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Insolvency and Bankruptcy - Case Laws
Showing 81 to 100 of 160 Records
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2022 (6) TMI 623
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- It is undisputed fact that the Corporate Debtor has borrowed the funds from Respondent No.1 and the amounts claimed to be in default is approx. Rs. 216.95 Crore - Security held and certificate of registration of charges issued by Registrar of Companies is also not in dispute.
At any point of time some acknowledgment of accepting its liability by Corporate Debtor exists & that too within stipulated time period of three years (Article 137 of the Limitation Act, 1963). Hence, Section 18 of the Limitation Act, 1963 provides for a fresh period of limitation shall be computed from the time when the acknowledgment was so signed and hence the stand of the Appellant does not seem to be correct - Now, it is a settled law by the Hon’ble Apex Court that the Code does not exclude the Application of Section 14 or Section 18 or any other provisions of Limitation Act. Hence, it can be firmly said that the provisions of Section 18 of the Limitation Act, 1963 are applicable to the proceedings under the Code and hence, the impugned order deserves to be upheld.
Appeal dismissed.
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2022 (6) TMI 622
Jurisdiction - power/authority of Respondent No.1/Resolution Professional (RP) to freeze Bank Accounts - HELD THAT:- On going through the impugned order passed by the ‘Adjudicating Authority’ (National Company Law Tribunal) Division Bench-II, Chennai, it is clear that the ‘Adjudicating Authority’ had not addressed the legal aspect(s) of the matter that whether the Respondent No.1 / Resolution Professional had any authority in Law to freeze Bank Account belonging to the Appellant.
Since that aspect of the matter was not addressed by the ‘Adjudicating Authority’ and the same is conspicuously absent at the time of passing of the impugned order, this ‘Tribunal’, is constrained to interfere with the said order, and sets aside the same because of the fact that the Respondent No.1 / Resolution Professional, in Law has only ‘An Authority’ to exercise control over Bank Accounts operated by the ‘Corporate Debtor’ and not otherwise.
Appeal allowed.
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2022 (6) TMI 620
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 Petition under section 7 of the Code is barred by limitation or not? - HELD THAT:- It is apparent that transaction between the parties was purely financial in nature and from time to time the terms and conditions were also revised. Further, the balance sheet of the Corporate Debtor for the Financial Year 2018 -2019 reflects that there are admitted dues of the Financial Creditor, which are duly acknowledged by the Corporate Debtor - there has been continuous acknowledgement by the Corporate Debtor, which would extend the limitation period from time to time.
From the records produced before the Adjudicating Authority, it is clear that there is a debt due and payable by the Financial Creditor to the Corporate Debtor and there is a default on the part of the Corporate Debtor - It is also apparent that there is an admission of debt by the Corporate Debtor through various documents as indicated herein.
The present petition filed by the Financial Creditor is complete in all respects as required by law. The Petition establishes that the Corporate Debtor is in default of a debt due and payable and that the default is more than the minimum amount stipulated under section 4 (1) of the Code, stipulated at the relevant point of time - Petition admitted - moratorium declared.
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2022 (6) TMI 619
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- It is the contention of the Corporate Debtor’s that there is no written contract regarding any loan being sanctioned to the Corporate Debtor by the Financial Creditors. In this regard, reliance placed on the stand taken by the NCLAT in NARENDRA KUMAR AGARWAL, SUMAN AGARWAL VERSUS MONOTRONE LEASING PRIVATE LIMITED, BIMAL KANTI CHOWDHRY IRP [2021 (1) TMI 717 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] wherein it was held that the written contract cannot be treated as an essential element or prerequisite to prove the existence of Financial Debt.
The Financial Creditor has failed to bring on record any other evidence in the form of a loan agreement, promissory note, contract or any document to substantiate its claim that there was a financial debt and a default of the same. The Financial Creditor has produced the Corporate Debtor’s Annual reports for the Financial Years 2016-17 and 2017-18. However, the same do not reflect any debt due specifically to the Financial Creditor - the Financial Creditor has placed reliance on its bank statements and confirmation of accounts of the Corporate Debtor that reflect transactions between the parties. However, in absence of any written document indicating the purpose of the said transactions, it cannot be assumed to have been towards a loan as claimed by the Financial Creditor.
While a written contract cannot be treated as a pre-requisite to proving the existence of financial debt, the Adjudicating Authority must be satisfied that the Corporate Debtor is not being dragged into Corporate Insolvency Resolution Process mala fide for any purpose other than the resolution of the Insolvency. In the present matter, there is no evidence to Allow or Admit present Application - Petition dismissed.
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2022 (6) TMI 618
Seeking Liquidation of Corporate Debtor - violation of the Resolution Plan - HELD THAT:- On perusal of the record, it is seen that the successful Resolution Applicant has implemented half of the plan and according to the Respondents, payments have been made to the other creditors - the Respondents have given One Time Settlement offers to the Applicant, but the Applicant has refused to accept the same and has also refunded the amount given as guarantee.
The conduct of the successful Resolution Applicant does reflect poorly on the successful Resolution Applicant and whether the successful Resolution Applicant should be given an opportunity to make the payments as resolved under the Resolution Plan is a very doubtful question.
In the interest of the integrity of the process of resolution with an ultimate aim to allow the enterprise once again to stand on its feet, all the stakeholders should strive towards reviving the Corporate Debtor and avoid the liquidation to the extent possible.Hence, the successful Resolution Applicant is directed to pay the balance amount to the Applicant, as agreed in the Resolution Plan within two months from the date of this order, failing which an appropriate course of action shall be followed keeping the tenets of the code in right earnest - application allowed.
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2022 (6) TMI 590
Imposition of travel ban on the petitioner - violation of Article 21 of the Constitution - contention of the petitioner was that as the entire loan amount was covered under the resolution plan, the petitioner was in no manner connected with the company - HELD THAT:- As per the Office Memorandum dt. 12.10.2018, the conspectus of the issuance of the LOC was broadened to include the economic offenders hampering the interests of India and as such, a lookout circular can be issued in larger public interest. As the respondent Bank initiated recovery proceedings against the petitioner and if lookout circular is lifted and if the petitioner disappears, the recovery proceedings would be brought to standstill and recovery of crores of public money would become impossible. Hence, it is considered fit to dismiss the petition.
Writ petition dismissed.
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2022 (6) TMI 589
Seeking release of attachment made on scheduled mentioned property - seeking restriction from taking any further act of recovery proceedings against the Schedule mentioned Property purchased by the Applicant - seeking restraint from causing any hurdle for the functioning of the factory at the schedule mentioned property - seeking direction to 1st respondent to handover the Schedule mentioned property encumbrance free to the Applicant - HELD THAT:- It can be seen from the letters dated 24.12.2020 and 10.02.2021, exchanged between the 5th and 6th Respondents in IA/1005/2021, that the claim raised in the de facto attachment was occurred in the period between July 2011 and March 2014. Whereas, the Corporate Debtor was admitted into CIRP on 01.09.2017, in furtherance to that Liquidation was ordered on 16.07.2018, the paper publication regarding Liquidation of the Corporate Debtor was published on 18.07.2018, it is pertinent to note that no claim has been submitted by the Respondents 2 to 5 in IA/1005/2021, before the Resolution Professional or the Liquidator during the CIRP and the Liquidation process.
This Adjudicating Authority is of the considered opinion that the Sub Registrar of Uthumalai's demand of No Objection Certificate from the Tahsildar, Veerakeralampudur for registering the sale deed dated 12.02.2021 entered into between Sri Gomathi Energy (P) Ltd. and the Liquidator of the Corporate Debtor, reasoning alleged de facto attachment made on the Property is unjustifiable at this stage of Liquidation. Moreover, the Property sold to the Sri Gomathi Energy (P) Ltd. was in accordance with the provisions of the Insolvency and Bankruptcy Code, 2016.
The Sub Registrar, Uthumalai is directed to register the sale deed dated 12.02.2021 entered between Sri Gomathi Energy (P) Ltd. and the Liquidator of the Corporate Debtor - the liability in respect of the Property is not extinguished - Application disposed off.
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2022 (6) TMI 588
Dissolution of Committee of Creditors consisting of the Respondent No. 1, who is a related party - Validity of initiated CIRP proceedings - removal of Respondent No. 2 from the position of RP - imposition of cost for fraudulent and malicious on Respondent No. 1 and Respondent No. 2 as per the provisions of Section 65 and 70(2) - whether 1st Respondent is a related party to the Corporate Debtor? - HELD THAT:- The 1st Respondent, sole member of the CoC of the Corporate Debtor and Ms. Deepthi Vinod Bansal, who is 49% shareholder of the Corporate Debtor were uncle and niece. Thus, 1st Respondent and sole member of the CoC of the Corporate Debtor fall under the expression of 'related party of the corporate debtor' in 1st proviso of Section 21(2) and the 1st Respondent herein is prevented to be a part of the CoC.
Whether the Resolution Professional has done his due diligence in constituting the CoC? - HELD THAT:- It is the duty of the Resolution Professional to collect and peruse the information regarding Corporate Debtor and claimants before constituting CoC - Clause 6 and 7 of the declaration part of the form clearly require the declaration from the Financial Creditor who submitted the claim before RP that it is not covered under section 5(24) and it is the due diligence of the RP to confirm the said declaration.
The CoC is constituted with the Financial Creditor who is a related party to the Corporate Debtor and the survival of the said CoC is restricted by the express provision of the code. In addition, it appears that there is negligence on the part of Resolution Professional in identifying the related party in the CoC.
The 2nd Respondent, Resolution Professional of the Corporate Debtor is hereby directed to remove the 1st Respondent herein from the Committee of Creditors (CoC) of the Corporate Debtor viz. Mega Foods Products Madras Pvt. Ltd. as the 1st Respondent is related party to the Corporate Debtor - Application allowed in part.
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2022 (6) TMI 557
Maintainability of application - initiation of CIRP - personal guarantors of the Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of its debt and dispute or not - HELD THAT:- It can be seen that the deeds of guarantee dated 25.02.2013 and 12.10.2015, have been executed between the Applicant and Nathella Sampath Chetty & Co., Respondent herein who is a partnership firm.
It is clear that the Respondent who is a guarantor of the Corporate Debtor is a partnership firm and this application is not under the purview of this Adjudicating Authority. Further, the provisions relating to partnership firm is yet to come into force. Hence, the present is application filed by the Applicant is misconceived.
The application stands dismissed.
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2022 (6) TMI 544
Recovery of outstanding amounts - NPA - Forum Shopping - Section 13(2) of the SARFAESI Act, 2002 - HELD THAT:- It is undisputed fact that the impugned order of Adjudicating Authority dated 04.10.2019 was passed ex parte - This Tribunal has observed that loan facility has been granted to the Trust which is engaged in Educational Services @25% p.a by the R1/Bank which itself seems to be very high. It is difficult to predict about the bargaining power of the Trust/CD with the banks to borrow at such a high rate of interest.
Although, not much details are provided but as it looks that sanctioned amount is Rs. 3 Crore to M/s. Camellia Educare Services Ltd., and Rs. 8.5 Crore each to M/s. Multiple Educational and Manpower Development Trust and Camellia Educare Trust sanctioned in the year 2012 for the furtherance of the objective of the trust for Development of Education Services and the Corporate Guarantee Agreement was executed apart from offering its properties in mortgage for Rs. 20.80 Crore - It is also evident from the pleadings that the Corporate Debtor/Guarantor has executed a ‘Corporate Guarantee Agreement’, in lieu of the said loans apart from offering its property in mortgage.
It is also observed that the R1/Bank also issued ‘demand notice’ on 29.12.2016 under the provisions of SARFAESI Act, 2002 to the Appellant demanding further Rs. 14 Crore from the Appellant being the Corporate Guarantor. It is also observed from the pleadings that the Appellant has given reply of the said ‘demand notice’ as per provisions laid in SARFAESI Act, 2002 vide their letter dated 13.02.2017 denying and disputing the said ‘demand notice’ and the quantum. It has also been mentioned in the pleadings that the borrower was continuously making payment inspite of receiving ‘demand notice’ under the relevant provisions of SARFAESI Act, 2002. As per the pleadings, it is also mentioned that the ‘original borrower’ has paid an amount of Rs. 92 lakhs during the time of pendency of the said application.
It is a settled law that the practice of Forum Shopping be condemned as it is an abuse of law. This case is beyond doubt falls under the category of Forum Shopping as it is a classic example of Forum Shopping when the Respondent Bank has approached one Court for relief but does not get the desired relief and then approached another court for the same or similar relief.
It is deemed fit and proper to remand back the matter to the Adjudicating Authority to give a patience hearing also to the Appellant and the Respondents including the RP and then to decide the matter considering the fact of the case as well as the provisions of applicable laws on the issue and then to finally pass appropriate order in accordance with law - appeal allowed by way of remand.
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2022 (6) TMI 543
Violation of principles of natural justice - suppression of material facts - Suspension of initiation of Corporate Insolvency Resolution Process - time limitation - Section 10A of the IBC, 2016 - HELD THAT:- The parties both the Financial Creditors/Respondent No. 1 and Corporate Debtor/Appellant is not denying that an OTS was not sanctioned on 28.01.2019 and the same was rescinded by the Bank on 17.06.2019. The Corporate Debtor failed to pay balance Rs. 83.18 Crore out of OTS sanctioned of Rs. 93.18 Crore and hence only Rs. 10 Crore was paid by the Corporate Debtor/ Appellant to the Bank - What it is observed that the Respondent No.1/Bank sanctioned 2nd OTS on 13.03.2020 for an amount of Rs. 40 Crore and out of which only Rs. 4 crore was paid by the Corporate Debtor/Appellant to the Respondent No.1/Bank.
It is very much clear that the debt is neither barred by the limitation nor it is barred by the provision of Section 10(A) of the IBC, 2016 as the bank has filed the petition on 13.08.2019.
The record also revealed that the Respondent No.1/CBI/FC has filed the Petition for initiation of CIRP originally on 22.10.2018 but before the admission of the said application, the Corporate Debtor has approached the Respondent No.1/Bank for settlement of their dues and accordingly, the compromise proposal submitted by the Corporate Debtor/Appellant was accepted by the Applicant Bank vide sanction letter dated 28.01.2019 - OTS is a mechanism available with the banks for years together to allow survival of Debtors and maintain cash flow for banks. However, repeated failure reflects either the intention of the Corporate Debtor/Appellant is not fair as in every OTS the settlement amount is going down and thereby reflecting that delay in CIRP will make the organization weaker and the object of the code for maximization of the value of assets of such persons shall not happen.
The are no infirmity in the impugned order and the order deserves to be sustained - Appeal fails and is dismissed.
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2022 (6) TMI 542
Levy of Interest - quantification of interest from the date it became due and payable as per the Resolution Plan or not - seeking direction to Respondent to take immediate steps and expedite removal of all attachments, liens, charges, encumbrances etc. from the assets of the Corporate Debtor - fastening the liability to remove the attachment, lien, charge, encumbrance etc. over the assets of the Corporate Debtor upon the Appellant - permission to Appellant to make payment of the balance amount under the Resolution Plan within a period of 2 months from lifting/removing all the attachment, charges, encumbrances and lien from the assets of the Corporate Debtor - taking urgent steps to get all attachment, charges, encumbrances, lien on the assets of the Corporate Debtor lifted and removed expeditiously - HELD THAT:- CIRP shall mandatorily be completed within a period of 330 days from the insolvency commencement date. Including the extension of CIRP Period and time taken in legal proceedings - Liability for prior offences etc. particularly removing/lifting attachments/liens/charges/encumbrances existing prior to CIRP needs to be dealt with in accordance with the provisions of Section 32(A) of the Code.
It is very much clear that the Resolution Applicant has got the Corporate Debtor in less than 10% of the value of the admitted claim practically 90% is the waiver. However, this issue cannot be reckoned now but it can have a leverage impact on levy of interest @ 12% p.a. for delay in releasing the balance payment. The interest is to be paid for the period from 27.01.2020 to 15.11.2021. As it looks from the Written Submissions of the SBI submitted to the Registry of this tribunal vide diary no. 33701 dated 21.02.2022. This period also comprises the period resulting from global pandemic covid-19 - Since the Successful Resolution Applicant/Appellant has paid the full amount so now there is no question of going back and hence, perhaps this is the area where the question involved is now as far as whether the interest rate be reduced to be made at par of RBI base rate for lending to banks with additional 2% margin subject to a limit of 12% p.a. or otherwise.
The Resolution Professional and the representative of the CoC who are the Chairman/Members of the Monitoring Committee should assist the Resolution Applicant in sorting out the issues pending at various forums be it Excise Authority, Enforcement Directorate etc. As reflected by the Appellant and at the same time the Resolution Applicant will have to bear certain interest burden which should be the rate of interest of RBI Base rate for lending to banks + 2% margin as per the rate of interest applicable between 27.01.2020 to 15.11.2021 subject to a limit of 12% p.a.
The Appeal is partially allowed.
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2022 (6) TMI 541
Violation of principles of natural justice - tangible / substantial reasons were assigned by the Tribunal or not - homo sapien - HELD THAT:- No wonder, an impugned order, bereft of reasons, may be a valid one from the point of view of an Authority / Tribunal, who had passed the same but to the affected, the same is not a valid one, as it infringes the right, thereby causing hardship and prejudice to him - the principles of Natural Justice are not the edicts of a Statute. It is to be remembered that absence of furnishing reasons will give an individual a sense of feeling of injustice, whether it be an Administrative/ Judicial / Quasi-Judicial Forum which passes it as opined by this Tribunal.
The Respondent Company shall not conduct statutory meeting etc., were passed by the Tribunal in a non-speaking manner and without assigning qualitative and quantitative reasons - the matter is remitted to the National Company Law Tribunal, Division Bench II, Chennai to pass a de novo orders in so far as it relates to the aspect of appointing an independent forensic auditor to conduct the forensic audit on the affairs of the 1st Respondent Company from 01.02.2018 and for issuance of directions in regard to the conduct of statutory meeting, by providing adequate opportunities to both sides to argue the matter and after Hearing the parties, the Tribunal (National Company Law Tribunal, Division Bench II, Chennai), also following the Principles of Natural Justice, is to assign reasons for arriving at its just fair conclusion in granting the reliefs or otherwise in the subject matter in issue.
Application closed.
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2022 (6) TMI 501
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:- It is very much clear from the email dated 16.01.2018 and other emails exchanged between the parties that there existed a preexisting dispute between the parties. The Corporate Debtor had also claimed an amount form the Operational Creditor for bad quality of goods and also with regard to rate difference of the goods. It is also pertinent to note that the email dated 16.01.2018 of the Corporate Debtor is well before the issuance of the Demand Notice. The Corporate Debtor has also claimed certain amount from the Operational Creditor towards damages as mentioned in the email dated 16.01.2018. The defense of the Corporate Debtor is not spurious to escape the liability from payment but also requires investigation.
As per the settled law laid down by the Hon’ble Apex Court in Mobilox Innovations Private Limited V/s Kirusa Software Private Limited, [2017 (9) TMI 1270 - SUPREME COURT] the Adjudicating Authority is to see at this stage whether there is plausible contention which requires further investigation and that the dispute is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is thus important to separate the grain from the chaff and to reject a spurious defence which is mere bluster. However, in doing so the Court does not need to be satisfied that the defence is likely to succeed - So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the Adjudicating Authority has to reject the Application.
There is no merit in the Company Petition and the same deserves to be dismissed.
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2022 (6) TMI 500
Maintainability of Interlocutory Application - joint/several liability of Respondents to pay the amount claimed in this application - fraudulent/wrongful trading - Section 66 of IBC, 2016 - HELD THAT:- The technical objection regarding the maintainability of this application is raised only for the sake of objecting and hence stands rejected. This application is thus maintainable.
Joint/several liability of respondent - HELD THAT:- From the Forensic Audit it is clear that this is a fit case to direct the Respondents to make good the losses caused to the creditors of the Corporate Debtor as the transactions referred to in the earlier paragraphs are fraudulent transactions, holding that the Respondents are personally liable for such deliberate and wilful default. The Respondents 1 to 6 are jointly and severally responsible to pay Rs. 2,94,77,269/- with interest @ 12% per annum to the account of the Resolution Professional of the Corporate Debtor within two weeks from the date of receipt of this order.
Application disposed off.
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2022 (6) TMI 499
Seeking release of Statutory electronic and physical Books of Accounts of the Applicants 1-3 to enable them to file their Income Tax and Goods and Service Tax Returns and other statutory filings with the respective departments - seeking release of 8 generators (which includes engine, alternator, and an enclosure), 2 Alternators and its Electrical panels purchased by the 3rd Applicant from 3rd party vendors, subject to submission of Form G and such other conditions - seeking release of generators and motors that belong to Bharat Sanchar Nigam Limited (BSNL), Fertilizers and Chemicals Travancore Ltd (FACT) and the Kerala Minerals and Metals Ltd. (KMML) who are the customers of the 2nd applicant which were brought to the factory for carrying out certain repairs, subject to submission of Form G - seeking release of Mobile Phone of the General Manager - seeking release of John Deere spare parts imported by the 1st Applicant.
Whether the reliefs sought for in this application can be granted by this Tribunal? - HELD THAT:- This application has been filed by (i) Cornier Private Limited (ii) Cornier Power Systems Pvt. Ltd and (iii) M/s Whispower Sales & Services Pvt.Limited. According to the constitution of applicants herein and the Corporate Debtor, it shows that in the Corporate Debtor Mr.Thomas George and Asha Mary Thomas have 49% shareholding, in 3rd applicant Whispower Generator Sales and Services (P) Ltd. the above persons have 100% shareholding, in 2nd applicant Cornier Power Systems Pvt. Ltd the above persons have 100% shareholding and in 1st applicant cornier Private Limited, the son of Mr.Thomas George and Daughter in Law of Thomas George has 100% shareholding. From the above, it is clear that they are related parties to the Corporate Debtor.
This application has been filed by the applicants in order to flout the directions contained the above order. Since the Corporate Debtor’s suspended Directors Mr. Thomas George and Mrs. Asha Mary Tomas are having 100% shares in the 2nd and 3rd applicant companies and their son and daughter in law having 100% share in the 1st applicant company, they are estopped from raising such a claim that they want to get the reliefs sought in this application. Strictly speaking the properties mentioned in his application has been admittedly purchased by the 3rd applicant, which is a related party to the Corporate Debtor as per Section 5(24A) of the IBC, 2016 and that the 3rd applicant did not raise such claims over these properties by failing an objection to the Section 66 application while it was adjudicated - Since no third party came forward with such a request and the that the applicants are related parties to the Corporate Debtor, the Liquidator need not release such properties, as those properties are of the Corporate Debtor and the Liquidator have full control over them.
Since these applicants are related parties of the Cooperate Debtor, they are approaching with this application raising the issue that the generator and motors belong to BSNL, FACT, and KMML and they are the customers of the 2nd applicant and they brought it for repairs - there are no reason to interfere in the matter and grant any relief to the applicants - application dismissed.
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2022 (6) TMI 498
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Personal Guarantors of the Corporate Debtor - amicable settlement arrived at between parties for repayment - HELD THAT:- This is a fit case for admission and proceed against the Personal Guarantors/ Respondents and initiate Corporate Insolvency Resolution Process. It is also seen from the report of Resolution Professional that he has not recommended for negotiation between the parties for arriving at an amicable settlement for repayment.
Invoking Section 100 of IBC, 2016, the petition filed under the provisions of Section 95 of IBC, 2016 is admitted and the Insolvency Resolution Process against the Respondents/Personal Guarantors is initiated and moratorium in relation to all the debts is declared, from today i.e. date of admission of the application and shall cease to have effect at the end of the period of 180 days, or this Tribunal passes the order on the repayment plan under Section 114, whichever is earlier, as provided under Sec 101 of IBC, 2016 - application allowed.
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2022 (6) TMI 497
Validity of Auction Sale - decrease in the value of property - commencement of amount of auction sale - HELD THAT:- On 25.09.2020 when the auction commenced the auction was attended by four persons by Mr. G. Subramanian and Mr. S. Ramalingam also participated. The upset price was reset with the level of Rs. 1,06,55,550/-. It is noteworthy that this upset price of Rs. 1,06,55,550/- is the same upset price on which the auction commenced on 23.09.2020.
On perusal of the facts placed, it appears that the auction was not conducted in a transparent manner - Ld. Liquidator could have very well sold the property to the second highest bidder Mr. G. Subramanian for Rs. 1,55,55,550/- at his bid placed at 11:56 AM as per the auction record - No fresh e-auction notice was published by the Liquidator for holding e-auction on 25.09.2020. As late as 24.09.2020 the Liquidator was not clear what he is going to do which is apparent from the email written by the Liquidator to the Financial creditor - From the record of auction placed before us it is clear that the Liquidator allowed Mr. S. Ramalingam, the person who placed a wrong bid on 23.09.2020 and whose EMD the Liquidator had forfeited to participate in the auction held on 25.09.2020.
The entire episode smacks of wrongdoings and mala fide on the conduct of the Liquidator in conducting the two auctions on 23.09.2020 and 25.09.2020 - The auction held on 25.09.2020 is hereby set aside.
Attachment of property - HELD THAT:- The 1st Respondent has attached the property of the Corporate Debtor vide letter dated 03.02.2016 for the sales tax dues of Rs. 2,11,57,636/- pertaining to the Financial Years 2007-08 to 2014-15. The CIRP in respect of the Corporate Debtor was initiated on 03.12.2018. Thus, it could be seen that the attachment of the property of the Corporate Debtor by the 1st Respondent was made prior to CIRP period. Hence, the prayer of the Liquidator seeking removal of attachment on the property is not maintainable - Application dismissed.
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2022 (6) TMI 496
CIRP - resolution plan - claim of priority over other creditors - PF and allied dues, including interest of the employees - Rejection of revised claim - seeking direction to Respondents to pay off the revised claim of the Applicant on first priority from and out of the liquidation assets/estate of the Respondents - HELD THAT:- Any penal damages and interest levied by the PF Authorities under Section 14B & 7Q of the EPF & Miscellaneous Act, 1952 would form part of "any amount due" under Section 11(2) of EPF & Miscellaneous Act, 1952. Under the said circumstances, the contention of the Learned Counsel for the Respondent that the Penal damages and Interest under Section 14B and 7Q of the EPF & Miscellaneous Act 1952 levied by the Applicant, should be covered under the waterfall mechanism, goes against the well-established position of law.
The PF authorities are entitled to the satisfaction of the full claim in relation to the PF dues including interest. Further, it is to be taken note that the entire amount of Rs. 28,43,387/- do not form part of the Liquidation estate - Application disposed off.
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2022 (6) TMI 495
Violation of intellectual property and proprietary rights - injunction restraining the Respondent, its agents, servants and any and all persons acting for and through them from manufacturing, repairing and supplying any and all products/parts of ReGen make WTGs in the Indian Subcontinent - direction to Respondent to hand over to the Applicant any and all purchase orders, invoices, work orders etc. raised for the purpose of manufacture and supply of goods and services to third parties for use in ReGen make WTGs - HELD THAT:- The CIRP was initiated against the Corporate Debtor in IBA/1099/2019, viz. Regen Powertech Private Limited on 09.12.2019 and Mr. Ebenezer Inbaraj was appointed as Resolution Professional. It is placed on record that Resolution Plan in respect of the said Corporate Debtor was approved by this Adjudicating Authority vide order dated 01.02.2022 in IA/460/2021 in IBA/1099/2019 and the approved plan is now in the implementation stage.
This Adjudicating Authority has approved the Resolution Plan submitted in respect of Regen Powertech Private Limited on 01.02.2022, in the event of approval of the resolution plan all the prayers sought above turned infructuous and nothing survives in these applications - Application dismissed.
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