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Insolvency and Bankruptcy - Case Laws
Showing 341 to 360 of 8672 Records
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2023 (11) TMI 481
Initiation of CIRP - Application u/s 7 admitted by NCLT - Period of limitation - Date of default - bar on account of Section 10A of IBC - the impugned order challenged on the ground that as the loan recall notice dated 20.08.2020 fell within the period of Section 10A of the Code, the Application under Section 7 was barred - HELD THAT:- On looking into the date of default as mentioned in paragraph 1.3 of the impugned order, it is clear from the Table that till February 2020, admitted amount in default was Rs.10,51,94,998/-. The emphasis made by learned Counsel for the Appellant is on the notice dated 28.08.2020, which is loan recall notice. The submission of learned Counsel for the Appellant is that loan recall notice having been issued on 20.08.2020, the entire loan became due only consequent to loan recall notice, which loan recall notice having been issued on 20.08.2020, i.e., during 10A period, the application was clearly barred. Loan recall notice dated 28.08.2020 was addressed to Corporate Debtor as well as the Personal Guarantor. The contention advanced by the learned Counsel for the Financial Creditor to counter the above submission is on the basis of Clause 8.1 of the Loan Agreement - There is no dispute between the parties that there is admitted default in payment of interest for two consecutive months prior to 10A period, which is apparent from the Chart as extracted in paragraph 1.3 of the impugned order. Even if, no notice dated 28.08.2020 was issued by the Financial Creditor, the principal amount also became due on occurring of event of default as per Clause 8.1.
The bar under Section 10A, does not apply when the default is committed prior to 10A period. The learned Counsel for the Respondent has rightly placed reliance on the judgment of this Tribunal in NARAYAN MANGAL VERSUS VATSALYA BUILDERS & DEVELOPERS PVT. LTD [2023 (8) TMI 1378 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] where after noticing the Section 10A and the judgment of the Hon’ble Supreme Court in Ramesh Kymal v. siemens Gamesa Renewable [2021 (2) TMI 394 - SUPREME COURT] where it was held that The Section 10 A provides that no application/proceedings under Section 7,9 & 10 is to be initiated for a default which is committed during Section 10A period. What is bar is initiation of proceedings when Corporate Debtor commits default in Section 10 A period. If the default is committed prior to Section 10A period and continues in the Section 10 A period the initiation of proceeding is not barred.
Thus, the application filed by the Financial Creditor under Section 7 was not hit by Section 10A. Furthermore, it is admitted case of the parties that prior to commencement of 10A period, the default upto February 2020 was approximately Rs.10,51,94,998/-, which is much beyond the threshold provided for Section 7 Application - there are no good ground to interfere with the impugned order of the Adjudicating Authority admitting Section 7 Application - appeal dismissed.
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2023 (11) TMI 420
Seeking direction to Respondent to adhere to the terms of Agreement dated 03.03.2010 and supply immediately the 26 WTGs lying with the Corporate Debtor against the advance payment already made by the Applicant - HELD THAT:- From the facts brought on record, it is clear that the RP is claiming payment of dues of about Rs.75 crores from the Appellant, for which arbitration proceedings have been initiated. When the Corporate Debtor has not received the dues from the Appellant for which proceedings are pending, the decision taken by the RP, not to handover the 26 WTGs is as per the wisdom of RP, who is to run the Corporate Debtor as a going concern. The Operational Creditor having filed the claim, which has been already admitted for an amount of Rs.132 crores and odd, the same has to be dealt with as per the CIRP and the Appellant has no right to claim that 26 WTGs lying in the inventory of the Corporate Debtor should be handed over to the Appellant.
The decision of the RP refusing to handover 26 WTGs lying with the Corporate Debtor, is a decision which RP is entitled to take as per the scheme of the Code, which decision cannot be said to be contrary to any provisions of the Code or in breach of any right of the Appellant. The Adjudicating Authority has not committed any error in rejecting the IA filed by the Appellant.
There are no error in the order of the Adjudicating Authority, rejecting the IA filed by the Appellant - appeal dismissed.
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2023 (11) TMI 377
Maintainability of application 9 application - failure in remitting the funds - Corporate Debtor showed his readiness and willingness to make the entire payment.
Operational Creditor submits that the debt of the Operational Creditor having been acknowledged by the Corporate Debtor, which is due and has not been paid by the Corporate Debtor inspite of repeated assurances, the Adjudicating Authority committed error in not admitting Section 9 Application.
HELD THAT:- The present is not a case where Adjudicating Authority has directed the Corporate Debtor to settle the dispute with the Operational Creditor. It was the Corporate Debtor, who acknowledged and showed his readiness and willingness to make the entire payment. The judgment of the Hon’ble Supreme Court in E.S. Krishnamurthy [2021 (12) TMI 683 - SUPREME COURT] does not help the Appellant-Corporate Debtor in any manner.
The next judgment of this Tribunal relied by learned Counsel for the Corporate Debtor is judgment of this Tribunal in Praveen Kumar Mundra vs. CIL Securities Ltd. [2019 (8) TMI 783 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI], where the Appeal preferred against the order, rejecting Section 9 Application was heard. The Appellate Tribunal in the above case in paragraph 9 has upheld the order of the Adjudicating Authority on the ground that the Appellant has initiated CIRP with fraudulently and malicious intent, which judgment has no application in the present case.
Present is a fit case to admit when inspite of several promises and acknowledgement, the Corporate Debtor failed to pay the outstanding debt. The Corporate Debtor also has not complied with the order of the Adjudicating Authority directing for depositing the amount equivalent to Indian Rupee in the Court, instead it cited certain regulatory procedure in obtaining the permission for remitting the amount, which order was also not complied by the Corporate Debtor - the Adjudicating Authority ought to have admitted Section 9 Application.
Appeal disposed off.
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2023 (11) TMI 376
Direction to Respondent to handover the asset of the Corporate Debtor, which is under the possession of Respondent since last 2 years - direction to respondent to deposit the usage charges for the above mentioned asset in the account of Corporate Debtor - HELD THAT:- The resolution plan of the Corporate Debtor has been approved on 09.08.2021 by CoC and 14.03.2022 by the NCLT. The appellant could filed its claim after the approval of plan with the Committee of Creditors, hence, the same has not been considered.
The present appeal is concerned with the two directions issued in paragraph (v) as quoted above. In so far as the first direction the machine has already been handed over to the Corporate Debtor, hence, that order has been complied with - In so far as the direction to pay usage charges it is clear that there has been no rental agreement between the parties for any usage charges and machine was given to the operational creditor by the director of the Corporate Debtor in lieu of the certain dues which Corporate Debtor owe to the appellant which is reflected in letter dated 08.06.2021.
The appellant could not filed its claim in the corporate insolvency resolution process of the Corporate Debtor, hence, his dues do not find any reflection - the second direction issued by Adjudicating Authority for payment of Rs. 48 lakhs is unsustainable and is set aside.
Appeal allowed in part.
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2023 (11) TMI 375
Recovery of dues - first charge on the assets of the Corporate Debtor - Seeking direction to the Resolution Professional (RP) to take into account the priority of distribution of the Plan realizations and taking into account the priority assigned to the dissenting Financial Creditor, who are also secured creditors - HELD THAT:- This Tribunal after taking into consideration the judgment in India Resurgence Arc Private Limited Vs. M/s. Amit Metaliks Limited & Anr. [2021 (6) TMI 684 - SUPREME COURT], upheld the judgment of the Adjudicating Authority, who rejected the IA, which was filed by SIDBI for distribution as per security interest.
In the case of Vistra [2023 (5) TMI 303 - SUPREME COURT], the claim of Financial Creditor was not admitted. Whereas in the present case the debt of the Appellant was admitted. In Vistra, the claim of Vistara to be secured creditor was rejected as has been noticed in paragraphs 2 to 10 of the judgment itself. Whereas, the Appellant in the present case has been recognized as a dissenting Financial Creditor and was part of the CoC and in the present case, the CoC by its decision has approved both the distribution mechanism as well as the Resolution Plan, which proposed distribution based on proportion of admitted claim. Vistra was never treated as secured creditor or given its minimum entitlement as secured creditor as per Section 53(1). The judgment of Vistra is a judgment of the Hon’ble Supreme Court, which is referable to Article 142 of the Constitution, which jurisdiction was exercised and ultimately the Hon’ble Supreme Court has held Vistra to be a secured creditor. The present is a case where ICICI Bank was accepted and recognized as Financial Creditor and its full claim was accepted and distribution to the Appellant was as per Section 30, sub-section (2)(b) of the IBC.
Thus, no error has been committed by the Adjudicating Authority in rejecting the application - appeal dismissed.
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2023 (11) TMI 316
Jurisdiction of this Court under Article 226 of the Constitution of the India for recovery of outstanding dues - proceedings in respect of the same are already pending consideration before the NCLT - HELD THAT:- The learned Single Judge dismissed the petition holding that it was not open for the Petitioner to invoke the jurisdiction of this Court under Article 226 of the Constitution of the India for recovery of outstanding dues, as the proceedings in respect of the same are already pending consideration before the NCLT.
It has not been disputed, that the issue of remittance of outstanding dues from the Department of Post is currently pending before the NCLT. Further, notice already stands issued to Department of Posts in respect of the application moved qua the dues. As such, we fail to understand the reasons holding back the Appellant from campaigning its cause before the NCLT - no fault can be found in the view taken by the learned Single Judge.
There are no reason for this Court to exercise its extraordinary writ jurisdiction at this stage to parallelly consider the question of realisation of the NRRA in-question. That apart, the issue of remittance of outstanding dues by the Department of Posts is interconnected to the allegations of violation of Section 37(3) of the Act. Given the former is yet to be decided by NCLT, the allegations of violation of the Act not delved upon.
There is no merit in the present appeal - Appeal dismissed.
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2023 (11) TMI 314
Rejection of section 9 application - rejection on the ground of pre-existing dispute - appellant submits that Respondent never disputed the amount claimed by the Appellant, which is clear from emails between the parties.
HELD THAT:- The Adjudicating Authority has noted the termination of Work Order on 02.01.2019 whereas the Demand notice under Section 8 was issued on 20.05.2019. It is already noticed the demand notice issued even prior to Section 8 notice to the Corporate Debtor, one of such notice is dated 28.02.2019, which was filed along with the Section 9 application which was promptly replied and refuted by the Corporate Debtor and in the detailed reply which has been submitted by the Corporate Debtor all claims were disputed. It was clearly stated that no amount was due and payable to the Operational Creditor.
The Adjudicating Authority did not commit any error in holding that there is a pre-existing dispute. When the Corporate Debtor even prior to issuance of demand notice has denied liability to pay, pre-existing dispute was there - there are no ground to interfere with the impugned order rejecting Section 9 application.
Appeal dismissed.
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2023 (11) TMI 313
Dismissal of application for initiation of CIRP - time limitation under Section 61(2) of the IBC, 2016 - default occurred in the period excluded as per the provisions of Section 10A of the IBC, 2016 - invocation of Corporate Guarantee - HELD THAT:- In the Judgement of this Tribunal in the case of VIKRAM KUMAR, PROPRIETOR VERSUS ARANCA (MUMBAI) PRIVATE LIMITED [2023 (11) TMI 51 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH, NEW DELHI], it was held that the date of default in the case of the Guarantor is the date on which the Guarantee was invoked.
By its action of depositing the security cheques and issue of Notice dated 31.01.2022, the Financial Creditor, the Appellant herein, is deemed to have invoked the Corporate Guarantee in the month of January, 2022, which is to be considered as the date of default, and which lies beyond the period prohibited under Section 10A of the IBC, 2016.
In the light of the detailed discussion, it is concluded that the date of default lies beyond the prohibited period prescribed under Section 10A of the IBC, 2016. The Adjudicating Authority is directed to hear and decide the Application of the Financial Creditor under Section 7 by treating it as a case not covered by the provisions of Section 10A of the IBC, 2016.
Considering the loss of time, it is expected that the said Application will be decided by the Adjudicating Authority expeditiously - appeal allowed.
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2023 (11) TMI 267
Doctrine of promissory estoppel - Resolution Plan, which is submitted by Resolution Applicant and approved by the CoC in its commercial wisdom - RP has admitted its claim of 10 flats - HELD THAT:- Acceptance or admission of the claim of a Financial Creditor including homebuyers is one aspect of the scheme under the IBC. Subsequent steps in the IBC including the preparation of Resolution Plan are based on the list of creditors, admitted claims of the creditors etc. as per the scheme of the IBC, but the principle of promissory estoppel cannot be pressed against the Resolution Applicant, who submits Resolution Plan on the basis of relying on the Information Memorandum, the list of creditors and other aspect of the matter.
The Resolution Applicant has not extended any promise to the Financial Creditors of the Corporate Debtor that the claim submitted by Financial Creditor or any other creditor shall be accepted in toto. The mandatory contents of the Resolution Plan are laid down in the CIRP Regulations, 2016. If a Resolution Plan is compliant with the provision of Section 30, sub-section (2) of the IBC and the provisions of the Regulations, 2016, the Plan cannot be faulted on the ground of the promissory estoppel, which the Appellant is pressing against the Resolution Professional, who has admitted the claim.
The submission of the Appellant based on the doctrine of promissory estoppel cannot be pressed into service in reference to the Resolution Plan, which has been submitted by a Resolution Applicant and approved by the CoC in its commercial wisdom.
The Adjudicating Authority did not commit any error in rejecting the objections filed by the Appellant to the Resolution Plan. There is no merit in the Appeal. The Appeal is dismissed.
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2023 (11) TMI 266
Rejection of the Resolution Plan approved by the Committee of Creditors (CoC) - HELD THAT:- The clauses contained in Resolution Plan referred only empower the Resolution Applicant/ Corporate Debtor to alter the layout and the building plan including the height, location and common area. It goes without saying that the said alteration and modification has to be taken after obtaining necessary approval from the Competent Authority which fact is clearly mentioned in Clause 8.20. The clauses cannot be read to mean that the Resolution Plan empowers the Resolution Applicant to alter the layout and modifying the building plan on its own. No exception can be taken to the said clauses.
The approval of the CoC of the Resolution Plan cannot be faulted on the ground that MSP has been fixed @ Rs.33,000/- per sq. ft. which is different from the amount at the rate of Rs.13,500/- to Rs.21,000/- per sq. ft. which was initially promised by the Corporate Debtor. The clause in the Resolution Plan effectively modify all earlier contract between the parties and under the Scheme of the IBC, it is fully permissible to provide for new arrangement and clauses for revival of the Corporate Debtor which is the object of the IBC.
The submission of the Appellant is that CoC has not exercised its commercial wisdom and has not looked into the relevant cost for construction and fixation of the MSP of Rs.33,000 per sq. ft. When the plan is approved with requisite vote, it has to be assumed that the said approval is in the commercial wisdom. More so, fixation of MSP for allotment of flats to homebuyers is a commercial decision. Further, escalation for prices of allotment of flats can very well be undertaken to revive the Corporate Debtor and Appellant cannot insist that the Resolution Applicant should also make the allotment of flats on the same price on which the Corporate Debtor has promised to make.
There are no substance in any of the submissions raised by the Appellant challenging the approval of the Resolution Plan by the CoC - appeal dismissed.
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2023 (11) TMI 265
Principles of natural justice - CIRP - Corporate debtor in liquidation - Appellant is situated in the property of Corporate debtor - mis-appreciation of the facts by the Adjudicating Authority in concluding that the Appellant was actually served and did not choose to appear - HELD THAT:- The entire case of the Appellant, set up in the appeal is that the notice of the application I.A. No. 836 of 2021 should have been served at the registered office address instead of branch address. The Appellant has not denied the fact that the reply to the notice dated 26.04.2021 served by the Liquidator at the branch address was given by the branch of the Appellant. Meaning thereby, the Appellant knew about the proceedings initiated by the Liquidator which was triggered with the issuance of demand notice. Otherwise also from the perusal of the evidence on record, it is clear that service of the notice at the branch office was effected, therefore, it does not lie in the mouth of the Appellant to raise an issue that service was not effected at the registered office and in this regard it cannot take advantage of the averments made in the lease deed about the service of notice at the address given in the lease deed when it had been reacting to the notices, issued to and received at branch office of the Bank.
This is not a fit case for interference - appeal dismissed.
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2023 (11) TMI 264
CIRP proceedings - right to proceed against the subsidiary company as well even if the holding company is in CIRP - HELD THAT:- In the light of the judgments of the Hon’ble Supreme Court in the matter of Jaypee Kensington Boulevard Apartments Welfare Association & Ors. (2021 (3) TMI 1143 - SUPREME COURT) and this Tribunal in Alok Industries (supra), we are of the clear view that now there is no bar to hear the section 7 application filed by Yes Bank, which is now being pursued by its assignee J.C. Flowers Asset Reconstruction Pvt. Ltd., which can be considered and adjudicated upon.
The present appeal has been filed by the Appellant being aggrieved that his application has kept in abeyance by recording reasons which are not germane to the issue involved but once the proceedings has again been started, it is deemed appropriate to dispose of this appeal with the observation that the finding recorded in the impugned order shall not come in way either of the parties for the purpose of decision of Section 7 application and all the issues shall remain open.
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2023 (11) TMI 223
CIRP - Liquidation proceedings initiated - Right of the Operational Creditor (Petitioner) - Petitioner alleged Misconduct in the performance as an Insolvency Resolution Professional - seeking appropriate direction restraining Respondent No. 3 (now Respondent No. 2) from functioning as a Liquidator of the Corporate Debtor - HELD THAT:- Respondent No. 1/Board is the authority to regulate the functioning of the Insolvency Professionals and the Board comprises of experts in the field who have been appointed by the Central Government to carry out the functions specified under Part IV of the IBC. It is well settled that Courts do not sit as an Appellate Authority over the decisions taken by the experts.
The Apex Court in MANSUKHLAL VITHALDAS CHAUHAN VERSUS STATE OF GUJARAT [1997 (9) TMI 618 - SUPREME COURT] has observed that The Court cannot substitute its judgment for the judgment of administrative authorities in such cases. Only when the action of the administrative authority is so unfair or unreasonable that no reasonable person would have taken that action, can the Court intervene.
This Court does not find that the decision making process adopted by the Board or the decision based on the final report is perverse or is contrary to law or against public interest, which would warrant interference from this Court under Article 226 of the Constitution of India. Court while exercising its jurisdiction under Article 226 of the Constitution of India while examining any enquiry report does not go into excruciating detailed facts nor does it substitute its conclusion to the one arrived at by the fact finding body. If the process adopted in the enquiry is fair, reasonable and transparent then the Writ Court does not interfere with the findings to substitute its own conclusion to the one arrived at by the authority simply because another view is possible.
Petition dismissed.
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2023 (11) TMI 174
Sufficient time not provided for filing the reply - grievance of the Appellant is that the petition which runs into 2059 pages, a reasonable time was required for filing the reply and on 26.10.2023 time was allowed for reply and matter was adjourned to 30.10.2023 which was insufficient for filing a reply - HELD THAT:- In facts of the present case, there are no reason to entertain the Appeal and keep it pending. Learned Counsel for the Appellant submits that the NCLT, Mumbai is closed from 11.11.2023 to 19.11.2023 and shall be reopening only on 20.11.2023. In facts of the present case, in the ends of justice be served in disposing the Appeal by giving liberty to the Appellant to file their reply on re-opening day i.e. on 20.11.2023.
The Adjudicating Authority is requested to fix 30.11.2023 as date in the Company Petition to hear the parties and decide in accordance with law - appeal disposed off.
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2023 (11) TMI 173
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.
Non-inclusion of the Appellant in the Committee of Creditors - Whether the Appellant is not a related party and was entitled to vote in the Committee of Creditors? - HELD THAT:- In the financial statement of the Corporate Debtor, Appellant has been reflected as shareholder on the date of commencement of the CIRP. The Registrar of Companies has not recorded transfer of shares as per the Share Purchase Agreement. Share Purchase Agreement dated 31.10.2018 after the Settlement Agreement between the parties could not be implemented, which is a fact on record. The Appellant itself has filed application for contempt against the Vira Group before the Hon’ble Supreme Court alleging the violation of order of Hon’ble Supreme Court which contempt was permitted to be withdrawn with liberty to the Appellant to take such proceedings as may be advised. Filing of contempt itself recognises that Memorandum of Settlement dated 31.10.2018 was breached - The Resolution Professional proceeded to classify the Appellant as related party on account of declaration of the Appellant itself in the claim form that it is a related party. The shareholding of the Appellant still continues in the Corporate Debtor which is not yet been transferred as per the Settlement Agreement - there are no error in the decision of the Resolution Professional classifying the Appellant as related party and not giving the Appellant a seat and voting share in the Committee of Creditors.
Whether the Vira Group being related party consequently Respondent No.3 was also related party and as Director of Kalpataru Advisory Services Pvt. Ltd. could not be member of the Committee of Creditors or voted in the Committee of Creditors? - HELD THAT:- There is no material on record that resignation of Respondent No.3 was with intend to be member of the Committee of Creditors. There being no material or pleading to come to the conclusion that KASPL still continues to be related party by virtue of Section 5(24)(d) whereas after 19.02.2019, Mr. Pratik Jayesh Vira does not continue as Director of the Corporate Debtor and CIRP against the Corporate Debtor commenced on 11.08.2020, more than a year after such resignation. With regard to 16% shareholding of KASPL, learned counsel for the Respondent No.3 has submitted that to attract Section 5(24)(j), the KASPL had to control more than 20% of voting rights in the corporate debtor on account of ownership or a voting agreement. It has only 16% shareholding in the Corporate Debtor, hence, cannot be held as related party as per Section 5(24)(j) - The submission of the Appellant objecting participation of KASPL on the basis of its shareholding which in view of the definition clause 5(24)(j) does not fulfils it to be related party, hence, participation of KASPL in voting cannot be faulted. As noted above, transfer of shareholding in favour of the Vira Group could not materialise.
Whether the Appellant is entitled to challenge the Resolution Plan which was approved by majority of creditors in class i.e. homebuyers? - HELD THAT:- From the facts which have been brought on the record, it is clear that homebuyer as a class have approved the Resolution Plan. Voting results on the plan have been brought on the record which clearly shows that the homebuyers as a class had approved the Resolution Plan. Appellant, who is a dissatisfied minority, a single homebuyer has to sail alongwith the view of the majority in terms of the scheme of IBC - the Adjudicating Authority is agreed upon that Appellant as a class of homebuyers cannot be allowed to challenge the Resolution Plan which has received approval of class of homebuyers on the basis of majority of votes of homebuyers.
Whether the categorization of the homebuyers in class as ‘Affected’ and ‘Unaffected’ homebuyers is violative of Section 30(2)(e) and the Resolution Plan deserve to be set aside on this ground alone? - HELD THAT:- The different treatment of two sets of homebuyers in view of the allotment to the homebuyer with/without NOC of the Mortgagee has rational for separate treatment and the submission of the Appellant cannot be accepted that all homebuyers should be treated in the same manner in the Resolution Plan - This Tribunal noticing that there was discrimination in payment to the Operational Creditors inter se, has directed that Operational Creditors be paid the same amount. In the above case, the Adjudicating Authority has rejected the Resolution Plan on the ground that there is differentiation in payment of Operational Creditors inter se.
The commercial wisdom of the Committee of Creditors, which has approved the Resolution Plan under which different treatment has been given to ‘Affected Homebuyers’ and ‘Unaffected Homebuyers’, cannot be faulted - there are no grounds made out to challenge the approval of the Resolution Plan.
Thus, no error has been committed by the Adjudicating Authority in rejecting the application - Register of the Corporate Debtor cannot be rectified on application filed by the Appellant and Appellant in fact by the application prayed for specific performance of Memorandum of Settlement which admittedly could not be implemented due to various reasons which are not necessary to be noted for the purposes of this case - appeal dismissed.
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2023 (11) TMI 111
Admission of Section 9 application - existence of pre-existing dispute or not - time limitation - HELD THAT:- Along with the Demand Notice, Annexure statement of showing calculation of total debt has been mentioned. On looking into the invoices and the due date, Demand Notice was issued after expiry of due date in all the invoices. The statement filed along with the Demand Notice clearly indicates that most of the invoices were of June 2019; one was of 04.07.2019 and one was of 08.07.2019. Thus, 45 days of credit period came to an end with regard to all invoices which are part of the Demand Notice. Thus, the submission of the Appellant that no amount became due cannot be accepted.
Insofar as the submission that the cheques which were submitted in the Bank by the Operational Creditor were security cheques, these are the issues which need not be adverted to the present proceedings. Section 138 proceedings have already been initiated and that can be looked into in the said proceedings.
There are no error in the order of the Adjudicating Authority admitting Section 9 Application. There is no merit in the Appeal - appeal dismissed.
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2023 (11) TMI 110
Admissibility of section 7 application - time limitation - HELD THAT:- The Adjudicating Authority did not commit any error in allowing the Amendment Application permitting the State Bank of India to amend the Part IV of Form-1 in so far as date of default is concerned - With regard to the observation made in Para 12, it is observed that it was for the purposes of allowing the Amendment Application.
At the time of hearing of the Section 7 application filed by the State Bank of India, the Adjudicating Authority shall consider the submissions of the parties on the question of limitation being uninfluenced by any observation made while allowing the Amendment Application. With these observations, the appeal is disposed off.
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2023 (11) TMI 109
Assignment of debt under Sections 43, 45, 50 & 66 of IBC, 2016 before the adjudication of Avoidance/PUFE of proceedings by Liquidator - HELD THAT:- The issue which is sought to be raised by the appellant need not be entertained and decided in the appeal which has been filed by the Liquidator.
The appeal is dismissed.
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2023 (11) TMI 108
Seeking direction from the Adjudicating Authority to accept the claim as a Financial Debt under the provision of Section 5(8) of I&B Code - Appellant submits that since the Application for approval of Resolution plan is still pending before the Adjudicating Authority, the order can be passed to consider the claim of the Appellant - HELD THAT:- The Hon’ble Supreme Court in recent Judgment in M/S. RPS INFRASTRUCTURE LTD. VERSUS MUKUL KUMAR & ANR. [2023 (9) TMI 516 - SUPREME COURT] has already taken the view that after approval of the plan by the CoC, the claims cannot be entertained. There is no dispute with the facts that the claim was filed by the Appellant after approval of the plan by the CoC. The Appellant has also not been able to show that claim of the Appellant was reflected in the records of the Corporate Debtor.
Thus, no error has been committed by the Adjudicating Authority rejecting I.A. There is no merit in the Appeal, the Appeal is dismissed.
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2023 (11) TMI 107
Validity of order if Initiation of CIRP - After the final hearing of the matter, ITAT reserved the order for passing - Thereafter, appellant prayed for recall the reserved order and re-hear the matter on the basis of new facts - Request of the appellant was rejected - Whether rejection of application caused serious miscarriage of justice to the Appellant which warrants the setting aside of both the impugned orders?
HELD THAT:- The Appellant was fully aware of the assignment of debt by the original Financial Creditor to the Respondent No.1 which is amply evident from the fact that they had themselves chosen to send the OTS proposal to Respondent No.1 on 21.10.2016 instead of sending the same to the original Financial Creditor. The OTS proposal is placed at page 287 of the Appeal Paper Book (APB). It is, therefore, clear that the Appellant/Corporate Debtor was not only aware of the assignment of the debt but had accepted and acknowledged this fact by sending the OTS proposal to the assignee. Moreover, the issue of assignment deed was never raised by the Appellant during the hearing of the main petition or at any stage prior to reserving the matter for orders.
It is a well settled proposition of law that the two stages of reserving of judgment and pronouncement of judgment are in a continuum with no hiatus or gap as such in the two stages. That being the well accepted and time-tested practice in court proceedings, subsequent pleadings filed by way of an I.A. after the judgement is reserved is normally not entertained for reasons of procedural propriety - There is no material on record to show that this debt had been liquidated by the Corporate Debtor. That being so, the debt was continuing and there was a default in repayment and nothing on record controverts that position. The Corporate Debtor having accepted the assignment agreement in their OTS proposal has no ground to deny knowledge of the fact that the Respondent No.1 had stepped into the shoes of the original Financial Creditor and therefore it has been correctly concluded by the Adjudicating Authority that the loan facility acknowledged in the name of the Financial Creditor in the balance sheet is to be construed as acknowledgement of debt qua the Appellant.
Since in the facts of the present case, a debt has arisen which is due and payable by the Corporate Debtor and a default has occurred, admission of Section 7 application cannot be obfuscated by raising technical pleas and that too after hearing in the main petition stood concluded and matter was reserved for hearing.
There are no convincing reasons to interfere with either of two impugned orders - Appeal dismissed.
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