter of evidence. In such a view of the prosecution initiated by the respondent cannot be quashed - petition dismissed.
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2022 (6) TMI 782
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 case of the applicant precisely is that the corporate debtor had availed financial facility from the financial creditor, Remotebullion And Jewels Private Limited by way of loan agreement. The corporate debtor has agreed to repay the amount but the corporate debtor has defaulted in payment of the said loan. Therefore, as per part IV of the application it is claimed that a sum of Rs. 2,03,39,000/- is due and payable by the respondent company.
Needless to say, that an application under Section 7 of the Code is maintainable if the debt is proved to be due and there is default. In view of the Section 4 of the Code, the moment default is of Rupees one hundred lakhs or more, an application to trigger Corporate Insolvency Resolution Process under the Code is maintainable - The applicant clearly comes within the definition of Financial Creditor. The material placed on record as stated in the paras above further confirms that respondent has debt due and has committed default in repayment of the outstanding financial debt. On a 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 applicant 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. The default in repayment of the financial debt is not refuted by the Corporate Debtor - Application admitted - moratorium declared.
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2022 (6) TMI 781
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:- Admittedly, the Memorandum of Undertaking was executed between M/s. ABW Infrastructure Limited and the present Application and the respondent was in no way connected to the MOU. There is no evidence on record to show that the money in question was in fact paid to present respondent out of the said agreement.
Further, the provision in Section 4 of the Haryana Protection of Interest of Depositors in Financial Establishment Act, 2013 clearly stipulates that the District Magistrate is empowered to pass only an order of attachment and he cannot pass any order for recovery of the money. On perusal of orders passed by the District Magistrate which clearly shows that an order of attachment has been passed in terms of Section 4 of the Haryana Act.
The Applicant has failed to make out a case under Section 7 of IBC, 2016 - Application dismissed as not maintainable.
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2022 (6) TMI 780
Maintainability of application - 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:- It is pertinent to mention that the FIR relied upon by corporate debtor is against some boy working in the office of corporate debtor and no allegation is there in the FIR against the Operational Creditor. Hence, the said FIR does not have any evidentiary value in the present case. Firstly, the corporate debtor has raised the issue regarding limitation. It is seen from the records that the corporate debtor has issued the cheques and same dishonoured on 07.05.2018 and the present petition is filed on 09.01.2020. Therefore, the petition is filed well within the limitation. The Corporate Debtor has raised the objection regarding existence of pre-existing dispute. This Adjudicating Authority has to look whether there is pre-existing dispute actually exist or not.
The Corporate Debtor has relied upon the letter dated 16.04.2018. It is pertinent to discuss the content of the said letter dated 16.04.2018. On perusal of the said letter, it is clear that the said letter was not accompanied by any evidence. Furthermore, the corporate debtor did not follow-up with the operational creditor regarding the issue raised in the letter dated 16.04.2018. Rather on the other hand, corporate debtor has issued the cheques dated 25.04.2018 amounting to Rs. 1,96,30,000/- to discharge its liability - this Adjudicating Authority is of the opinion that such argument in not maintainable in the eyes of law as corporate debtor has failed to produce any satisfactory evidence to show the existence of pre-existing dispute. Hence, this tribunal is inclined to initiate the CIRP of Corporate Debtor as a result the Petition is admitted.
Application admitted - moratorium declared.
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2022 (6) TMI 779
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - time limitation - Service of demand notice - HELD THAT:- The service not received and publication has been done to that effect.
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 is set ex parte vide order dated 22.12.2021.
Whether this application is filed within limitation? - HELD THAT:- This application was filed on 15.11.2019 vide Diary No. 6358. Therefore, this Adjudicating Authority finds that this application was filed within limitation.
On going through the contents of the application filed in the Form 5, the same is found to be complete. There is a total unpaid operational debt (in default) of ₹ 8,83,275(Principal Amount). The operational creditor has supplied goods to the corporate debtor and raised invoices attached as Annexure A-4. Ledger accounts maintained by the operational creditor have been attached at Annexure A-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 abovementioned facts that the liability of the corporate debtor is undisputed. Accordingly, the petitioner proved the debt and the default, which is above threshold limit - all the aforesaid requirements have been satisfied. It is seen that the petition preferred by petitioner is complete in all respect. 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.
Petition admitted - moratorium declared.
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2022 (6) TMI 778
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repaymnet of its dues - Operational creditors - existence of debt and dispute or not - HELD THAT:- It has been shown that the Corporate Debtor has failed to make payment of the aforesaid amount due to date as mentioned in the statutory notice. It is also observed that the conditions under Section 9 of the Code stand satisfied. Hence, this Adjudicating Authority is inclined to commence CIRP against the Corporate Debtor as envisaged under IBC, 2016.
Application admitted - moratorium declared.
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2022 (6) TMI 777
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:- On perusal of the documents of the Operational Creditor, the two letters one by Operational Creditor to the Corporate Debtor written on 22nd December, 2017 and the reply thereto dated 30th December, 2017 are the main planks of the case and the third important document i.e. required to be considered is the agreement executed between the Corporate Debtor and ESAB India Limited along with a receipt and memo of consideration whereby a sum of Rs. 2,50,00,000/- has been transferred by the Corporate Debtor to the vendor/land owner ESAB India Limited vide cheque no. 050595 dated 9th March, 2017 (drawn on IDBI Bank). It is clear that once the Corporate Debtor has authorized the Operational Creditor and admittedly confirmed the letter dated 22nd December, 2017 sent by the Operational Creditor, vide letter dated 30th December, 2017 written by the Director of the Corporate Debtor and pursuant thereto admittedly entered into an agreement along with their receipt, duly executed by the land owner after accepting part payment of Rs.2,50,00,000/-, there is hardly anything left to be doubted.
The Operational Creditor has duly complied with all the procedural formalities in filing the petition and has filed affidavit under section 9(3)(b), the petition is complete in all respects.
Pre-existing dispute - HELD THAT:- Even though the Corporate Debtor has tried to convince this Adjudicating Authority as regards some pre-existing disputes and has raised certain frivolous grounds of defence but any of the grounds of defence taken by the Corporate Debtor, is not convincing.
Application admitted - moratorium declared.
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2022 (6) TMI 721
Direction for maintaining of ‘status quo’ in relation to the liquidation process of the Corporate Debtor - whether the Respondent violated Order of this Bench dated 20.07.2021 as alleged by the Applicant? - HELD THAT:- After filing the Contempt Application dated 02.08.2021 this Tribunal had afforded opportunity to the Respondent to file their Response to the Contempt Application and the Contempt Application has been heard both sides and reserve for Orders. This Tribunal extended the Interim Order dated 20th July, 2021 till 05.07.2022.
The Appeal filed by the Applicant on 14.07.2021 and this Tribunal passed Status Quo Order on 20th July, 2021 much later to handing over the possession of property and issuance of sale certificate to the auction purchaser on 03.06.2021. Moreover, the Applicant has not made the auction purchaser a party to the proceedings before this Tribunal. This Tribunal passed the status quo order on 20th July, 2021 and the Respondent/ Liquidator stated that he has implemented the Order of this Tribunal dated 20th July, 2021 with respect to Liquidation Process from the date of passing of status quo order - Further, it is sated that the Respondent/ Liquidator does not have possession or control over the disposed asset of the Corporate Debtor.
The Appeal has been filed much later to the sale certificate issued to the auction purchaser and the Applicant has not impleaded the auction purchaser as a party to the proceedings and the status quo order will not be applicable to the auction purchaser and this Tribunal cannot desist the auction purchaser from proceeding with the property which he is in possession in accordance with law, therefore, this Tribunal is of the view that the Respondent has not violated the order of this Tribunal dated 20th July, 2021 nor committed any contempt of this Tribunal - this Tribunal comes with a resultant and irrefutable conclusion that there is no disobedience of the Order of this Tribunal and the Contempt Application filed by the Applicant is frivolous and wasting the precious time of this Tribunal.
Contempt application dismissed.
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2022 (6) TMI 720
Initiation of CIRP - All the projects of Corporate Debtor (Real Estate developer i.e Supertech Ltd.) or specified project to be proceeded against - It was submited that, in event the construction of the projects are allowed to proceed as ongoing project, the promoters of the Corporate Debtor are willing to extend all cooperation to the IRP for carrying out the ongoing projects. It is submitted that CIRP need not to be allowed to continue for all the 20 projects rather it may be undertaken on projects basis
HELD THAT:- From the status report submitted by the IRP, it is clear that IRP in his Report has listed 20 projects of the Corporate Debtor which also included Eco Village II Project for which the finance was given by the Union Bank of India who has filed the Application under Section 7 of the Code for initiation of the CIRP. By the admission of the Application under Section 7 of the Code by the Adjudicating Authority, CIRP has commenced against the Corporate Debtor and when CIRP has commenced against the Corporate Debtor, all projects which had been undertaken and under construction comes under CIRP. As per the IRP Status Report, IRP has taken a stock of situation by visiting the sites which are under construction.
‘CIRP’ has been initiated against the Corporate Debtor. ‘CIRP’ has commenced against all the projects of the Corporate Debtor. ‘CIRP’ encompasses all the assets of the Corporate Debtor including all Bank Accounts. The IRP has already been appointed and has taken steps by informing all concerned including Banks to add the name of IRP for operation of the Account - the consequence of ‘CIRP’ is that all assets of the Corporate Debtor come in the control and management of the IRP. All bank accounts are to be operated with the counter signature of the IRP. No amount from any account can be withdrawn without the counter signature and permission of the IRP. IRP under the IBC has responsibility to run the Corporate Debtor as a going concern. Further when Promoters are ready to extend all cooperation with all its staffs and employees to the IRP, we see no reason for not to direct the IRP to proceed with construction of all the projects under the overall supervision and control of the IRP.
In ‘CIRP’ Process, Project-Wise Resolution to be started as a test to find out the success of such Resolution. Keeping an eye regarding construction and completion of the projects, it is opined that an Interim Order dated 12th April, 2022 staying the constitution of CoC be modified to the extent that CoC be constituted for the Eco Village II Project only with all Financial Creditors including Financial Creditors/Banks/Home Buyers.
The Interim Order dated 12th April, 2022 continuing as on date is modified to the extent that IRP may constitute the CoC with regard to the Project Eco Village II only - After constitution of CoC of Eco Village II Project, the IRP shall proceed to complete the construction of the project with the assistance of the ex-management, its employees and workmen - application disposed off.
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2022 (6) TMI 719
Liquidation of Corporate Debtor - Non-receipt of Expression of Interest by the Resolution Professional - publication of Form ‘G’ - HELD THAT:- Since, more than 1000 days has expired from the commencement of CIRP, no Expression of Interest was received and the 180 days CIRP period has expired, the CoC at its 22nd meeting Annexed at pages 48 to 49 of the application held on 18/05/2022 had recommended liquidation of the Corporate Debtor with 100% voting shares - The Resolution Professional has not consented to act as a Liquidator of the Corporate Debtor.
Section 33(1)(a) of the Code mandates that the Adjudicating Authority shall pass an order of liquidation where no resolution plan is received before the expiry of the CIRP. Sub-section (2) thereof requires the Adjudicating Authority to pass the liquidation order where the Resolution Professional intimates to the Adjudicating Authority the decision of the Committee of Creditors approved by not less than 66% of the voting share to liquidate the Corporate Debtor - Reading these two provisions together, this Adjudicating Authority is left with no option but to order liquidation of the Corporate Debtor.
The Corporate Debtor is ordered to be liquidated in terms of section 33(2) of the Code read with subsection (1) - Application allowed.
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2022 (6) TMI 718
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Personal Guarantors to Corporate Debtors - existence of debt and dispute or not - Invocation of Section 95 of the IBC, 2016 - HELD THAT:- The instant Petition is liable to be admitted under section 100 of IBC, 2016.
The application filed under Section 95 of IBC, 2016 is hereby admitted under Section 100 of the IBC, 2016. The Insolvency Resolution Process is initiated against the Respondent/Personal Guarantor and moratorium is declared in place of interim moratorium, which begins with the date of admission of the application and shall cease to have effect at the end of the period of 180 days, as provided under Sec 101 of IBC, 2016.
Petition admitted - moratorium declared.
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2022 (6) TMI 717
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - Doctrine of Merger - merger of order of NCLAT, where there was a specific direction to this Adjudicating Authority to admit the application and pass consequential orders, with Supreme Court order - HELD THAT:- Hon'ble NCLAT in its order dated 02.12.2021 in the last para specifically directed the Adjudicating Authority to pass consequential orders within one month from the date on which copy of this order is produced before the Adjudicating Authority, and further mentioned that during this period, it is open to the parties to endeavour to enter into settlement - as per the Doctrine of Merger, order of Hon'ble NCLAT merged into the order of Hon'ble Supreme Court on 05.05.2022 and one month period mentioned in the order of Hon'ble NCLAT giving liberty to the parties to enter into settlement be considered from 06.05.2022.
In compliance of the order dated 02.12.2021 passed by the Hon'ble NCLAT which is merged in the order passed by Hon'ble Supreme Court dated 05.05.2022, this application is admitted and moratorium as described under Section 14 of IBC, 2016 is triggered from the date of this order.
Application admitted - moratorium declared.
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2022 (6) TMI 716
Seeking extinguishment of claim of the respondent corporation as envisioned under Clause 6 of the resolution plan - demand raised after approval of Resolution Plan - Section 60(5) read with Section 32A of the IBC, 2016 - HELD THAT:- In the present case, there was a defect in the title of the land itself and this issue has now been resolved after prolonged litigation. This fact was not a subject matter of discussion during the CIRP proceedings. The extra payment of compensation will only remedy the defect in the title to the land and PSIEC can cancel the lease as per the terms and conditions of the original allotment letter. The applicant has claimed that the demand notice can’t be sustained in view of the provisions of Section 31 of the I&B Code.
The additional payment made in the demand notice is a payment towards removing the defect in the title to the land and is not linked to the CIRP. The approved Resolution Plan cannot preclude the control that PSIEC has under law to deal with its properties and the plot in question which is undeniably a public property - this Bench is of the opinion that the enhanced land compensation is a payment towards rectifying the defect in the title to the property and is not “statutory dues” within the meaning of the provisions of Section 31 of the I&B Code - the impugned demand notice issued by the Respondent Corporation is rejected.
Seeking release of attached and detained goods - seeking extinguishment of claim of the respondent as envisioned under Clause 6 of the resolution plan - HELD THAT:- It is apparent that at the time of initiation of CIRP, the interest amounting to Rs.29,85,928/- stood as the liability of the applicant company towards payment of interest in view of the CESTAT order. The goods lying in the safe custody were only to secure the payment of the outstanding dues subject to the final orders of the Hon’ble High Court of Himachal Pradesh. As per the provisions of the Insolvency and Bankruptcy Code, 2016, it was the duty of the Commissionerate of Central Excise to lodge its claim before the IRP in response to as per Regulation 7 dealing with claims by operational creditors as no claim was filed during the CIRP proceedings. There is no evidence on record to suggest that any such claim was lodged. It is also noted that the alleged offenses were committed prior to the initiation of the CIRP proceedings, the provisions of Section 32A will be squarely applicable to the present case.
The impugned attachment and detention orders issued by the respondent is allowed, and the respondent is directed to release the attached and detained goods and any claim of the respondent against the applicant on the issues discussed is ordered to be extinguished - Application allowed.
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2022 (6) TMI 715
Validity of proposed private sale conducted by the liquidator - mode of sale - HELD THAT:- From the facts of the case in hand, it is observed that the applicant-Ex Promoters have not participated in the auctions on 28.08.2019, 27.09.2019, 18.10.2019 and 21.09.2020. It is also observed that the applicant has failed to submit any bid for the auction dated 27.01.2021 in compliance with the direction of this Tribunal dated 25.01.2021. These responses or these lack of responses from the applicants cast serious doubt over their actual intention with regard to the bidding of the corporate debtor. Their subsequent offer of approximately Rs.80 Crores falls way below the reserve price of the last failed auction on 27.01.2021 at Rs.96.02 Crores - The applicant has failed to make out a case that there has been any infringement of these Sections and Regulations on the part of the Liquidator - Application dismissed.
Seeking directions to be issued to liquidator for the sale of corporate debtor as a going concern and to consider the bid of the applicant - HELD THAT:- The applicant’s plea that a different approach should be adopted for MSME is also not tenable as the applicants are clearly hit by the provisions of Section 29-A of the Code. In any case, the period for issuing any direction to the Liquidator to sell the corporate debtor as a going concern is over as private sale has already taken place in compliance with the provisions of the relevant Sections of the Code and in the related Regulations made thereunder. No case has been made out by the applicants-Ex-Promoters that there has been any violation of the provisions of the Code in the private sale effected by the Liquidator - Application dismissed.
Seeking to issue necessary direction to the Liquidator to sell the Corporate Debtor i.e. M/s Supreme Tex Mart Limited (STML) as a going concern in liquidation - HELD THAT:- As clarified in the order pertaining to the earlier two IA Nos.227/2021 and IA No.228/2021, private sale has already taken place in the present case in compliance with the provisions of the relevant provisions of the Code and Regulations made thereunder. It is also seen from the records that the Liquidator has made adequate efforts and attempts to sell the corporate debtor as a going concern through open public auction. No case has been made out in the present application that there has been any short-coming on the part of the Liquidator in this regard - there is no merits in the application and the same is dismissed.
Seeking to constitute a Consultation Committee of stakeholders as required under Regulation 31-A of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 - seeking restraint on Liquidator from taking any decision with regard to sale of liquidation of estate of the corporate debtor - HELD THAT:- The Insolvency and Bankruptcy Board of India, in exercise of the powers conferred by Clause (t) of sub-Section (1) of Section 196 read with Section 240 of the Insolvency and Bankruptcy Code, 2016 (31 of 2016) has introduced Regulation 31A in the Liquidation Process Regulation, 2016. It is also noted that there is no mention of the retrospective application of the provisions in the relevant notification. It is also settled law that all laws are presumed to be prospective unless the Legislature unequivocally expresses its intent for the operation of such provisions retrospectively - Though, in the present case, there is a change in the present Liquidator who was was appointed w.e.f. 01.11.2019, i.e. after the introduction of Regulation 31-A of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 in the statute book, but the applicability of provisions relates to the date of liquidation order and not to the date of appointment of the new Liquidator. Furthermore, it is noted that the liquidation process is a time-bound process and any delay caused by introduction of new procedure would result in huge depreciation of the assets under liquidation leading to a lesser recovery of public money owed to the Public Sector Banks. Any such interpretation resulting in delay will be against the objectives of the Code.
Regulation 31A of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 is not with retrospective effect - Application dismissed.
Seeking issuance of appropriate directions to the Liquidator to immediately constitute Consultation Committee of stakeholders as required under Regulation 31A of the IBBI (Liquidation Process) Regulations, 2016 - HELD THAT:- The provisions of Regulation 31A of the IBBI (Liquidation Process) Regulations, 2016 are not with retrospective effect. Thus in the present case, Stakeholder Consultation Committee (SCC) cannot be allowed to be constituted - Application dismissed.
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2022 (6) TMI 678
Seeking recovery of the dues of the Corporate Debtor from the respondents - dues pertain to the period prior to the initiation of CIR process of the Corporate Debtor - Section 60(5) of IBC, 2016 read with Rule 11 of the NCLT Rules, 2016 - adjudicating authority, appropriate forum for recovery of dues or not - HELD THAT:- If any dues have to be claimed by the Corporate Debtor through its RP or Liquidator, the same can only be claimed under Section 43, 45, 66 of IBC, 2016 - since there is no averment made in the application that the transaction mentioned in the application are either preferential, undervalued or fraudulent, the question of exercising our jurisdiction does not arise.
The Liquidator is eligible to file Civil Suit by taking due permission of this Adjudicating Authority in terms of Section 33(5) of IBC, 2016.
From the conjoint reading of Section 63 of IBC, 2016 and proviso under Section 33(5) of IBC, 2016, it can be inferred that if a Liquidator is eligible or required to institute a suit or other legal proceeding on behalf of the corporate debtor, it can do so with prior approval of this Adjudicating Authority - further, the Adjudicating Authority is not a substitute to a Court of recovery therefore, this is not the appropriate forum to adjudicate such transactions.
Application dismissed as being not maintainable.
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