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Insolvency and Bankruptcy - Case Laws
Showing 421 to 440 of 8711 Records
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2023 (10) TMI 450 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH, NEW DELHI
Condonation of Delay in filing Appeal - Certified Copy was prepared on 27.04.2023 and was delivered on 03.05.2023 - present Appeal was e-filed on 10.05.2023.
HELD THAT:- Sub- Rule (2) of Rule 22 of the National Company Law Appellate Tribunal Rules, 2016, regarding presentation of Appeal provides that every Appeal shall be accompanied by a Certified Copy of the Impugned Order. NCLAT Rules framed under Section 469 of the Companies Act, 2013 also bind the litigants under the IBC. The litigant’s efforts to apply for a Certified Copy before filing Appeal cannot be faulted.
It is clear from the provision of Section 12(2) that the period taken in obtaining the copy of the Order appealed against is to be excluded in calculating the limitation period in filing for any legal proceedings.
Excluding the period spent in obtaining Certified Copy of the Impugned Order, the present Appeal has been filed within the period of 30 days. Considering the provisions of Section 12(2) of the Limitation Act, 1963, the delay in filing of the company appeal condoned, by allowing benefit of exclusion of period spent in obtaining paid Certified Copy of the Order from AA (National Company Law Tribunal, New Delhi).
Aplication allowed.
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2023 (10) TMI 356 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Jurisdiction of Adjudicating Authority to pass an order in regard to payment of pre-CIRP dues during the CIRP - HELD THAT:- Though the issue raised by the Appellant may be attractive but in the present case, no such issue survives after the order dated 15.05.2023 is passed, therefore, the same is dismissed.
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2023 (10) TMI 293 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Liquidation proceedings - waterfall mechanism - rejection of claim of appellant - appellant is Financial Creditor or not - claim reflected in the Balance Sheet.
It is submitted that even though the claim of the Appellant was rejected in the liquidation proceeding but since it was reflected in the balance sheet, Appellant is a Financial Creditor.
HELD THAT:- The claims of all creditors are to be considered in the liquidation proceedings and examined by the Liquidator and in event of any dispute, matter is required to be adjudicated by the Adjudicating Authority. There is no dispute to the fact that the claim was filed by the Appellant as Financial Creditor which stood rejected by the Liquidator as well as the Adjudicating Authority. The rejection of the claim of the Appellant clearly lead to the conclusion that the claim cannot be accepted in the liquidation proceedings nor Appellant is entitled for any claim in the water fall mechanism.
Present is a case where a scheme was submitted in the liquidation proceeding in which scheme also the payment to the Appellant has been shown as a ‘nil’ and the scheme was approved by SIDBI who according to the Liquidator was a 100% Financial Creditor. When the Appellant’s claim was rejected, he cannot claim that he is a Financial Creditor whose consent was required for approval of the scheme - It is after the reflection in the balance sheet that in the liquidation proceeding, the claim was filed by the Appellant and adjudicated rejecting the claim of the Appellant. The proceeding which undertook in the liquidation proceedings cannot be ignored nor can be washed out only on the ground that in the balance sheet of the Corporate Debtor the name of the Appellant was reflected. Proceeding in the adjudication which culminated in the rejection of the claim has to be given effect to in the liquidation proceeding.
The scheme was also a part of the liquidation proceeding, hence no error has been committed by the Adjudicating Authority rejecting the application of the Appellant - Appeal dismissed.
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2023 (10) TMI 239 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Correctness of admitting section 7 application - allegation is that Section 7 application has been filed with the help of fabricated and manufactured documents as well as by suppression of material facts - HELD THAT:- It is trite law that under the IBC once a debt becomes due or payable, in law and in fact, and there is incidence of non-payment of the said debt in full or part thereof, CIRP may be triggered by the Financial Creditor as long as the amount in default is above the threshold limit. It is also well accepted that debt means the liability in respect of a claim and claim means a right to payment even if it is disputed.
When financial debt is undisputedly established and default in payment is also crystal clear, it is opined that the Adjudicating Authority did not commit any error in admitting the Section 7 application.
There are substance in the contention of Respondent No.1 that the IA was not only heard by the Adjudicating Authority but was heard before pronouncing the order in the main company petition. It is also borne out from the orders that both parties were present and had placed their respective contentions / arguments before the Adjudicating Authority in the matter of the IA.
It is an undisputed fact that there was disbursal of funds by the Financial Creditor to the Corporate Debtor. Receipt of this amount by the Corporate Debtor has not been controverted by the Appellant. Neither has any claim been made that this entire sum was repaid by the Corporate Debtor. That being the case there arises no doubt in our mind that there was a debt on the part of the Corporate Debtor qua the Financial Creditor which remained unpaid. There is no infirmity in the findings of the Adjudicating Authority that the Financial Creditor having successfully proved the financial debt and default on the part of the Corporate Debtor, Section 7 application has been admitted.
There are no error in the order impugned passed by the Adjudicating Authority admitting the Section 7 application - there is no merit in the Appeal - appeal dismissed.
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2023 (10) TMI 238 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Challenge to CIRP process after resolution plan was approved - seeking clarification from the Resolution professional as to whether the shareholding of Shubhkamana Buildtech Private Limited in two companies namely Rudra Buildwell Projects Private Limited and JSS Buildcon Private Limited has been taken into consideration while assessing the assets and liabilities of the Corporate Debtor? - HELD THAT:- The Information Memorandum must have been prepared in the CIRP and Form G was issued for Resolution Plan including details of the assets - It is opined that at this stage no relief can be granted on the prayer as made in the application.
Appellant has prayed for providing a copy of the Resolution plan approved by the Adjudicating Authority - HELD THAT:- Suffice it to say that the Appellant was not part of the CIRP process. He himself submitted that in 2014 he resigned as Director. In so far as his submission that he is shareholder of the Corporate Debtor, Resolution Plan having been approved what are the rights of different stakeholders is subject matter of the plan.
In the case of ASSOCIATION OF AGGRIEVED WORKMEN OF JET AIRWAYS (INDIA) LIMITED VERSUS JET AIRWAYS (INDIA) LTD., COMMITTEE OF CREDITORS LED BY STATE BANK OF INDIA, SHRI ASHISH CHHAWCHHARIA, THE CONSORTIUM OF MR. MURARI LAL JALAN & MR. FLORIAN FRITSCH [2022 (2) TMI 17 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI], this Tribunal in held that after approval of the plan they were entitled to access the Resolution Plan and Resolution Professional was directed to provide relevant portion of the Resolution Plan which was relevant for the workmen. The said judgment cannot come to the aid of the Appellant in the present case who was not stakeholder in the CIRP process.
The entire CIRP process being over where Resolution Plan has been approved in 2022, at this stage, any direction on the prayers made by the Appellant in the application are uncalled for and unnecessary - the Adjudicating Authority did not commit any error in rejecting the application filed by the Appellant - there is no merit in the Appeal - appeal dismissed.
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2023 (10) TMI 237 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Maintainability of application - initiation of CIRP - pre-existing dispute or not - whether the Corporate Debtor created a moonshine defence on frivolous grounds or there were genuine pre-existing disputes which escaped the attention of the Adjudicating Authority while passing the impugned order? - HELD THAT:- From the material facts available on record and in particular the email dated 15.06.2018, cognizance taken that it has been categorically admitted by the Corporate Debtor that this cyclical business arrangement was not supported by any written document. It is also noticed that the first reference to a cyclical business arrangement was admittedly made by the Corporate Debtor in their email sent to the Operational Creditor on 15.06.2018. It is also an undisputed fact that the contents of this email of 15.06.2018 was specifically denied by the Operational Creditor on 21.06.2018 and 09.07.2018. Both the above emails bear ample testimony to the fact that the Operational Creditor had denied any cyclical business arrangement having been agreed between them at any stage.
The present facts on record clearly show that the Operational Creditor supplied and delivered raw material to the Corporate Debtor and raised corresponding invoices. No dispute has been raised by the Corporate Debtor with respect to quantity and quality of goods received by them. Corporate Debtor admittedly had made several part-payments against invoices from 01.03.2017 till 28.02.2018 - The Corporate Debtor has failed to produce any proof to show that it had made full and final payments to the Operational Creditor.
The existence of debt due and payable by the Corporate Debtor has also not been controverted by the Corporate Debtor. No material has been placed on record by the Corporate Debtor to show that they had categorically rejected the outstanding dues claimed by the Operational Creditor prior to issue of demand notice. From a plain reading of the emails of the Corporate Debtor at pages 147-152 of AA, there arises no doubt in our minds that the Corporate Debtor had acknowledged that there was debt due and payable to the Operational Creditors - While admitting that the civil suit was filed subsequent to the issue of notice under Section 8 of IBC, it has been contended that there is no need in every case for a civil suit or an arbitration to be pending before Section 8 notice and that a dispute as understood by the IBC is not limited to a pending suit or an arbitration but includes a real dispute as to payment between the parties.
The Adjudicating Authority in the present case has carefully considered the reply and submissions made by the Corporate Debtor and has correctly come to the conclusion that there is no ground to establish any real and substantial pre-existing dispute - there are no convincing reasons to be persuaded that there was any genuine pre-existing dispute.
The Adjudicating Authority did not commit any mistake in admitting the Section 9 application of the Operational Creditor - impugned order does not warrant any interference - Appeal dismissed.
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2023 (10) TMI 236 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH , NEW DELHI
Approval of Resolution Plan - Dues of Income Tax liability - Appellant challenged the order contends that the Resolution Applicant has wrongly stated that the Income Tax Department did not file any claim pertaining to operational debt - HELD THAT:- The question of approval of Resolution Plan was remitted to the Adjudicating Authority for fresh consideration. The Adjudicating Authority while hearing the parties afresh on the Resolution Plan permitted Income Tax Department and other Objectors to raise their objections and has considered the said objections. The Hon’ble Supreme Court specifically in the Jaypee Kensington judgment [2021 (3) TMI 1143 - SUPREME COURT] has not dealt with the claim of the Income Tax Department nor observed that claim of the Income Tax Department stands extinguished.
There is one more reason to reject the submission of learned counsel for Respondent No.1 that claim of the Income Tax Department stands extinguished by judgment of Jaypee Kensington. In the impugned order, Para 131 onwards, the Adjudicating Authority has dealt with reliefs and concessions under heading ‘X. Reliefs and Concessions’. Para 132 expressly dealt with obligation of the Corporate Debtor vis-à-vis Income Tax Department. The Adjudicating Authority held that the Adjudicating Authority is not inclined to grant such a blanket relief - It is made clear that reliefs from Income Tax liabilities have not been granted as prayed by the Successful Resolution Applicant. The claim which was submitted in the proceeding and the Successful Resolution Applicant has very well dealt with claim submitted by the Income Tax Department of Rs.3334.29 Crores. Even if the claim for the AY 2012-13 of Income Tax Department cannot be said to be extinguished, Appellant being an Operational Creditor, the liquidation value of the Income Tax Department is NIL. The payment of Rs.10 Lakhs cannot be said to be violative of provisions of Section 30(2)(e).
Now coming to the question of relief which can be claimed by the Appellant in the present Appeal. Suffice it to say that Appellants claim for the AY 2012-13 cannot be said to be non-existent, as is the stand taken by the IRP. However, after admitting the aforesaid claim for the AY 2012-13 for total amount of Rs.1157.07 Crores, as claimed by the Appellant, Income Tax Department who has filed claim as Operational Creditor was entitle for amount not less than the amount to be paid in the event of liquidation as per Section 53.
At the instance of the Appellant – Income Tax Department, impugned order passed by the Adjudicating Authority need no interference - Appeal disposed off.
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2023 (10) TMI 235 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Rejection of Resolution Plan - validity of the plan - resolution plan already approved by 100% majority of CoC and also approved by Adjudicating Authority - it is the contention of CRP that the RP treated them unfairly and unjustly by not entertaining their resolution plan.
HELD THAT:- Even after the Adjudicating Authority had allowed consideration of their plan by the RP, the RP had managed to persuade the CoC to not consider the resolution plan on its own merits by raising hyper-technical objections. Thus, the RP failed to discharge the duties as mandated by law to ensure the revival of the corporate debtor by not adopting a fair and transparent process. Furthermore, CRP has alleged that the RP had endorsed the resolution plan of Vama though it was not meeting the requirements under applicable law.
From the facts of the case there are no doubt in mind that the CRP did not submit their EOI on time either in the first or second round of Form G. However as and when it was received the RP had apprised the CoC. Besides being non-serious and casual about complying with timelines stipulated in the IBC, even while submitting their EoI they had failed to adhere to mandatory requirements of RFRP. Even the EMD payment was made belatedly and that too for Rs. 2.25 crore as against requirement of Rs 2.5 crore. The CoC deliberated upon the matter and ultimately passed the resolution not to consider the non-compliant plan of CRP in the interests of the corporate debtor and this was communicated to CRP. There are no lapse or irregularity on the part of the RP or the CoC in not entertaining the belated and defective plan of CRP.
The CoC has meticulously evaluated the matrix in approving the plan of Vama and the sole member of CoC having 100% voting share has already approved the plan in their commercial wisdom as contemplated under the law. That being the case, the Adjudicating Authority cannot substitute its views with the commercial wisdom of the CoC nor deal with the merits of Resolution Plan unless it is found it to be contrary to the express provisions of law and against the public interest. There is neither any material regularity nor contravention of any provisions of law by the CoC and the plan has been rightly approved by the Adjudicating Authority.
The IBC provides for an initiation of timely resolution of the corporate debtor and in the instant case the resolution plan having already been approved by the CoC and the Adjudicating Authority and implemented by the SRA, it cannot now be open to interference on an appeal preferred by an unsuccessful resolution applicant. It is equally significant to note that following the rejection of the plan of CRP by the CoC, CRP accepted the EMD refund and did not approach the Adjudicating Authority objecting to the resolution plan. It is, therefore, clear that CRP did not challenge the resolution plan before the Adjudicating Authority at the right point of time and raking up the matter belatedly - no case has made by CRP to establish any procedural or material irregularity committed by the RP/CoC in rejecting their EoI and that the challenges raised by the CRP clearly fall within the domain of commercial wisdom of the CoC which is non-justiceable. Nor has CRP been able to establish any contravention of law by the Adjudicating Authority in approving the resolution plan of Vama.
Tenability of the contentions raised by UTGST and AC-CGST that rejection of their claims by the RP and CoC was not in consonance with the requirements of law - HELD THAT:- There has been no dereliction of duty on the part of the RP in rejecting the belated claims of UTGST and AC-CGST - there are no error or irregularity on the part of RP to have rejected the belated claims of UTGST and AC-CGST. Furthermore, the Adjudicating Authority in the first impugned order has taken note that the resolution plan submitted by the SRA – Vama has taken into account the interest of government authorities and provided for appropriate treatment of admitted government dues. The Resolution Plan submitted by the Vama has dealt with the claims of Operational Creditors to the extent of Rs. 10 lakhs besides earmarking an additional sum of Rs. 25 lakhs for all the Government Department claims and undertaken to pay all the PF dues at actuals based on the outcome of an ongoing legal case at Delhi High Court with respect thereto. Thus, the approval of resolution plan of SRA-Vama by Adjudicating Authority, which was approved by the CoC with 100% vote share, does not suffer from any material or procedural infirmities.
There are no illegality in either the first or second impugned order of the Adjudicating Authority which may warrant any interference in the exercise of appellate jurisdiction - there are no merit in any appeal - appeal dismissed.
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2023 (10) TMI 234 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Reduction of claim filed by appellant before the Adjudicating Authority by Resolution Professional (RP) - it is also claimed that when list of creditors were published in the same list the RP transferred the claim from the category of admitted claim to the claim under review - HELD THAT:- Since learned Adjudicating Authority in its impugned order has noticed that MOUs which were the basis for claim appears as forged documents, there is no reason to place reliance on such MOUs. Moreover, on record there is nothing to show as to whether for rendering services of liaisoning any agreement was entered in between the appellant or CD. It is unbelievable that the appellant is claiming for more than Rs.4 crores as rendering services of liaisoning to the CD still on record there is no chit of paper as to on what terms and conditions the appellant was rendering liaison services to the CD or its unit. Moreover, once the Adjudicating Authority has noticed that MOUs which were brought on record before the NCLT by the appellant were forged one, in that event the whole claim of the appellant was required to be rejected and has rightly been rejected.
Considering the order impugned passed by the learned Adjudicating Authority wherein the MOUs placed on record by the appellant before the Adjudicating Authority were treated as if they were forged one, in normal course it was required on the part of the Adjudicating Authority to direct for conducting enquiry/investigation while exercising powers under Section 340 of CrPC - It is opined that if any party brings on record any forged documents for getting unlawful benefit on the judicial side it would be necessary for the concerned Court to exercise its jurisdiction for examining the entire issue by entrusting same to investigating agency. In any event such act of either party may not get any lenient approach by the concerned Court.
While approving the impugned order passed by the learned Adjudicating Authority,it is deemed appropriate to remit back the matter to the Adjudicating Authority with request to exercise its jurisdiction under Section 340 of Cr PC in respect of alleged MOUs, regarding which observation has been given by the Adjudicating Authority as if those documents appeared to be fraudulent one.
Appeal dismissed.
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2023 (10) TMI 176 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Application for recalling an order passed by five-member bench of NCLAT in UNION BANK OF INDIA (ERSTWHILE CORPORATION BANK) VERSUS DINKAR T. VENKATASUBRAMANIAN & ORS. [2023 (7) TMI 308 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI] where the matter was referred to Larger Bench - HELD THAT:- Since the Financial Creditors of M/s Amtek Auto Limited were not a party before this Tribunal when it was considering CA(AT)(Insolvency) No. 729 of 2020 which was disposed off in UNION BANK OF INDIA (ERSTWHILE CORPORATION BANK) VERSUS MR DINKAR T. VENKATASUBRAMANIAN, DVI PE (MAURITIUS) LTD, DECCAN VALUE INVESTORS LP [2022 (1) TMI 1382 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI, by which the Resolution Professional was directed not to deduct the amount of Rs. 34 crores, it was necessary that the Financial Creditors of M/s Amtek Auto Limited (who comprised the CoC) should have been heard before making an order, which was a variance with the commercial decision of the CoC. In doing so, this Tribunal did not follow the dictum that ‘no one shall be Condemned unheard’.
The judgment of three-member bench of this Tribunal in [2022 (1) TMI 1382 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI] is hereby recalled - application disposed off.
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2023 (10) TMI 119 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , CHENNAI
Seeking reopening of Accounts with the Order of the Tribunal, was kept pending - erroneous admission of Section 7 application only based on the Financial Statements of the Years 2012-2016, which the Appellant was challenging as ‘fraudulent’ - HELD THAT:- It is the main case of the Respondents that an amount of Rs. 4 Crores was lent to the Corporate Debtor Company based on a Resolution passed by the Board of Directors on 07/11/2011. Curiously, this document was neither filed before the RoC nor was it a part of the Section 7 Application filed earlier or even part of the present Application, but was only filed along with the ‘Rejoinder’.
It is clear that there was an interim direction given by the three Member Bench of the Principal Bench, NCLAT dated 17/11/2020 that any action taken during the CIRP would be subject to the outcome of this Appeal. This Order was not challenged and the interim direction stands as of today.
Having regard to the chequered history of the case, the Investigative Auditors Report which is dated 01/08/2018 and immediately a week thereafter the second Section 7 Application was filed before the ‘Adjudicating Authority’ and C.A. 162/130/HDB/2019 seeking reopening of the Books of Accounts under Section 130 of the Companies Act, 2013 was filed by the Appellant on 26/11/2018 and the Order of the ‘Admission’ under Section 7 of the Code was passed on 13/02/2020, which Impugned Order does not refer to adjudication of C.A. 162/130/HDB/2019, this Tribunal is of the considered view that the issues raised by the Appellant regarding ‘transactions’ and ‘entries in the Financial Books’ require Consideration. This Tribunal is of the considered view that the ‘Adjudicating Authority’ ought to have adjudicated C.A. 162/130/HDB/2019 which was kept pending from 26/11/2018 to 13/02/2020 before deciding the Section 7 Petition.
The Impugned Order of the Adjudicating Authority is set aside and the matter is remanded to the ‘Adjudicating Authority’ to decide application and then adjudicate the Section 7 Application, in accordance with Law - Appeal allowed.
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2023 (10) TMI 72 - SUPREME COURT
CIRP - Status of the entity (Corporate debtor) as MSME or not - certificate being procured after the process started - NCLAT held the status of entity as MSME - Contempt proceedings against the Resolution professional for not folloiwng the decision of NCLAT - HELD THAT:- Reliance placed in the case of SARAVANA GLOBAL HOLDINGS LTD. AND ANR. VERSUS BAFNA PHARMACEUTICALS LTD. AND ORS. [2019 (9) TMI 841 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] where it was held that Admittedly, the ‘Corporate Debtor’ is a ‘MSME’ and the promoters are not ineligible in terms of Section 29A of the ‘I&B Code’. Therefore, it is not necessary for the ‘Committee of Creditors’ to find out whether the ‘Resolution Applicant’ is ineligible in terms of Section 29A or not.
In the impugned judgment, it can hardly be disputed that there is no discussion on the special circumstances other than the reference to judgment in Bafna’s case. The impugned judgment is predicated on a broad reasoning as if ipso facto there is no need to call other proposals if it is an MSME. In view of the larger context it would have, we clearly observe and hold that this is not the correct position of law - This is more so as in the factual scenario of Bafna’s case, the observations were made in the context of (a) before the constitution of CoCs or (b) in terms of Section 12A of the Code on the basis of an offer given by the promoter in such a case.
The appellant cannot be faulted for calling for other proposals in which the proposal given by respondent No.1 was also to be examined, put them to voting before the CoCs and declare the results - impugned order set aside - appeal allowed.
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2023 (10) TMI 71 - SC ORDER
Related party or not - allowed to take place on the Committee of Creditors or not - Section 5(24) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- There can be no cavil to the proposition that so far as the appellant before us is concerned, on account of both the aspects urged by learned senior counsel for the appellant, the appellant cannot be treated as a related party and thus, would find a place on the Committee of Creditors.
Having opined so, insofar as the other aspects are concerned, which have not been dealt with by the NCLAT, it would not be appropriate for this Court to venture into that area and other aspects, considering the nature of appeal before this Court as the NCLAT must bestow consideration on those aspects first before this Court is called upon to take a view in the matter, especially keeping in mind the limited jurisdiction of this Court vis-a-vis Section 62 of the Code limiting the appeal to a “question of law”.
The impugned order set aside - matter remitted back to the NCLAT for its adjudication on the various other aspects which the appellant seeks - appeal allowed by way of remand.
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2023 (10) TMI 70 - SC ORDER
Scope of N/N. S.O 1683(E) issued by the Ministry of Corporate Affairs, Government of India dated 24.05.2017 - jurisdiction provided to the tribunal by the notification to decide the issues raised - HELD THAT:- It is observed that the order in the case of M/S SPARTEK CERAMICS INDIA LTD. VERSUS UNION OF INDIA & ORS. [2018 (10) TMI 1660 - SUPREME COURT] does not leave the party without remedy and, if aggrieved, a writ petition can be filed.
Appeal dismissed.
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2023 (10) TMI 69 - GUJARAT HIGH COURT
CIRP - Execution of decree awarded by foreign court - Overriding provision of IBC - execution proceedings can be continued in view of the interim moratorium or not - HELD THAT:- If any act violates the provisions of FEMA, permission of RBI may be obtained postfacto. Therefore, it cannot be said that the foreign judgement is in breach of Indian law or fails to recognise such breach and therefore is inconclusive.
As far as the contention of the learned counsel for the petitioner that the Foreign Judgement has purportedly held that foreign decree cannot be enforced in India and ought to be enforced in other countries is concerned, it is clear that such an observation was only to suggest that the decree holder had an option to enforce a foreign decree against the assets of judgement debtor in other countries. The judgements cited in the case of Mrs Shobha Vishwanatha [1996 (4) TMI 529 - MADRAS HIGH COURT], Algemene Bank Netherland NV [1989 (12) TMI 271 - HIGH COURT OF BOMBAY] were in the context of FERA regime and therefore reliance by the counsel for the petitioner on these are misplaced.
The conduct speaks volumes in the case i.e. how clearly after every attempt to stall the execution proceedings failed, did the petitioner, as an after thought, try to forestall the execution proceedings.
There is no merit in the petition - Petition dismissed.
Seeking a formal order staying further proceedings in the execution petition in view of deemed stay of further proceedings as per the provisions of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- As far as the IBC is concerned and with regard to the correctness of the order with regard to the currency of the interim moratorium, the preamble provides to complete the resolution in a time bound manner.
Now coming to the question of constructive res-judicata as held in the case of Sarguja Transport Services [1986 (11) TMI 377 - SUPREME COURT], that though the principles of res-judicata is not strictly applicable to writ petitions under Article 227 of the Constitution of India, the legal principles underlying Order XXIII, Rule 1(4)(b) would as a matter of public policy be applicable to writ petitions.
Application dismissed.
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2023 (10) TMI 68 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
CIRP - validity of liquidation order - Seeking consideration of Resolution Plan - Appeals have been filed by both the Appellant stating that they were willing to give a higher offer but without considering their offer liquidation order has been passed - HELD THAT:- The ends of justice be served in giving one opportunity to the CoC to consider the Plan/Revised Offer and take decision on the said offer.
It is well settled that objective of the IBC is to revive the Corporate Debtor and liquidation is the last resort. In view of the aforesaid, the order directing for liquidation is set aside and the CIRP extended for a period of 60 days from today to complete the process - It is made clear that in event Resolution Plan is approved, an application be filed for approval of the plan before Adjudicating Authority. In event, Resolution Plan is not approved, the Resolution Professional shall immediately file application for liquidation.
Appeal disposed off.
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2023 (10) TMI 11 - BOMBAY HIGH COURT
Maintainability of petition - availability of statutory remedy of appeal - Petitioner has not been availed of within the limitation period provided therefor - seeking vacation of attachment order - HELD THAT:- There is no doubt about the fact that the Petitioner was not a party to the resolution proceedings pending before the NCLT, Mumbai but we find that Petitioner was not a person who could have said to have remained in the dark all throughout about passing of the order by the NCLT. This is evident from the fact that one of the ex-directors of Respondent no. 1 had belatedly filed an appeal under section 61 of the IBC before NCLAT along with application for condonation of delay and the application for condonation of delay was dismissed by NCLAT by a speaking order passed on 14th July 2023. This order states that power vested with the Appellate Tribunal to condone the delay is only of 15 days as provided under proviso to section 61(2) of the IBC and beyond this period, no delay could be condoned by NCLAT. The NCLAT also noted the fact that delay occurred in filing of the Appeal filed by other ex-director of Respondent no. 1 was of 423 and 164 days which was beyond the power of condonation of delay vested in the appellate tribunal.
In the present case, the order passed by NCLT, and in particular, the portion by which order of attachment of flats passed by PMLA authority has been vacated, has attained finality, as rightly submitted by the learned counsel for the Respondent no. 1. This is for the reason that no appeal has been preferred against it before NCLAT within the stipulated period of time or within the extended period of time as provided under section 61 of the IBC by anybody including the Petitioners.
There are no merit in the submission as it is an admitted fact that the registered address of Respondent no. 1 company is of Mumbai and therefore, NCLT Mumbai would have had the jurisdiction in the matter. Even otherwise, if any such contention was to be made, it could have been made by the Petitioner by availing of statutory remedy of appeal, which remedy now has been forfeited by him on account of his own lethargy.
There is no merit in the petition and it deserves to be summarily dismissed - Petition dismissed.
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2023 (9) TMI 1464 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI
Seeking admission of claim which application came to be rejected by the impugned order - claim rejected without considering the reasons given for condonation of delay in filing the claim - HELD THAT:- In the present case, the claim has been filed by the Appellant after 511 days of the approval of the Resolution Professional.
Respondent has relied on recent judgment of Hon’ble Supreme Court in RPS Infrastructure Ltd. vs. Mukul Kumar and Another, [2023 (9) TMI 516 - SUPREME COURT], where the Hon’ble Supreme Court with regard to belated claim, which was filed after 287 days, has approved the order of the Appellate Tribunal affirming the rejection of the claim.
The present case is fully covered by the above judgment of Hon’ble Supreme Court. In the facts of the present case, no error has been committed by the Adjudicating Authority in rejecting application filed by the Appellant, which was for accepting claim which was filed after 511 days after approval of the plan by the CoC.
Appeal dismissed.
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2023 (9) TMI 1463 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI
Request made by the Appellant for submission of claim - request rejected by the Adjudicating Authority on the ground of delay - HELD THAT:- Once the Hon’ble Supreme Court in the case of M/s. RPS Infrastructure Ltd [2023 (9) TMI 516 - SUPREME COURT] has held that even in a case where the Adjudicating Authority has not approved the plan would not imply that the plan can go back and forth making the CIRP an endless process because in that matter it would result in the reopening of the whole issue, particularly as there may be other similar persons who may jump onto the bandwagon.
There are no merit in the present appeal and the same is hereby dismissed.
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2023 (9) TMI 1431 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Condonation of delay of 12 days in filing appeal - sufficient cause for delay or not - HELD THAT:- The Appellant has to give sufficient cause in the Application which should inspire confidence in the Appellate Authority to condone the delay for not reaching the Appellate Authority within the prescribed period. In this regard, it would be relevant to refer to the averments made in the Application in which the Appellant has not stated as to how and why the delay has occurred in not filing the Appeal within the prescribed period of 30 days from the date of pronouncement of the Order dated 31st March, 2023 - As a matter of fact, the reason much less sufficient, for the purpose of condonation of delay is conspicuous by its absence, in the entire application. Therefore, there is nothing for this Tribunal to appreciate about the sufficient cause for not approaching the Appellate Authority within the time prescribed or even thereafter within the window of 15 days.
The period of 15 days cannot be extended and the Appellate Tribunal does not have jurisdiction to consider and condone the delay beyond the period of 15 days and in case the Appellate Authority is satisfied that there has been a sufficient cause for not filing the Appeal within the time prescribed or within the extended period, it can condone the delay and hear the matter on merits. Therefore, sufficient cause is the heart and soul of the application for condonation of delay which is totally missing in this Application.
The law is very strict so far as the proceedings under the Insolvency and Bankruptcy Code, 2016 is concerned as has been held by Hon'ble Supreme Court in the case of NATIONAL SPOT EXCHANGE LIMITED VERSUS MR. ANIL KOHLI, RESOLUTION PROFESSIONAL FOR DUNAR FOODS LIMITED [2021 (9) TMI 1156 - SUPREME COURT] in which it has been held that after the expiry of 15 days, the limitation cannot even be condoned under Article 142 of the Constitution of India. Having said that, in the absence of any averment made in the application for condonation of delay in regard to sufficient cause, we do not find any reason to condone the delay and the Application is thus hereby dismissed.
Application dismissed.
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