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Insolvency and Bankruptcy - Case Laws
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- 2020 (2) TMI 385
Approval of the resolution plan for the Corporate Debtor - extension of CIRP extended - Section 30(6) of IBC, 2016 - differential treatment inter se the secured financial creditors - HELD THAT:- In the resolution plan of Patanjali it is specifically stated that the resolution plan is "submitted after considering and evaluating several factors such as including the assets, liabilities, future cash flows of the business, tracking of developments taking place post CIRP Date etc. and not alone the amount of claims made by the creditors of a company under insolvency". Referring to the decision of this Tribunal directing repayment of the ₹ 65.98 crores, it is stated that the resolution plan was submitted after considering the said amount. Therefore, it follows that the resolution applicant has appropriated this ₹ 65.98 cro....... + More
- 2020 (2) TMI 384
Recall of order denying petitioner /award-debtor from taking recourse to the provisions of The Insolvency and Bankruptcy Code, 2016 (IBC) - delay in hearing of the Section 34 application - HELD THAT:- The only question which was before the Court was whether the Section 34 can be proceeded with in view of the objection taken by the petitioner that the respondent /award-holder has not filed any claim in the resolution proceedings before the National Company Law Tribunal (NCLT). It may also be pointed out that the entire discussion in the order with regard to the said issue was by reason of the protracted submissions made on behalf of the petitioner and upon the Court being invited to decide on the issue. The apprehension expressed by learned counsel appearing for the petitioner that the petitioner may risk the effect of the observations mad....... + More
- 2020 (2) TMI 380
Maintainability of application - initiation of CIRP - corporate debtor failed to make repayment of its debt - time limitation for filing proceeding - HELD THAT:- There is no proof of any acknowledgement of liability on the part of the Corporate Debtor or any payment made by the Corporate Debtor within the limitation period that may have the effect of extending the period of limitation within the meaning of section 18 or section 19, as the case may be, of the Limitation Act, 1963. The dates of default in respect of the five invoices range between 02.03.2014 and 11.07.2014. Even if we take the last of the dates, i.e., 11.07.2014, the three-year limitation in terms of Article 137 of the Limitation Act, 1963, for filing the present proceeding ended on 10.07.2017, while the present petition was filed on 15.05.2018. Reliance can be placed in th....... + More
- 2020 (2) TMI 379
Maintainability of application - initiation of CIRP - Corporate debtor failed to make repayment of its debt - existence of debt and dispute or not - HELD THAT:- There is overwhelming evidence to prove default and the defense which has been taken by the Corporate Debtor is rather evasive in nature. It is pertinent to mention that the Corporate Debtor as such in his pleadings has nowhere disputed or denied the claims made by the FC. Also taking into consideration Section 128 of the Indian Contract Act, the liability of the guarantor is co-extensive with the liability of the principal debtor and the same can be invoked without exhausting the remedies against the Principal Debtor. The application deserves to be admitted - application admitted - moratorium declared.
- 2020 (2) TMI 378
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - HELD THAT:- The Operational Creditor is entitled to claim its dues, establishing the default in payment of the operational debt beyond doubt, moreover since the Corporate Debtor has admitted its inability to pay its debts. Hence, the present application is admitted - The registered office of respondent is situated in New Delhi and therefore this Tribunal has jurisdiction to entertain and try this application. Application admitted - moratorium declared.
- 2020 (2) TMI 287
Maintainability of petition - initiation of CIRP - whether the petitioner can maintain the present petition under section 9 of I & B Code as the Petitioner is undergoing CIRP? - HELD THAT:- Section 11 of I & B Code deals with the persons not entitled to make application. The persons shown in clauses (a) to (d) of section 11 of I & B Code shall not be entitled to make an application to initiate corporate insolvency resolution process under this Chapter. We are looking into section 11(a) of I & B Code which provides that a corporate debtor undergoing CIRP is not entitled to make an application to initiate CIRP - It is an undisputed fact that the Petitioner herein is undergoing CIRP. Insolvency resolution process can be started against a corporate debtor. Such a corporate debtor cannot initiate CIRP by virtue of section 11(a)....... + More
- 2020 (2) TMI 286
Maintainability of petition - initiation of CIRP - Corporate Debtor defaulted in repayment of its debt - existence of debt and dispute or not - time limitation - HELD THAT:- The corporate debtor has taken a ground that the application under Section 7 of I&B Code is time barred in the appeal itself. Such ground is not agitated before the Adjudicating Authority. Therefore, there is no finding of Adjudicating Authority on this issue. We have carefully examined the issue of limitation. The Respondent has bonafidely prosecuted within limitation period under SARFEASI Act - Therefore, the Respondent is entitled for the exclusion of time period under Section 14(2) of Limitation Act i.e. the period of 3 years and 6 months. After exclusion of this period the application filed under Section 7 of I&B Code is within limitation period. The appl....... + More
- 2020 (2) TMI 232
Recall of order - Jurisdiction of Adjudicating Authority-NCLT to issue directions directly to the SFIO under Section 210 read with Section 213 (b) (in) of the Companies Act, 2013 - HELD THAT:- When neither of the Ex.-directors or the company secretary or any other person not prepared to divulge the information as to where such an amount has disappeared, directions were issued to the SFIO to investigate and it should have been followed rather than filing of application for recalling the order on account of a technical issue of obtaining permission from the Central Government. The same could be done by the SFIO itself as the siphoning of funds is in respect of public money which is noticed in the order dated 16.11.2018. Application dismissed.
- 2020 (2) TMI 193
Maintainability of application - non transfer of ‘Interest Bearing Maintenance Security Deposit’ - Section 7 of the Insolvency and Bankruptcy Code, 2016 - ‘Corporate Debtor’ entitlement to retain the one-time maintenance and liability towards electricity etc. and individual liability against the resident - HELD THAT:- The Adjudicating Authority is only required to see whether the application under Section 7 has been filed by 100 allottees, who are members of RWA or a 10% of the allottees who are members of the allottees to maintain it. The Adjudicating Authority is required to take into consideration only the Form-1 and the enclosure therein but find out the default, if any and to proceed in accordance with law. Before the admission of the application under Section 7, the Adjudicating Authority has no jurisdiction ....... + More
- 2020 (2) TMI 192
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and default or not - HELD THAT:- In the instant application, from the material placed on record by the Applicant, this Authority is satisfied that the Corporate Debtor committed default in paying the financial debt to the Applicants and the respondent company has acknowledged the debt - In the instant case, the documents produced by the Financial Creditors clearly establish the 'debt' and there is default on the part of the Corporate Debtor in payment of the 'financial debt'. There is existence of default and that the application under Section 7(2) of the Code is also complete in all respect - the petitioners/financial creditors having fulfilled all the requirements of Section 7 of the Code, the instant petition deserves to be admitted. Petition admitted - moratorium declared.
- 2020 (2) TMI 58
Suit for recovery of price of goods sold and delivered - issue of forgery - HELD THAT:- In a suit for recovery of price of goods sold and delivered and in an application for judgment and decree on admission therein, a defendant can set up a defence of forgery. Such defence is required to be evaluated so as to arrive at a finding whether such defence is one of moonshine or of substance. In the facts of the present case, the defendant claims that one Mr. Pankaj Sharma issued certain letters to the defendant. Such Mr. Pankaj Sharma by way of an affidavit denies having issued such letters. These letters apparently relate to the alleged loss that the defendants suffered by way of the inferior supplies effected by the plaintiff. The pendency of the proceedings under the Insolvency and Bankruptcy Code, 2016 is no bar to the present suit being he....... + More
- 2020 (2) TMI 57
Maintainability of petition - initiation of CIRP - time limitation - fraudulent and malicious initiation of proceedings with an intent for any purpose other than for the resolution of insolvency or liquidation - HELD THAT:- The 1st and 2nd Respondents filed the application under Section 7, fraudulently with malicious intent for the purpose other than for the resolution or liquidation and they knocked at the doors of the Adjudicating Authority for refund of money and not for the Flat/ premises and thereby wanted to jump ship and really get back the amount, by way of coercive measure - Apart from the fact that the ‘Corporate Debtor’ has offered the possession of flat on 15th November, 2016 and obtained completion certificate immediate thereafter. Therefore, delay in granting approval by the Competent Authority cannot be taken in....... + More
- 2020 (2) TMI 56
Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of debt - existence of debt and default or not - HELD THAT:- The Insolvency and Bankruptcy Code recognises two types of debt to enable the creditors to make an application for initiating insolvency proceedings against the corporate debtor- financial debt and operational debt. If there is a debt, other than a financial debt or an operational debt, the creditor will not qualify to apply under Sections 7 or 9, as the case may be. Hence, the determination of nature of claim/debt is an important step while considering the admission of an application under the Code - While the law is still evolving, there are certain categories of dues, about which, the debate as to their classification into financial or operational debt continues. One such debt claims ....... + More
- 2020 (2) TMI 55
Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment - existence of dispute or not - HELD THAT:- In the present case, applying the test of “existence of a dispute”, without going into the merit of the dispute, it is apparent that the Corporate Debtor had raised a plausible contention to require further investigation, which was not a patently, feeble, legal arguments or an assertion of facts, unsupported by evidence. The defence was not spurious, mere bluster, plainly, frivolous or vexatious. In this Operational Creditor has not filed any documents to show that the final bill was submitted regarding the alleged contract and the outstanding amount was also acknowledged by the Corporate Debtor. These email/communication submitted by the Corporate Debtor also shows that there was a pre-exist....... + More
- 2020 (2) TMI 54
CIRP process - constitution of Committee of Creditors (COC) - HELD THAT:- If a Resolution Plan comes to be considered and approved, Section 30(2)(a) shows that such Plan would require providing for the payment of the Insolvency Resolution Process costs in a manner specified by the Board “in priority” to the payment of other debts of the Corporate Debtor. Even if no Resolution Plan comes around to get approved and contingencies as provided in Section 33(1) arise and order of liquidation is to be passed, even then Section 53(1) makes it clear that in the waterfall mechanism, the first in order of priority is “the insolvency resolution process costs” and the liquidation costs paid in full. The Impugned Order shows the reasons why without waiting for Appellant the Order was required to be passed. It was in interest of ....... + More
- 2020 (2) TMI 53
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - Existence of debt and dispute or not - HELD THAT:- The application made by the Operational Creditor is complete in all respects as required by law. It clearly shows that the Corporate Debtor is in default of a debt due and payable, and the default is in excess of minimum amount of one lakh rupees stipulated under section 4(1) of the IBC. Therefore, the default stands established and there is no reason to deny the admission of the Petition. In view of this, this Adjudicating Authority admits this Petition and orders initiation of CIRP against the Corporate Debtor. Petition admitted - moratorium declared.
- 2020 (2) TMI 52
Permission for withdrawal of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - debt and default due or not - HELD THAT:- Since the Company Petition is not yet admitted by the Adjudicating Authority, and the parities themselves have settled the issue, we are inclined to permit the Petitioner to withdraw the instant Company Petition with a liberty to file fresh Company Petition in case the Corporate Debtor failed to comply with the terms and conditions of the payment as mentioned in the said Joint Memo Settlement Terms dated 27.11.2019. Petition disposed of as withdrawn by directing the Corporate Debtor to strictly adhere to the terms and conditions as mentioned in the said Joint Settlement Terms dated 27.11.2019 without fail failing which the Petitioner is at liberty to file fresh Company Petition in accordance with law.
- 2020 (2) TMI 51
Maintainability of petition - initiation of CIRP - Corporate Debtor defaulted in making repayment - existence of debt and default or not - HELD THAT:- In compliance of Section 9(3)(c) that no payment of an unpaid operational debt has been made, a statement of Bank account also seen produced on the side of the Corporate Debtor by way of filing supplementary affidavit dated 15-01-2019. So also, the Operational Creditor has proposed the name of Interim Resolution Professional, Mr. Ajay Kumar Agarwal, Insolvency Professional, a reference to Form 2 and written communication enabling us to hold that there is no disciplinary proceeding pending against the proposed Interim Resolution Professional - Accordingly, we are satisfied that the Operational Creditor has succeeded in proving the default of an unpaid operational debt by the Corporate Debtor and complied of all the requirements to be meted out under Section 9(5) of the Code. Application admitted - moratorium declared.
- 2020 (2) TMI 50
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - section 9 of Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The present application is complete and the Applicant is entitled to claim its dues, which remain uncontroverted by the Corporate Debtor, establishing the default in payment of the operational debt beyond doubt. The present application is admitted, in terms of section 9 (5) of IBC, 2016. Application admitted - moratorium declared.
- 2020 (2) TMI 49
Maintainability of petition - initiation of CIRP - Corporate Debtor defaulted in making repayment of debt - existence of debt and dispute or not - HELD THAT:- There is an unpaid operational debt amounting to ₹ 24,74,085,/- plus interest @18% p.a.. Copy of the work order dated 19.08.2011 is attached as Annexure A1. Moreover, demand notice in Form No. 3 was also sent on 01.03.2018 stating that the amount due from the corporate debtor to the operational creditor is ₹ 37,72.979/- including interest. We have held above that the demand notice in form No.3 dated 01.03.2018 was properly delivered by the operational creditor and the reply has been examined above and found to be not acceptable. IRP is not proposed in Part III of Form No.5. Petition admitted - moratorium declared.