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Insolvency and Bankruptcy - Tribunal - Case Laws

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• 2020 (10) TMI 965 - NATIONAL COMPANY LAW TRIBUNAL , MUMBAI BENCH
  
  Restoration of petition - whether the Applicant/Financial Creditor is entitled to seek restoration of the company petition that has already been disposed of, and whether the Adjudicating Authority under the Insolvency and Bankruptcy Code, 2016, has the power to do so? HELD THAT:- The applications seeking revival of a company petition disposed of as withdrawn after recording the settlement terms arrived at between the parties, is permissible in exercise of the powers conferred on the Tribunal under rule 11 of the NCLT Rules, 2016 - Incidentally, exercise of the power conferred by rule 11 of the Rules ibid for the purposes of the Code has been upheld by the Hon’ble Supreme Court in SWISS RIBBONS PVT. LTD. AND ANR. VERSUS UNION OF INDIA AND ORS. [2019 (1) TMI 1508 - SUPREME COURT]. Petition is revived and restored to file.

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• 2020 (10) TMI 964 - NATIONAL COMPANY LAW TRIBUNAL , MUMBAI BENCH
  
  Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - claim of Financial Creditor - time limitation - amount in question has been claimed in a civil suit before the Civil Judge (Senior Division), Amravati, by the Financial Creditor, which dismissed the application of the Financial Creditor for attachment before judgment, the appeal against the order has also been dismissed by the Hon’ble Bombay High Court - suppression of facts by Financial Creditor or not. Time Limitation - HELD THAT:- The date of default mentioned in the application to be 21.09.2013. Also, the Financial Creditor has relied heavily on the acknowledgements in the balance sheets for the Financial Years 31.03.2013, 31.03.2014, 31.03.2015, 31.03.2016, 31.03.2017 and 31.03.2018, which have been attached to the peti....... + More

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• 2020 (10) TMI 963 - NATIONAL COMPANY LAW TRIBUNAL, KOCHI BENCH
  
  Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Debt or not - novation of contract - suppression and misrepresentation of the facts or not - existence of debt and dispute or not - HELD THAT:- This Tribunal is of the clear view that the Adjudicating Authority is only to satisfy that the default has occurred and that the ‘Corporate Debtor’ is entitled to point out that the default has not been occurred in the sense that the debt is not due. As no other person has a right to be heard at the stage of admission of the application under Section 7 and 9 of the I&B Code. This Tribunal does not consider the objection raised by the guarantors to arrive at a decision in this matter. To clear this confusion regarding treatment of assets of guarantors of the corpor....... + More

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• 2020 (10) TMI 962 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , NEW DELHI
  
  CIRP Proceedings - submission of claim before RP on the basis of an Arbitral Award - Change in voting percentage - The Appellant after becoming Member of COC, objected to part claim of OBC, to the extent it is based on corporate guarantees given by the Corporate Debtor for third party dues-debts. Appellant objected that, such part of the claim is not Financial Debt and to that extent voting right percentage of OBC should be reduced. - HELD THAT:- In the present matter, there was disbursal of debt by the bank to the third parties and the Corporate Debtor gave guarantee for repayment of such debt when it became outstanding. Clearly, the loan advanced carried the element of consideration for time value of money and when such disbursal was guaranteed, it has to be treated as a financial debt under Section 5(8)(a) read with (i) of IBC - The th....... + More

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• 2020 (10) TMI 961 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL — NEW DELHI BENCH
  
  Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - Non-performing Asset - time limitation - main ground in the present appeal is that application under section 7 of the I and B Code was filed in December 2018, i. e., after a delay of almost five years - applicability of section 18 of the Limitation Act, 1963 to insolvency cases - HELD THAT:- The corporate debtor's balance-sheet cannot be considered as an acknowledgment under section 18 of the Limitation Act, 1963. The issue was considered explicitly by the five hon'ble Members of this Appellate Tribunal in the case of V. Padmakumar v. Stressed Assets Stabilisation Fund (SASF) [2020 (3) TMI 1244 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] and held that the books of account are required to be prepared under the obl....... + More

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• 2020 (10) TMI 960 - NATIONAL COMPANY LAW TRIBUNAL , NEW DELHI BENCH
  
  Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute - Share application money - HELD THAT:- The Respondent's first contention that he has already paid the full and final amount of ₹ 1.03 Crore pursuant to amicable settlement of dispute as recorded in order dated 11th October, 2017 of the Hon'ble National Company Law Tribunal passed in CP No. 205(ND)/2017, the Applicant has accepted the fact that the said amount has been duly received by him but argued that the interest on that amount has not been paid. On our perusal of provisions of section 42 of Companies Act, 2013 and Companies (Acceptance of Deposit) Rules, 2014 as well as of the definition of financial debt under the Code - The Applicant's contention that while returning the prin....... + More

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• 2020 (10) TMI 959 - NATIONAL COMPANY LAW TRIBUNAL , KOCHI BENCH
  
  Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - scope of Financial Credit - Competent person or not - disputed debt of debt due - time limitation - legally recoverable debt or not. Whether Application filed by the Financial Creditor is not filed by a competent person? - HELD THAT:- The Financial Creditor has the proper authority to file the present application, and the objection raised by the counsel for the Corporate Debtor is merely incongruous, and therefore, holds no water. Moreover, the Financial Creditor has annexed the Board Resolution dated 05.08.2019 authorising Deputy Manager (Legal) to represent the Financial Creditor before various forums from time to time - there are no merit in the argument made by the Corporate Debtor in this connection. Whether the alleged debt ....... + More

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• 2020 (10) TMI 952 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
  
  Application for taking additional documents on record - HELD THAT:- The prayer of the Appellant is allowed to file such application within a week and supply advance copy to opponent counsel so that the opponent counsel may be able to file Reply of the same. Let the Appeal be fixed ‘For Admission (After Notice)’ on 12th October, 2020.

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• 2020 (10) TMI 918 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
  
  Maintainability of application - initiation of CIRP - discrepancy in the demand notice - stand of the Appellant is that the amount in default as specified in the Demand Notice is to be in consonance with the Application filed and the ‘invoices’ sent - Appellant submits that the ‘Adjudicating Authority’ had failed to consider the fact that the material defect in the ‘Demand Notice’ is fatal to the facts of the present case - HELD THAT:- In a given petition filed by the ‘Operational Creditor’ there is a heavy burden on the ‘Corporate Debtor’ to show that the dispute is a real and genuine one. Further, where a petition of the ‘Operational Creditor’ was opposed by the ‘Corporate Debtor’ on the ground that the dispute existed between the parties regarding the q....... + More

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• 2020 (10) TMI 917 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
  
  Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditor - existence of debt and dispute or not - time limitation - whether the party supposedly supplying the polymer granules is an operational creditor and the amount of invoice which is within limitation is an operational debt as defined in the IBC? - HELD THAT:- Section 5 (21) of the IBC defines operational debt to mean a claim in respect of the provision of goods or services including employment or a debt in respect of the repayment of dues. Quite obviously provision of goods or services is a pre-requisite for the existence of operational debt. In the present appeal the corporate debtor M/s N.R. Commercials Pvt. Ltd. has not only vehemently and flatly denied giving any purchase order for the said supply of polyme....... + More

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• 2020 (10) TMI 916 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
  
  Liquidation order - Section 60(5) read with Section 52(5) of the Insolvency and Bankruptcy Code, 2016 - applicability of moratorium - termination of PPA or not. Whether the moratorium declared under Section 14 of IBC applies to the PPA along with other immovable and moveable properties of the corporate debtor? - HELD THAT:- The IBC, 2016 is in the nature of beneficial legislation which strives to protect the national wealth that is included in the corporate business, partnership firms and individuals by providing economically sound and legally robust mechanism for reorganization and insolvency resolution. Hence, action under various provisions of IBC must be driven by such a spirit in legally sound manner - the PPA entered into between the power producer and the purchaser of power provides a long-term and steady stream of revenue accrual ....... + More

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• 2020 (10) TMI 915 - NATIONAL COMPANY LAW APPEALLATE TRIBUNAL, NEW DELHI
  
  Maintainability of application - suspension of initiation of CIRP - bar created by law in terms of the newly inserted Section 10A coming into force - whether an application for initiation of CIRP of a Corporate Debtor in respect of default committed before 25th March, 2020 but filed before 05th June, 2020 i.e. the date on which amending ordinance came into force, in respect of such default, would be maintainable in view of the express bar created by the main provision of Section 10A? HELD THAT:- It is by now well settled that a substantive administrative right cannot be taken away except by clear indication of intention to that effect by an express statutory provision or by necessary implication. No statute, unless it deals with procedure only, can be construed to have retrospective operation unless there is an express provision to that e....... + More

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• 2020 (10) TMI 914 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
  
  Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- From the perusal of e-mail /correspondences between the Appellant/Corporate Debtor and Respondent/Operational Creditor, it is the case of the Appellant/Corporate Debtor that the Respondent has not completed the project in time thereby the Project was got delayed thereby they suffered losses. On the other side, the stand of Respondent/Operational Creditor that they have completed the Project and handed over to the Appellant/Corporate Debtor, however, Appellant/Corporate Debtor failed to pay bills even after complete of the project. It is unequivocal that there exists dispute between the parties prior to the issuance of Demand Notice dated 11.04.2019 - the learned Adjudicating Autho....... + More

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• 2020 (10) TMI 913 - NATIONAL COMPANY LAW APPEALLATE TRIBUNAL, NEW DELHI
  
  Delay of 2 days in filing revised Resolution Plan - CIRP process still ongoing - Direction to Resolution Professional to take on record and consider the revised offer submitted by e-mail dated 14th February, 2020 - rejection on the ground that the Resolution Plan of the highest bidder has already been approved with 100% voting and the Application of Appellant suffered from latches and lacked bonafidies - HELD THAT:- In the instant case, Appellants submitted the Resolution Plan only two days after the revised plan of Respondent No.4 and well within the 180 days of ordinary timelines of CIRP under ‘I&B Code’. There was no justification for its rejection by the Resolution Professional who was duty bound to place the same before the Committee of Creditors especially when the ordinary CIRP period of 180 days was still subsistin....... + More

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• 2020 (10) TMI 912 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
  
  Direction to set aside the Order of the Liquidator rejecting the ‘Claim’ of the Appellant - It is the Applicant’s case that there was no requirement of registration of ‘Charge’ with the R.O.C and that the Liquidator, without examining the Certificate issued by the Registration Authority under the ‘M.V. Act’ dismissed the Claim made by the Applicant. HELD THAT:- It is clear from Section 52(3)(a) of the Code that before any security interest is sought to be realised by the Secured Creditor under this Section, the Liquidator shall verify such security interest and permit the Secured Creditors to realise only such security interest, the existence of which may be proved either by the records of such security interest maintained by an ‘Information Utility’ or by such other means as may be sp....... + More

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• 2020 (10) TMI 911 - NATIONAL COMPANY LAW TRIBUNAL AHMEDABAD BENCH
  
  Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - HELD THAT:- The Corporate Debtor has defaulted in making repayment of financial facilities/debt to the Petitioner and the date of default is from 10.04.2016 and onwards as per Annexure-IV/27 Colly. The Statement of accounts and the CIBIL Reports submitted by the applicant confirm the default committed by the Corporate Debtor. This Adjudicating Authority is satisfied that, (a) The Corporate Debtor availed Financial Facilities from the Petitioner. (b) Existence of debt is above Rs. One Lac; (c) Debt is due and defaulted. (d) Default has occurred on various dates starting from 10.04.2016 onwards as per Annexure IV/27 Colly. (e) Petition has been filed on 13.11.2017 i.e. within the limitation per....... + More

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• 2020 (10) TMI 869 - NATIONAL COMPANY LAW TRIBUNAL , HYDERABAD BENCH
  
  Direction to Respondents to keep the payment of the electricity bills of the Applicant in abeyance till either the (i) end of the moratorium period of the Applicant's insolvency proceedings as per the Hon'ble NCLT's Order dated 09.04.2019, or (ii) final disposal of the Writ Petition No. 38107 of 2014, whichever is earlier - Section 60(5) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- It is not in dispute the Applicant / Corporate Debtor already filed writ petition in the Hon'ble High Court bearing Writ Petition No. 38107/2014. Thus already the Corporate Debtor moved the Hon'ble High Court even before CIRP started against Corporate Debtor. Having filed writ petition in the Hon'ble High Court and when matter is sub-judice, it is not open to the Applicant / Corporate Debtor to move the Tribunal again on the....... + More

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• 2020 (10) TMI 868 - NATIONAL COMPANY LAW TRIBUNAL , JAIPUR BENCH
  
  Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - unpaid License Fee - Operational Creditor - existence of debt and dispute or not. Whether the unpaid Licence Fee arising out of Licence Agreement with regard to immovable property falls under the definition of Operational Debt as defined under the provisions of the Insolvency and Bankruptcy Code, 2016? - HELD THAT:- Only if the claim by way of debt falls within one of the three categories as listed above can such a claim be categorized as an operational debt. In case if the amount claimed does not fall under any of the categories mentioned as above, the claim cannot be categorized as an operational debt and even though there might be a liability or obligation due from one person, namely Corporate Debtor to another, namely Creditor....... + More

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• 2020 (10) TMI 867 - NATIONAL COMPANY LAW TRIBUNAL , KOLKATA BENCH
  
  Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- It is clearly seen from the material on record that the operational creditor raised invoice for a sum of ₹ 9,26,600/-. The operational debt itself is disputed by the corporate debtor. The corporate debtor also showed as to why and as to how the amount claimed towards professional charges is exorbitant. It has pointed out that the amount payable by it towards submission to West Bengal Labour Welfare Board is just ₹ 324/- page 27 (affidavit-in-reply) but the operational creditor in his invoice has claimed sum of ₹ 7,000/- towards labour welfare fees (page 19 of the application) - It is not necessary for us to go through all entries in detail. Suffice to say is that....... + More

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• 2020 (10) TMI 866 - NATIONAL COMPANY LAW TRIBUNAL , AHMEDABAD BENCH
  
  Directions to Respondent Bank to release, refund and transfer the amount of the fixed deposit along with accrued interest till date of payment, to the bank account of the Corporate Debtor - It is submitted by the RP that as per Section 18(1) of the IB Code, the RP is required to take control and the custody of any asset over which the Corporate Debtor has ownership rights as recorded in the Balance Sheet of the Corporate Debtor - HELD THAT:- It is a matter of record that the above said fixed deposits are of Corporate Debtor and once the CIRP is initiated the RP has to comply Section 18(1)(f) of the IB Code. This Adjudicating Authority hereby directs the Respondent Bank to release the aforesaid amount of ₹ 65,02,500/- to the account of the Corporate Debtor and/or pool amount, if any, opened/ maintained by the RP for the purpose of CI....... + More

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