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Insolvency and Bankruptcy - Case Laws
Showing 201 to 220 of 8708 Records
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2024 (2) TMI 91 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI
Approval of Resolution Plan - non-allocation of any marks on equity allotment to the Financial Creditors to the Appellant with regard to which IA No. 413 of 2023 was filed before the Adjudicating Authority - mis-calculation of the NPV of the Respondent No.2 which according to the Appellant is not accordance with the evaluation matrix.
Non-allocation of any marks on equity allotment to the Financial Creditors to the Appellant with regard to which IA No. 413 of 2023 was filed before the Adjudicating Authority - HELD THAT:- As per the Process Document and terms and conditions, Appellant was not entitled to change its financial proposal, hence, Clause 2 as extracted above included in the final Resolution Plan on 18.01.2023 could not help any allocation or marks to the Appellant. Further, in Clause 2 as added on 18.01.2023 provided for option to elect the fresh equity allotment by the CoC. CoC never opted to accept equity allotment as offered by the Appellant. When equity allotment was never accepted there was no question of giving any marks to the Appellant on equity allotment. Thus, allocation of no marks in the equity allotment was as per the Process Document and evaluation matrix and the Adjudicating Authority did not commit any error in rejecting IA No.413 of 2023. Further, value of the equity offered by the Appellant is Rs.200 Crores which does not meet the minimum INR 250 Crores threshold as prescribed in the evaluation matrix - no error was committed in not allocating any marks to the Appellant on equity allotment and the first submission raised by the Appellant has no merit.
Mis-calculation of the NPV of the Respondent No.2 which according to the Appellant is not accordance with the evaluation matrix - HELD THAT:- The determination of NPV of the Respondent No.2 as per final Resolution Plan as done by the Consolidated CoC and its advisors, thus, has to be treated as final and cannot be allowed to be challenged by any other Resolution Applicants. Present is a case where Appellant is challenging the determination of NPV by CoC and its Process Advisors contrary to the aforesaid Clause 2(ii) which is impermissible. The evaluation matrix and Process Document are documents which have been issued by the CoC and the CoC is the best judge to interpret its document and apply it for evaluation of NPV of the Resolution Applicants. The Hon’ble Supreme Court in Silppi Constructions vs. Union of India [2019 (6) TMI 1449 - SUPREME COURT] held that the author of a document is a best judge as to how the document has to be interpreted.
Thus, commercial decision of the CoC while approving the plan to take decision whether to approve the plan of Resolution Applicant has highest NPV or not. The above clause of the Process Document also clearly indicate that the commercial wisdom of the CoC has been given paramount importance and whether the Applicant has highest NPV or not is not a deciding factor.
The law laid down by the Hon’ble Supreme Court is well settled that the business decision of the CoC is not to be interfered with by the Adjudicating Authority or this Tribunal unless it is shown that there is violation of Section 30(2) of the Code. Present is not a case where there is any submission that the Resolution Plan does not comply with Section 30(2). What is challenged by the Appellant is the allocation of marks on the basis of evaluation matrix to the Resolution Applicant - the CoC has considered the Resolution Plan in accordance with the evaluation matrix and there were no error in determination of the NPV of the Respondent No.2. Further, the Appellant was not entitled for any marks on equity allotment to the Financial Creditors which mark was rightly not given to the Appellant in the evaluation matrix.
There are no error in the order of the Adjudicating Authority rejecting IA No.413 of 2023 and IA No.557 of 2023. Approval of the Resolution Plan by the Adjudicating Authority is in commercial wisdom of the CoC. No grounds have been made out to interfere with the order of the Adjudicating Authority approving the Resolution Plan.
Appeal dismissed.
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2024 (2) TMI 23 - SUPREME COURT
CIRP - Moratorium against the company has been ordered - Home Buyers sought direction to Developer to complete the project in all respects and handover the possession of the allotted flats/apartments to the members of the Association of the homebuyers within the time specified - submission of appellants is that under the provisions of the IBC, there is no prohibition on proceeding against the directors/officers of the company, which is the subject-matter of moratorium under Section 14 of the IBC - HELD THAT:- The National Commission has not made any adjudication on the question whether the opposite party Nos. 2 to 9(the respondent Nos. 2 to 9) in the execution application were under an obligation to abide by the directions issued against the company. This issue has not been considered at all by the National Commission. There is no finding recorded by the National Commission that in view of any particular provision of the IBC, moratorium will apply to the directors/officers of the company.
Only because there is a moratorium under Section 14 of the IBC against the company, it cannot be said that no proceedings can be initiated against the opposite party Nos. 2 to 9(the respondent Nos. 2 to 9) for execution, provided that they are otherwise liable to abide by and comply with the order, which is passed against the company. The protection of the moratorium will not be available to the directors/officers of the company.
The impugned judgments and orders set aside - the execution application remitted to the National Commission - appeal allowed in part.
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2024 (2) TMI 22 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , CHENNAI
Validity of order of liquidation of the Corporate Debtor based on the unanimous decision of the Committee of Creditors with 100% voting rights - ‘Locus-Standi’ of the appellants - HELD THAT:- It is to be remembered that the ‘Representatives of the Corporate Debtor’ were also present in the 7th CoC meeting and it cannot be brushed aside that the only Asset, which was on ‘Lease’ for a period of 30 years, provided by ‘Bekal Resorts Development Corporation Ltd.’ (BRDCL) was cancelled on 30.03.2022. In fact, the Corporate Debtor’s Representatives, who were present during the meeting had mentioned that they had not assailed the termination of ‘Lease Agreement’ till the start of the CIRP date. Also, that the Resolution Professional was unable to take any action in as much as the Termination of the ‘Lease Agreement’ was more than 10 months before the CIRP and ‘BRDCL’ had informed of not changing its decision through its letter dated 15.03.2023.
Merely because there were ‘No Assets’ and no option for revival of the Corporate Debtor an unanimous 100% decision was taken by the Committee of Creditors in its commercial wisdom to liquidate the Corporate Debtor.
The commercial wisdom of the Committee of Creditors is to be respected subject to the limited judicial review, that was available to the Adjudicating Authority / Tribunal. Also that the commercial wisdom of Committee of Creditors is beyond the ambit of challenge, pertaining to the decision taken for liquidation of the Corporate Debtor being essentially a ‘business decision’ based upon the commercial wisdom and keeping in view the ingredients of Section 33(2) of the I&B Code, 2016 and the explanation thereto.
In law, when the Resolution Plan is in accordance with Section 30 and 31 of the Code, the Resolution Plan was to be approved. Whether the Adjudicating Authority/Appellate Tribunal, it cannot enter into any analysis to judge, as to whether the prescription of the Resolution Plan results in maximization of the value of assets are not as per decision of Hon’ble Supreme Court in Jaypee Kensington Boulevard Apartments Welfare Association v. NBCC (India) Ltd. [2021 (3) TMI 1143 - SUPREME COURT].
As far as the present case is concerned, commercial decision taken by the Committee of Creditors was in fulfilment of the relevant provisions of the I&B Code, 2016 and Regulations, especially in the teeth of Regulation 40D of the IBBI Corporate Persons Regulations, 2016 - The I&B Code, 2016 does not any way spell out ‘any such opportunity’ being provided to the Appellants (Promoters/Shareholders), at the time of passing of the Liquidation order and they don’t have any semblance of any ‘legal right’ or ‘vested right’ to oppose the ‘Liquidation order’ before the ‘Adjudicating Authority/Tribunal’ in the considered opinion of this Tribunal. Viewed in that perspective the Appellants in the instant Appeal are not to be characterised as ‘Aggrieved Persons’ within the parameters of Section 61 of the I&B Code, 2016.
This Tribunal taking note of the rival contentions advanced on either side is of the earnest opinion that in the present case the only Asset to Corporate Debtor, which was on Lease for 30 years was cancelled on 30.03.2022 there were no Assets and no option for the resurrection /revival of the Corporate Debtor, the 100% unanimous decision taken by the Committee of Creditors, in its commercial wisdom to Liquidate the Corporate Debtor is not to be interfered with by this Tribunal because of the limited power of ‘judicial review’.
Appeal dismissed.
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2024 (1) TMI 1266 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI - LB
Condonation of delay in filing the Appeal - ground taken in the Application for condonation is that the Order passed by the Adjudicating Authority was passed without giving an opportunity to the Appellant - Violation of principles of natural justice.
Whether Appellant is entitled for benefit of Section 14 of the Limitation Act for excluding the period during which the two applications were pending before the Adjudicating Authority?
HELD THAT:- Hon’ble Supreme Court in KALPRAJ DHARAMSHI & ANR. VERSUS KOTAK INVESTMENT ADVISORS LTD. & ANR. [2021 (3) TMI 496 - SUPREME COURT] had occasion to consider Section 14 of the Limitation Act in reference to Appeal filed under Section 61 of the Code before the Appellate Tribunal. In the above case, Appeal was filed before the Appellate Tribunal against the Order dated 20th November, 2019 on 18.02.2020 - The Hon’ble Supreme Court considered the submissions, noticed the ambit and scope of the Section 14 of the Limitation Act and after noticing the judgments of the Hon’ble Supreme Court in MP. STEEL CORPORATION VERSUS COMMISSIONER OF CENTRAL EXCISE [2015 (4) TMI 849 - SUPREME COURT] and CONSOLIDATED ENGG. ENTERPRISES VERSUS PRINCIPAL SECY. IRRIGATION DEPTT. & ORS. [2008 (4) TMI 668 - SUPREME COURT] held that benefit of Section 14 of the Limitation Act can be extended in Appeal filed under Section 61 of the IBC. Ultimately after elaborate discussion and after noticing the facts of the present case, it was held that Appellant was entitled to exclusion of period during which he was bona fide prosecuting before the High Court with due diligence.
The judgment of Hon’ble Supreme Court thus clearly establishes that benefit of Section 14 of the Limitation Act can be extended in Appeal filed under Section 61 of the IBC. Thus the applicability of Section 14 of the Limitation Act with regard to Appeal under Section 61 is no more res integra.
Hon’ble Supreme Court in Kalpraj Dharamshi has also held that even if Section 14 is not strictly applicable, the principles under Section 14 are attracted. Section 14 of the Limitation Act is applicable in IBC proceeding which is now settled by several judgments of the Hon’ble Supreme Court as well as by virtue of Section 238A of the Code which clarifies about the applicability of limitation act.
Thus, even Section 14 is not attracted the benefit of Section 5 of the limitation act can be extended and the cause can be considered for condonation of delay by applying Section 5 but in the IBC there is a cap on the jurisdiction in condoning the delay as per Section 61(2) proviso, jurisdiction to condone the delay is only of 15 days. Period during which application was pending before the Adjudicating Authority is not excluded under Section 14 of the Limitation Act, the delay in filing the Appeal is beyond 15 days which is not within condonable limit. Thus, delay is beyond 15 days and cannot be condoned.
This Appeal has been filed challenging the Order beyond 45 days. The jurisdiction to condone the delay being limited to 15 days and having held that benefit of Section 14 of the Limitation Act cannot be extended to exclude period during which I.A. No. 2337 of 2023 and I.A. No. 3270 of 2023 remained pending before the Adjudicating Authority, the Delay Condonation Applications which prays condonation of 74 days delay deserves to be dismissed.
Application dismissed.
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2024 (1) TMI 1265 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , CHENNAI
Application seeking direction to release payment as an Operational Creditor, for the services rendered during the CIRP period, dismissed - right to appeal in terms of Section 61(3) of the Code - HELD THAT:- The application filed under Section 60(5) was filed by the Appellant on 01.06.2019. At that time the proceedings in regard to approval of the Resolution Plan was not over. The Appellant did not file any application for staying the approval of the Resolution Plan till the disposal of his application. The Resolution Plan was approved on 27.06.2019 itself and the same has ultimately been approved by the Hon'ble Supreme Court on 28.02.2020. It is also a matter of fact that the Plan has also been implemented. In such circumstances, the application filed under Section 60(5) had lost its sheen as a new right of appeal become available to the Appellant to pursue its remedies in terms of Section 61(3)(iii) and (iv) of the Code before the Appellate Authority. The said procedure was not followed by the Appellant and therefore, in our considered opinion, the application filed under Section 60(5) was not maintainable.
In view of the aforesaid discussion and the fact that Resolution plan was approved way back on 28.02.2020 by the Hon’ble Supreme Court and has been implemented, there are no merit found in the present appeal - appeal dismissed.
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2024 (1) TMI 1257 - SC ORDER
Rejection of Resolution plan - no related party - Non-inclusion of the Appellant in the Committee of Creditors - entitlement to vote in the Committee of Creditors - categorization of the homebuyers in class as ‘Affected’ and ‘Unaffected’ homebuyers - violation of Section 30(2)(e) of IBC - it was held by NCLAT that no error has been committed by the Adjudicating Authority in rejecting the application - HELD THAT:- There are no good ground and reason to interfere with the impugned judgment and hence, the present appeal is dismissed.
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2024 (1) TMI 1256 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL CHENNAI
Seeking withdrawal of appeal - HELD THAT:- Acceding to his request for withdrawal, the instant Comp. Appeal is `dismissed as withdrawn’.
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2024 (1) TMI 1217 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Initiation of CIRP - Date of default - Existence of restructuring proposals - NCLT admitted the application u/s 7 - pre-implementation conditions as stipulated in the restructuring proposals were mandatory or not - failure in its compliance tantamounted to non-execution of the restructuring approvals automatically or not - date of default was covered under Period stipulated under Section 10A of the Code or not - payments of Rs. 50 Crores made by the Corporate Debtor to the financial creditors i.e., the Respondent No. 2 and PFC resulted in automatic extension of restructuring approvals or not - financial viability of the Corporate Debtor as claimed by the Appellant would have impacted the impugned order in deciding the application filed under Section 7 of the code by the Respondent No. 2 or not.
Existence of restructuring proposals - pre-implementation conditions as stipulated in the restructuring proposals were mandatory or not - failure in its compliance tantamounted to non-execution of the restructuring approvals automatically or not - HELD THAT:- The period from the date 25.03.2020 to 24.03.2021, is the period which is required to be excluded for the purpose of initiation of CIRP under Section 7, 9 and 10. Section 10A of the Code also clearly mandates that no application shall ever be filed for initiation of CIRP of a Corporate Debtor for the said default occurring during the said period. It is significant to note that the explanation provided under Section 10A of the Code stipulate that provision of Section 10A shall not apply to any default committed under the said Sections before 25.03.2020. Hence, date of default become critical.
On the failure of the Corporate Debtor to fulfil its obligation to the original common loan agreement and subsequently, further failure to comply with the first restructuring proposal dated 21.02.2020 and further failure to comply with the second restructuring approval dated 29.09.2020, the Appellant, at this stage, cannot take the plea of continuation of all agreements/proposals. Normally, when the restructuring proposal is agreed upon, the same is in supersession to the previous loan agreement/restructuring proposal. Here, it is critical to understand that pre-implementation condition are conditions precedent, which are meant to be followed and it cannot be the case of the borrower that despite his failure to fulfil the conditions precedent, the restructuring proposal should be deemed to be valid, continuing and further deemed to be converted into agreement - In the present case, undisputedly the Corporate Debtor could not make the required payments to the lenders i.e. the Respondent No. 2 as well as PFC and also could not meet with pre-implementation conditions and therefore, the restructuring approval ceased to remain alive and the only valid agreement which survived was the common loan agreement dated 19.06.2013.
Default period falling within period specified under Section 10A of the Code or otherwise? - HELD THAT:- It is evident that the Respondent No. 2 clearly indicated date of default to be 31.03.2018, which is not covered under Section 10A of the Code. Incidentally, the Respondent No. 2 also gave date of NPA of Corporate Debtor i.e., 30.06.2018, which is also out of purview of Section 10A of the Code - the date of default as indicated in Part IV by the Appellant is 31.03.2018 based on first default as per original common loan agreement. The Adjudicating Authority has considered 31.03.2021 as a date of default based on the second restructuring approval dated 29.09.2020. We have already noted that as per Section 10A of the Code, the period is specified is from 25.03.2020 to 24.03.2021. Thus, either of the dates i.e., 31.03.2018 or 31.03.2021 are clearly out of purview of Section 10A of the Code.
Payments of Rs. 50 Crores made by the Corporate Debtor to the financial creditors i.e., the Respondent No. 2 and PFC resulted in automatic extension of restructuring approvals or not - HELD THAT:- The plea of the Appellant regarding existence and continuation of default under first restructuring proposal is wrong as the Corporate Debtor itself has submitted in I.A. No. 1020/KB/2020 filed by the them before the Adjudicating Authority in which the Corporate Debtor sought reliance solely on the Second Restructuring Proposal submitting that the Corporate debtor was required to make payment from 31.03.2021, without contending that there was any payment obligations or default continuing from first restructuring proposal - there are no force in the pleading of the Appellant on this issue.
Financial viability of the Corporate Debtor as claimed by the Appellant would have impacted the impugned order in deciding the application filed under Section 7 of the code by the Respondent No. 2 or not - HELD THAT:- It is recaptured from pleadings of the appellant that the Corporate Debtor has raised bills of Rs. 916.95 Crores from WBSEDCL and during Financial Year 2022-23, the Corporate Debtor earned EBITDA of Rs. 308 Crores and therefore, the company was solvent. During averments, the Appellant also agreed to pay outstanding amounts as per restructuring approvals around Rs. 103 Crores lying in the credit of TRA account - there has been continuous and repeated failure on the part of the Corporate Debtor to meet its obligation in making payment of principals and interest as per original common loan agreement and also failure to meet obligations as per first and second revised Restructuring Approvals. In backdrop of all these information, it is not found that so-called claim made by the Appellant about viability of the Corporate Debtor has any legal or factual force to impact the outcome of Section 7 application as contained in the Impugned Order.
Appeal dismissed.
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2024 (1) TMI 1166 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Undervalued/Preferential/wrongful transaction - exclusion of rights in the Trade Mark “Gloster" from the assets of the corporate Debtor - it is argued that the dispute is in regard to the title over the registered trademark for which the jurisdiction vests with the District Court in terms of Section 134 of the Act, 1999 and the Adjudicating Authority cannot take a decision under Section 60(5) of the Code - HELD THAT:- It is found that the legislature has used the different language in Section 43 and 45 of the Code because in Section 43, the RP or the liquidator has to form an opinion whereas in Section 45 the RP or the liquidator has to examine and then determine that the transaction in question were undervalued during the relevant period. In the case of Anuj Jain [2020 (2) TMI 1700 - SUPREME COURT] the Hon’ble Supreme Court has also held that specific material facts are required to be pleaded if a transaction is sought to be brought under the mischief sought to be remedied by Sections 45/46/47 or Section 66 of the Code. It further said that it is expected of any resolution professional to keep such requirements in view while making a motion to the Adjudicating Authoritybut in any case the action could not have been taken under Section 43 and 45 without there being an application moved by the RP.
In the present case, the CoC was apprised in its 5th meeting that the forensic audit report found no preferential, undervalued, fraudulent or wrongful trading transactions nor it has found any related party preferential or fraudulent transaction whatsoever, therefore, only on the basis that the trademark was hypothecated for a bigger amount and has been assigned for lesser amount would not be a criteria for the purpose of declaring it to be undervalued transaction without there being sufficient material before the Adjudicating Authority to pass such an order, therefore, the finding recorded in this regard is not in accordance with law and thus reversed.
The present appeal is hereby allowed and the impugned order is set aside.
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2024 (1) TMI 1165 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Seeking withdrawal of CIRP - dismissal merely on the ground of commercial wisdom of the CoC without looking into spirit of the Code, which is meant for revival of the Corporate Debtor and not for recovery mechanism for the bankers - Section 12A r/w Regulation 30 A for CIRP Regulation 2016 - HELD THAT:- In view of provisions laid down under Section 12A of IBC, it is crystal clear that, once CoC is constituted, there is a mandatory requirement of 90% of the voting shares of the CoC in favour of the resolution for withdrawal of the CIRP of the Corporate Debtor and if the voting of the CoC is below 90% then the application of withdrawal cannot be allowed and hence it need to be dismissed. In the present case the Respondent No. 1 with 19.94% voting did not support 12A Application filed by the Corporate Debtor, hence the Adjudicating Authority rightly gave its verdict.
Section 12A of the Code is very clear that any withdrawal of CIRP by the Appellant need to have minimum voting support of 90% of the CoC and in the present case never met this threshold. Thus, the Adjudicating Authority could not direct for settlement to the HDFC in contravention of the Code.
On taking into consideration the various judgments where it has been held by the Hon’ble Supreme Court of India that commercial wisdom is non judiciable and there is extremely limited scope for judicial intervention.
There are no merit in the appeal - appeal dismissed.
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2024 (1) TMI 1164 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI - LB
CIRP - Rejection of Application seeking intervention - Locus to file application - infringement of rights - Approval of resolution plan (offer) of another party - HELD THAT:- The impugned order of the Adjudicating Authority clearly indicates that Adjudicating Authority proceeded to consider the objections raised by the Appellant to the process under which RP and CoC has approved the offer submitted by Respondent No.2. The Adjudicating Authority proceeded to examine the said contention on merits and has rejected the same by the impugned order. The fact that Adjudicating Authority proceeded to examine the contentions raised by the Appellant on merits itself indicate that objections raised by the Appellant required consideration. The Adjudicating Authority proceeding to examine the objections on merits and thereafter saying that Appellant has no locus is a contradiction in itself.
On looking into the facts and sequence of events, the Appellant has submitted offer after receipt of EOI and RFRP for Resolution Plan. The Appellant also revised its offer and had negotiation with CoC and RP, which is a fact established from the record. The RP and CoC interacted with the Appellant in respect of its offer and it appears that on the basis of the offer submitted by the Appellant Right of First Refusal was exercised by Respondent No.2 and consequently offer was received Company Appeal (AT) (Insolvency) No.1650 of 2023 10 from Respondent No.2, which find favour by the CoC. The Appellant, who participated in the process cannot be said to be a person having no locus to object the Application filed by the RP for approval of offer submitted by Respondent No.2.
Appeal disposed off.
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2024 (1) TMI 1021 - SUPREME COURT
Approval of Resolution Plan - conditions precedent pending before the NCLAT - adjustment of a Performance Bank Guarantee (PBG) - HELD THAT:- Conditional on compliance with the three conditions, SBI stated that it would be willing to withdraw both the company appeals which were pending before the NCLAT as well as the Civil Appeals which were pending before this Court, details of which were set out in the affidavit. The offer which was made by SBI on behalf of the lenders had to be complied with as it stood in the event that the SRA sought the benefit of the offer. According to the SRA, the PBG was liable to be released on adjustment in terms of the Resolution Plan. This is a matter which would have to await an adjudication by NCLAT in the pending appeal. The impugned order of the NCLAT, on the other hand, allowed the plea of the SRA for adjustment and consequential release of the PBG at the interlocutory stage.
Infusion of Rs 350 crores, as envisaged in the affidavit, could not have been substituted with a direction for adjustment of the PBG, at that stage. Infusion meant that the third tranche has to be paid in the same manner. Adjustment of the PBG was not permissible.
SBI has stated that the lenders have been saddled with huge recurring expenditure every month to maintain the remaining airline assets of the Corporate Debtor. The lenders have been embroiled in litigation before the NCLT and NCLAT with little progress on this ground towards implementing the resolution plan. Such a state of affairs cannot be permitted to continue interminably as it defeats the very object and purpose of the provisions of and timelines under the IBC. The timely resolution of insolvency cases is vital for sustaining the effectiveness and credibility of the insolvency framework. Therefore, concerted efforts and decisive actions are imperative to break the deadlock and ensure the expeditious implementation of the resolution plan.
The order dated 28 August 2023 of the NCLAT is modified in part and, hence, the permission which was granted to the SRA to adjust the last tranche of Rs 150 crores against the PBG - The NCLAT is requested to endeavour an expeditious disposal of the appeal by the end of March 2024.
The appeals are accordingly disposed of.
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2024 (1) TMI 979 - SC ORDER
Seeking to withdraw the present appeal - HELD THAT:- In view the first statement, the appeal is dismissed as withdrawn.
Thus, no comments or observations made concerning the second request.
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2024 (1) TMI 964 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH, NEW DELHI - LB
CIRP - Principles of natural justice - refusal to give another opportunity to the Appellant to file a reply and the right to reply involving settlement discussions - HELD THAT:- It is not needed to enter into emails sent by the parties since the Adjudicating Authority has given sufficient opportunity to the Appellant to file a reply which has not yet been filed, we see no error in the order impugned refusing to give another opportunity to Appellant to file a reply. However, it shall be open for the Appellant to make submissions before the Adjudicating Authority and with the leave of the Adjudicating Authority may also file written submissions.
There is no merit in the Appeal - The Appeal is dismissed.
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2024 (1) TMI 938 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI - LB
Violation of principles of natural justice - Failure to clear the fees and expenses of period IRP - Impugned Order passed issuing contempt notice and the explanation which was submitted in the Affidavit filed has not been adverted to - Wilful disobedience or the order - entitlement of fees of the IRP - HELD THAT:- There is no denial that in pursuance of order dated 01.12.2022, Rs. 5 Lakh has not been deposited. The stand taken by the Appellant is that said amount is towards fee and expenses for the IRP and expenses are being regularly paid. He submits that appellant is always ready to pay the reasonable fees to the IRP and the Affidavit which was filed on 28th November, 2023, explanation has not been adverted to. Had the Adjudicating Authority adverted to the Affidavit filed by the Financial Creditor on 28th November, 2023, there would not have been any observation that there has been wilful disobedience of the Order.
The ends of justice be served in setting aside the order dated 29th November, 2023 and remitting the matter to the Adjudicating Authority for hearing afresh considering the affidavit dated 28th November, 2023 filed by the Appellant and pass the order - appeal disposed off.
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2024 (1) TMI 900 - SC ORDER
Time Limitation - Date of default as stated in the petition under Section 7 of the Insolvency and Bankruptcy Code 2016 - HELD THAT:- Issue notice, returnable on 22 January 2024.
List the Civil Appeal on 22 January 2024.
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2024 (1) TMI 899 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , CHENNAI
Seeking extension of time for implementation of the Plan - seeking relaxation of timelines of a period more than 8 months to implement the Resolution Plan - HELD THAT:- Having regard to the scope and objective of Insolvency and Bankruptcy Code, 2016, to avoid Companies going into Liquidation, as Liquidation of the Corporate Debtor should be a matter of last resort; that the IBC recognizes a wider public interest in resolving corporate insolvencies and its object is not the mere recovery of monies due and outstanding; that the Successful Resolution Applicant has indicated its bona fide, at least prima facie at the present stage, to complete the implementation of the `Resolution Plan’; and therefore, this `Tribunal’ is of the considered view that powers under Rule 11, can be exercised in the facts of this matter and the aforenoted Proposal given by the Successful Resolution Applicant, be accepted.
Appeal disposed off.
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2024 (1) TMI 898 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , CHENNAI BENCH
Condonation of delay of 10 days, in filing of the present appeals - sufficient reasons for delay or not - Seeking a direction to the Respondent therein to place the resolution plan submitted by the him before the CoC for consideration alongwith other resolution plans - HELD THAT:- The undisputed facts are that both the appeals have been filed against the order dated 20.07.2023. The first appeal has been filed when the application filed by the Appellant for seeking direction to the Respondent therein to place the resolution plan submitted by the Applicant before the CoC for its consideration alongwith other resolution plans and further to stay the voting results of the resolution plan, which is put for voting pending disposal of the application filed by the Applicant has been dismissed and the second appeal has been filed by the Appellant because the application filed by the RP of the Corporate Debtor for approval of the resolution plan submitted by SRA was approved. Both the appeals have been filed on 28.08.2023. The first Appeal has been filed with the free certified copy made available on 01.08.2023 whereas the second appeal has been filed with a copy of order which is alleged to have been shared by the RP on 07.08.2023.
Three issues emerges in this case, firstly, the Appellant is guilty of suppressio veri and suggestio falsi who has made a totally wrong averments in para 6 and 17 of the grounds of appeal which has been declared and verified to be correct and also filed an affidavit in support of it because, firstly, the appeal is not within the limitation though a declaration is made in para 6 of the grounds of appeal that the Appeal is within the period specified in Section 61 of the Code and secondly the Appellant has obtained the certified copy (paid copy) applying the same for it on 01.08.2023 and received the same on 10.08.2023, therefore, the period of 10 days deserves to be excluded in terms of the Section 12 of the Act, 1963. Secondly, the Appellant has not even applied for the certified copy (paid copy) at all in filing of the appeals and even one application has been filed i.e. I.A. No. 1118 of 2023 for dispensing with the filing of the certified copy. Thirdly, the Appellant has taken totally a new stand in the application for condonation of delay when an objection was raised by the Respondents that the appeal is not within the period of limitation. In the application filed for condonation of delay, the ground taken is that the limitation is to be counted from the date when free certified copy was made available in so far as the first appeal is concerned whereas no such plea has been taken in so far as the second appeal is concerned in which the averment has been made that the appeal has been filed with the copy given by the RP and lastly even if there is a delay of 10 days for which the application has been filed for condonation of delay, no ground has been made out for the purpose of condoning the delay which would fall within the parameters of sufficient cause.
There are no merit in the present applications and the same are hereby dismissed.
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2024 (1) TMI 897 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , CHENNAI
Seeking Recall of the Order - Appeal was dismissed on the ground that there was a Debt and a Default and that the Section 7 Application filed by the Respondent / Financial Creditor was not barred by Limitation - HELD THAT:- Keeping in view that all the issues raised by the Applicant in the Recall Application has been addressed to in detail and this Tribunal, does not find any existence of Fraud, Collusion, an Error or a Mistake, nor any Ignorance of any fact that a Necessary Party, had not been served at all or had expired or that the Estate was not represented and therefore, there are no grounds at all to entertain this Recall Application.
This Tribunal is of the considered view that in the garb of this Recall Application, the Applicant is trying to reargue the entire matter on Limitation, Acknowledgement, under Section 18 of the Limitation Act, 1963, Jural Relationship and the Locus.
Keeping in view the grounds raised and this Tribunal’s limited Jurisdiction, there are no substantial reasons to entertain this Recall Application and hence, the same is dismissed accordingly.
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2024 (1) TMI 896 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Penalty u/s 65 of the Insolvency and Bankruptcy Code, 2016 on assenting CoC members - assenting CoC members jointly voted in favour of the liquidation of the CD without even exploring the possibility of resolution of the Corporate Debtor - HELD THAT:- There is no dispute that the CoC took a decision for liquidation of the CD after holding five meetings and by voting share of 88.48 per cent which meets the criteria laid down in Section 33(2) of the Code. There is an error in the approach of the Adjudicating Authority that for the purpose of taking a decision regarding the liquidation of the CD, the CoC has to complete all the steps regarding resolution of the CD because it would be against the spirit of Section 33(2) and explanation appended to it wherein the legislature has used the word any time twice i.e., firstly, in Section 33(2) and secondly, in the explanation of Section 33(2) of the Code that the CoC has the jurisdiction to pass the order of liquidation of the CD, approving it by not less than sixty six per cent of the voting share, but it should be before the confirmation of the resolution plan.
In the case of Sunil S. Kakkad [2020 (8) TMI 392 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI], this Court has categorically framed a question as to whether the RP, with the approval of the CoC with sixty six per cent vote share, directly proceed for the liquidation of CD without taking any steps for resolution of the CD. In the said case, there were three meetings of CoC in which without making endeavour for inviting EOI, the CoC unanimously resolved to liquidate the CD and that issue came for adjudication before this Court in which while referring to Section 33(2) and the explanation appended thereto it has been ordered that the CoC has the power to liquidate the CD before confirmation of the resolution plan.
The Adjudicating Authority has not given any reason for forming an opinion much less prima facie that it was a case of malicious intent on the part of the Applicant/RP with the connivance of assenting members of CoC to whom the show cause notice was given and finally the provision of Section 65 has no application because it would apply if the application is filed for the purpose other than liquidation.
The impugned order does not deserve to survive and hence, the present appeal is allowed.
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