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Insolvency and Bankruptcy - Tribunal - Case Laws

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• 2021 (4) TMI 643 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , NEW DELHI
  
  Approval of Resolution Plan - grievance of the Appellant is that the Appellant is a Financial Creditor of the Corporate Debtor who filed claim before the Resolution Professional but the same was rejected on the ground of delay - HELD THAT:- The IBC was enacted to consolidate and amend the laws relating to reorganization and insolvency resolution of Corporate Persons, Partnership Firms and Individuals in a time bound manner for maximization of value of assets of such persons, to promote entrepreneurship, availability of credit and balance the interest of all stakeholders including alteration in the order of priority of payment of Government dues and to establish an Insolvency and Bankruptcy Board of India and for matters connected therewith or incidental thereto. The IBC has various provisions which are time bound. Stakeholders in IBC cann....... + More

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• 2021 (4) TMI 638 - NATIONAL COMPANY LAW TRIBUNAL , GUWAHATI BENCH
  
  Extension of Liquidation Proceedings by one year in terms of Regulation 44(2) of the IBBI (Liquidation Process) regulations, 2016 - HELD THAT:- The assets of the Company have not been liquidated yet as the land on which the Hotel building is situated does not belong to the Company and the main entrance area of the Hotel belongs to a third party. It is further submitted that more time will be required to appoint an amin for the demarcation of the assets of the Company and that of the other parties, as was suggested by the sole secured creditor in the 2nd Stakeholders Consultative Committee Meeting - That additional time is also required to file as application Regulation 38(1) of the Liquidation Process Regulations. Liquidation is required to be completed within 1 year. Liquidation order was passed on 06/09/2019. It should have been complet....... + More

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• 2021 (4) TMI 637 - NATIONAL COMPANY LAW TRIBUNAL , GUWAHATI BENCH
  
  Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Contract of Guarantee - bankruptcy process against the Respondents/Personal Guarantors - Section 60 (2) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The Financial Creditor had filed the petition under Section 7 of IBC against the Corporate Debtor and Corporate Debtor is in Liquidation. The Liquidation proceedings is going on - Now the Financial Creditor has filed application to proceed against the Guarantors to the Corporate Debtor in Liquidation. Hence it is essential to bring here the provisions of Section 95 of IBC Part III, Insolvency Resolution and Bankruptcy for Individuals and Partnership Firms for disposal of this I.A. It is clear that if the FC desires to file an Application Initiating Insolvency Resolution P....... + More

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• 2021 (4) TMI 632 - NATIONAL COMPANY LAW TRIBUNAL , AHMEDABAD BENCH
  
  Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditor - existence of debt and dispute or not - HELD THAT:- The petitioner has filed all the documents and the petition is complete in all respect. Service is complete and the default occurred on 16.08.2019 - The Adjudicating Authority is only required to consider whether there is any default and the debt is due and payable. In the instant case, the applicant has placed on record enough documents evidencing the default and hence, the present application deserves to be admitted. In the instant application, from the material placed on record by the Applicant, this Authority is satisfied that the application is complete in all respect and the Corporate Debtor committed default in paying the operational debt due and payable....... + More

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• 2021 (4) TMI 624 - NATIONAL COMPANY LAW TRIBUNAL , GUWAHATI BENCH
  
  Seeking extinguishing of demand towards Central Sales Tax and VAT - Extinguishing of demand prior to 20th September, 2018 - HELD THAT:- In the approved Resolution Plan, it was clearly stated that barring aside the claims admitted and forming part of the Resolution Plan any other claim and/or demand prior to the effective date shall stand extinguished. The Hon’ble Supreme Court of India in the matter of COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LIMITED THROUGH AUTHORISED SIGNATORY VERSUS SATISH KUMAR GUPTA & OTHERS [2019 (11) TMI 731 - SUPREME COURT] upholding the constitutional validity of the Insolvency and Bankruptcy Code (Amendment) Act, 2019 has held that Ultimately it is the commercial wisdom of the requisite majority of the CoC that must prevail on the facts of any given case, which include distribution of assets. It is,....... + More

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• 2021 (4) TMI 623 - NATIONAL COMPANY LAW TRIBUNAL , GUWAHATI BENCH
  
  Dissolution of the Corporate Debtor - section 54 of the Insolvency and Bankruptcy Code, 2016 read with regulation 45(3) of Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 - HELD THAT:- It is informed by the liquidator that he has not formed the Stakeholders’ Consultation Committee and no Stakeholders’ Consultation Committee meeting has taken place during the liquidation period. The reason for not forming/or conducting the meeting could not be clarified by the liquidator, when 5 Operational Creditors are there besides the promoters/ shareholders of CD. It is also reported, during the hearing that, a Fix Deposit of ₹ 5,25,000.00(Face value) with interest accrued therein of the CD lying with HDFC Bank even the Bank Guarantee/claim period of Letter of Guarantee (LG) is over. This deposit give....... + More

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• 2021 (4) TMI 622 - NATIONAL COMPANY LAW TRIBUNAL , GUWAHATI BENCH
  
  Seeking modification of list of stakeholders and incorporate claims filed by the financial stakeholders - Section 60(5) (c) read with Regulation 31(3) of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 - HELD THAT:- We are not much convinced about the reasons for delay in filing the claim, as the clam is filed around 14 months after i.e. on 31.12.2020, when the last date of filing the claim was 19.10.2019. Moreover, the claimant is the same FC which had filed Application under Section 7 of IBC. The reason mentioned by the Liquidator i.e. due to Covid period lockdown, the liquidation process could not be completed is not convincing. The fact is that the Covid Pandemic Lockdown started on 23.03.2020 i.e. after six months of liquidation order passed and no claim is filed during that six months also. Liqui....... + More

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• 2021 (4) TMI 620 - NATIONAL COMPANY LAW TRIBUNAL , GUWAHATI BENCH
  
  Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues or not - Operational Creditor - existence of debt and dispute or not - Time Limitation - HELD THAT:- In the case of Babulal Vardharji Gurjar Vs Veer Gurjar Aluminium Industries Pv. Ltd. & Anr. [2020 (8) TMI 345 - SUPREME COURT] it was held that an application under the Insolvency and Bankruptcy Code seeking CIRP in respect of the Corporate Debtor having been filed after a period three years from the date of default is barred by limitation. The petition dismissed as being barred by limitation.

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• 2021 (4) TMI 594 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
  
  Approval of resolution plan - main objection of the Applicants is that the Resolution Applicant intends to change the main business of the ‘Corporate Debtor’ form printing business to running Data Centers - change in the nature of the business of the ‘‘Corporate Debtor’’ is permitted or not. Whether the Resolution Plan approved under Section 31 by the Learned Adjudicating Authority is in contravention with the scope and objective of the Code which is ‘Resolution’, ‘maximization of value of assets of the ‘Corporate Debtor’’ and ‘promoting entrepreneurship’, ‘availability of credit and balancing interest of all stakeholders’? HELD THAT:- The Jurisdiction of NCLAT being in continuation of the proceedings envisages that any Appeal against an Order ....... + More

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• 2021 (4) TMI 589 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , NEW DELHI
  
  Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - service of notice - Operational Creditors - pre-existing dispute or not - HELD THAT:- The notice under Section 8 was sent on 22nd May, 2019. Before that on 7th November, 2017 there is email (Annexure A31) dated 09th November, 2017 at page 216 which is stated to have been sent by CEO of the Corporate Debtor to the Operational Creditor - There are notices at Annexure A33 and A34 which according to the Appeal were sent by Advocate of Corporate Debtor in March and April, 2018 in which notices, the Corporate Debtor raised various issues including that Operational Creditor failed to complete the project in time and whatever Operational Creditor worked-the project was found not working. Thus there is already pre-existing dispute between ....... + More

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• 2021 (4) TMI 588 - NATIONAL COMPANY LAW TRIBUNAL , MUMBAI BENCH
  
  CIRP process - possession of Land during the CIRP process - Restraint on Respondent from taking any steps in further of the notice - termination of lease agreement till the completion of the corporate insolvency resolution process - co-operation in concluding the corporate insolvency resolution process. HELD THAT:- R1’s action in seeking possession of the leased land, during the currency of CIRP, is hit by Section 14(1)(d) of the Code. The judgement of the Hon’ble Supreme Court in Rajendra Bhutta’s case [2020 (3) TMI 34 - SUPREME COURT] is the comprehensive answer to all the contentions raised by R1 where it was held that Section 14(1)(d) of the Insolvency & Bankruptcy Code, when it speaks about recovery of property “occupied”, does not refer to rights or interests created in property but only actual physical occupation of the property. The dismissal of the Writ Petition filed by R2 does not have any bearing on these proceedings - application allowed.

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• 2021 (4) TMI 585 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
  
  Attachment order in respect of the properties of Corporate Debtor - conflict between the IBC and PMLA or not - It is argued that Section 238 of IBC cannot preclude action under PMLA and because of this Section 32A of IBC was required to be introduced and the amendment does not affect action pre approval of resolution plan - HELD THAT:- The Application under Section 7 of IBC came to be admitted on 16.07.2018. It appears that the Resolution Professional approached the Appellant for release of the Provisional Attachment of the assets and properties of the Company and handover the charge to the Resolution Professional but this was not accepted and ultimately the Resolution Professional moved Ld. Adjudicating Authority (NCLT, Mumbai Bench, Mumbai) which after hearing the parties passed the present Impugned Orders. Power of Adjudicating Authori....... + More

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• 2021 (4) TMI 583 - NATIONAL COMPANY LAW TRIBUNAL , MUMBAI BENCH
  
  Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditor - assignment of the debt of the Corporate Debtor - legal or enforceable and recoverable claim to initiate any present proceeding or not, since cause of action accrued on 23.06.1998 - applicability of section 25(3) of the Contract Act - whether the said section is an exception to the provisions of Section 18 of the Limitation Act? HELD THAT:- The date of default mentioned in the present Petition is 1998 (23/06/1998 as per the Corporate Debtor) and the Petition has been filed on 04/03/2019, after a period of more than 20 years - Since the Assignment Agreement dated 27/09/2013 is much beyond 3 years after the date of default, the contention that Section 25(3) of the Contract Act would be an exception to the provisi....... + More

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• 2021 (4) TMI 582 - NATIONAL COMPANY LAW TRIBUNAL , GUWAHATI BENCH
  
  Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - Time Limitation - HELD THAT:- The CD has defaulted in making repayment of credit facilities to the Petitioner Bank and the date of default is 30.03.2018. The statement of accounts as on 19.12.2019 along with the Banker's Book Evidence Certificate annexed with the Petition confirms the default is ₹ 11,88,32,338.00. The petitioner Bank has filed the petition within the period of limitation, as the default has occurred as on 30.03.2018 and the application has been filed on 08.01.2021. The acknowledgment of debts have been submitted by the CD to the FC on 27/01/2015, 28/06/2017 and 19/07/2019. Charges have been filed with ROC on 25/03/2013 and thereafter charges ha....... + More

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• 2021 (4) TMI 577 - NATIONAL COMPANY LAW TRIBUNAL , SPECIAL BENCH , MUMBAI BENCH
  
  Approval of Resolution Plan - Section 30 (6) of the Insolvency and Bankruptcy Code, 2016 read with Regulation 39 (4) of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations 2016 - HELD THAT:- Upon perusal of the approved Resolution plan, the Bench has observed that out of ₹ 150.70 crores of total Debt amount to various creditors, stakeholders the SRA proposed to pay ₹ 30.07 crores as the Final Resolution Amount i.e. approx. 20% of the total Resolution debt amount. Even out of this ₹ 12 crores will be generated through sale of assets of Non-Core Business of the CD thereby the SRA will bring in only ₹ 18 crores i.e 12% of the total outstanding Resolution Debt amount or approx. 60% of the Resolution Plan value. In case the SRA could not realise, monetise the said amount of ₹ 12 crores, how ....... + More

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• 2021 (4) TMI 574 - NATIONAL COMPANY LAW TRIBUNAL , MUMBAI BENCH
  
  Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditor - amount paid towards interest as on 31.03.2019 - time limitation complied or not for amount paid towards interest - applicability of section 18(1)& 19 of Limitation Act, 1963 - HELD THAT:- In the present case evidently there has been payment of TDS on interest on 31.03.2014, an amount of ₹ 60,493/- was paid on 31.03.2017, an amount of ₹ 2,40,000/- was paid towards TDS on interest on 31.03.2018, and finally as last tranche of payment of ₹ 60,493/- as TDS on interest was made on 31.03.2019. If the date of default is construed as 1.01.2015, then the three year limitation would end on 01.01.2018, but since the interest was made within three years of limitation period and such payments continue....... + More

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• 2021 (4) TMI 524 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH , NEW DELHI
  
  Right of respondent on common road - disturbance or hindrance to the Resolution Professional or to any of his staff or security personnel in any manner caused or not - HELD THAT:- Schedule -1 ‘property details and position’ which is filed in the Reply Affidavit at page 42 that site map has been filed with shows that on the south side of the plot there is a common road, this fact has not been denied by the Appellant. This fact has also been mentioned in the Title Deed, so taking this fact and all the submissions advanced by the parties, the Ld. Adjudicating Authority has rightly pass the impugned order. The proceeding before the Adjudicating Authority and this Tribunal is summary in nature as to follow strict time line. The Learned Counsel for the Appellant have failed to make out any ground and the finding recorded by Ld. Adjudicating Authority - Appeal dismissed.

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• 2021 (4) TMI 523 - NATIONAL COMPANY LAW TRIBUNAL , MUMBAI BENCH
  
  Liquidation of Corporate Debtor - liquidation sought as no Resolution Plan was receive - Section 33(1) of the IBC 2016 - HELD THAT:- On 02.02.2021 pronouncement of orders was deferred upon request of a prospective Resolution Applicant viz. Mantena Constructions Pvt Ltd, who had filed application expressing its interest in putting up a Resolution Plan and requesting certain details from the RP in furtherance thereof. Orders were passed in permitting the Applicant therein to access the details. The RP was also directed to provide the required information. However, on 23.03.2021 the Applicant (Mantena Constructions Pvt Ltd) submitted that upon verification of the information made available, it was no longer interested in submitting a Resolution Plan. Thereafter, orders in MA No. 227 of 2018 & MA No. 350 of 2018 were reserved and are bein....... + More

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• 2021 (4) TMI 522 - NATIONAL COMPANY LAW TRIBUNAL , KOCHI BENCH
  
  Related party transactions or not - Preferential transactions - seeking directions to the related parties to pay back the amount to the Company - Section 43(1) of Insolvency and Bankruptcy Code, 2016 - HELD THAT:- In the present case, the impugned transactions are between the Respondents [erstwhile Directors of the Corporate Debtor] and Corporate Debtor. The Applicant’s case is that these transactions are preferential in nature because the amount was advanced by the Corporate Debtor to the Respondents and Land Sale Agreement was also made between them. However, the Applicant failed to prove that these transactions made by the Corporate Debtor were preferential in nature, by producing any document. According to the Applicant SVAR and Associates conducted Audit and filed a Report, but that was not produced along with the Application. ....... + More

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• 2021 (4) TMI 521 - NATIONAL COMPANY LAW TRIBUNAL , MUMBAI BENCH
  
  Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditor - existence of debt and dispute or not - date of default in case of issuance of fresh cheques as replacement cheques - HELD THAT:- Since the replacement cheques were issued by the Corporate Debtor and were accepted by the Petitioner, the contention of the latter that default had taken place on 31/07/2019 does not hold water. In the clause 4 of the Consent Terms it was clearly stated as “The Corporate Debtor hereby agrees and undertakes that the said amount shall be paid by the Corporate Debtor to the Financial Creditor vide postdated cheques (PDC) on the due dates mentioned hereunder”. When the Corporate Debtor issued fresh cheques and they were accepted, the due date also got extended. Besides by it....... + More

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