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Showing 461 to 480 of 1719 Records
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2020 (1) TMI 1259
Review/recall of the order - Section 60 (5) of IBC, 2016 and read with Rule 11 of the NCLT Rules, 2016 - HELD THAT:- There is no specific power to review its own order.
This Adjudicating Authority passed an Order dated 25th June, 2019. The applicant herein has not filed any appeal before Hon'ble NCLAT against this Order. However, the applicant had filed an interim application bearing IA (IB) No. 96019/2019 in Civil Appeal No. 3169 of 2019. Since, the applicant withdrew the main Civil Appeal, this interim application is also closed.
The Hon'ble Supreme Court and Hon'ble NCLAT has time and again clearly held and also under the provisions of IBC, 2016 that there is no provisions under the IBC, 2016 nor under the NCLT Rules to review its own order. Hence, the Order of the Hon'ble Supreme Court dated 29th July, 2019 cannot be interpreted as a direction given to this Adjudicating Authority to review the Order.
Since, there is no provisions under the Act, Rules of Insolvency and Bankruptcy Code, 2016, nor any judgments precedents, this application for review/recall is not maintainable - application dismissed.
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2020 (1) TMI 1258
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - time limitation - HELD THAT:- On perusal of the records it is found that fresh term loan of ₹ 20.27 lacs was sanctioned to the respondent company on 15.06.2010 and the same term loan was reviewed and the terms of sanction were amended on 25.10.2011. Again, the said term loan was reviewed/restructured on 28.07.2014. It is also found that on 18th March, 2016 some modifications in terms and conditions of the sanctioned loan has been approved by the applicant bank. On perusal of the records it is also found that on 21.06.2017 fresh sanction of advance bank guarantee of ₹ 8.00 crores have been granted by the petitioner bank in favour of the respondent company. It is also found that the corporate debtor has acknowledged the debt by letter dated 20th July, 2016 which is annexed to the application at page No. 105 - On perusal of the records it is found that the application filed by the financial creditor is well within limitation. That, the documents filed along with the application is sufficient to prove that there exists financial debt and default occurred on the part of the corporate debtor.
On perusal of the records, it is found that the letter of authority dated 29.09.2018 issued by Assistant General Manager of the applicant bank authorising Mr. Ashik P. Shah is proper and valid - the Adjudicating Authority is of the considered view that there is a debt due to "financial creditor" and there is default on the part of the corporate debtor.
In the instant case, the documents produced by the Financial Creditor clearly establish the 'debt' and there is default on the part of the Corporate Debtor in payment of the 'financial debt' - In the instant application, from the material placed on record by the Applicant, this Authority is satisfied that the application is complete in all respect and the Corporate Debtor committed default in paying the financial debt to the Applicant and the respondent company has acknowledged the debt.
Application admitted - moratorium declared.
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2020 (1) TMI 1257
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 present petition is filed by the operational creditor since the payment for the invoices issued for the period of 27.01.2019 to 10.04.2019 has not been paid by the corporate debtor. The total amount of debt is stated to be of ₹ 4,85,239.34 excluding 12% additional interest per annum. Alongwith the petition, the operational creditor has filed copy of the ledger account of the corporate debtor in its books (Annexure A-11), copy of the invoices (Annexure A-5), copy of detailed computation of the outstanding in respect of the invoices raised (Annexure A-9) and bank account statement for the period 30.11.2018 to 02.04.2019 (Annexure A-10) - There is abundant evidence that the corporate debtor has made a default in discharging the debt towards the operational creditor and the same is not disputed. Further, learned counsel for the respondent-corporate has also submitted that respondent-corporate debtor is not in a position to payback the debts, the instant CP may be admitted.
No objections are being raised to the completeness of the application filed under Section 9(2) of the Code. The operational debt remains unpaid, the demand notice was delivered to the corporate debtor and reply was received within the stipulated 10 days period - the proposed Resolution Professional Shri Sanjay Kumar Dewani has filed Form No. 2 in which he has stated that there are no disciplinary proceedings pending against him with the Board or Indian Institute of Insolvency Professionals of ICAI - In view of the satisfaction of the conditions provided for in Section 9(5)(i) of the Code, the petition for initiation of the CIRP process in the case of the Corporate Debtor ADI Automotives Private Limited is admitted.
Application admitted - moratorium declared.
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2020 (1) TMI 1256
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - NPA - Financial Debt - existence of debt and dispute or not - time limitation - HELD THAT:- The account of the corporate debtor was declared NPA on 30.11.2010, whereas, the application under Section 7 of I & B Code has been filed on 29th May, 2018 i.e. after eight years from the date of accrual of cause of action - In the instant case the applicant has filed the application under Section 7 of the I & B Code on 29th May, 2018 after eight years from the date of accrual of cause of action i.e. 30.11.2010. Thus, the application filed under Section 7 of I&B Code is apparently time barred.
In the case on hand the cause of action arose on 31.01.2013 when the last payment was made by the corporate debtor, though date of default was 30.11.2010, but, thereafter, no acknowledgement was made by the corporate debtor and/or obtained by the applicant before expiration of three years as required in Section 18 of the Limitation Act, therefore, the application is barred by limitation as it fall under article 137 of the Limitation Act which is a residuary article.
Application not maintainable and is dismissed.
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2020 (1) TMI 1255
Jurisdiction - Eviction of the premises - whether this Tribunal lacks jurisdiction to pass order for eviction of the respondent from the premises licence to the respondent dated 30/11/2017? - HELD THAT:- The respondent herein being a licensee continuing possession after termination of license became unauthorised occupant and in unauthorised possession who can be evicted and there is no prospective buyers having turned up despite publication, of sale with the encumbrance, continuing possession by the respondent would definitely defeat the very interest of maximisation of value of the assets of the corporate debtor who is undergoing liquidation.
The agreement dated 30/11/2017 makes it clear that there was no tenancy and only temporary occupation was permitted for 11 months by the liquidator and only temporary occupation was permitted for 11 months by the liquidator to the respondent. Article 15.1 read above is one of the conditions of agreement which is bound to obey by the respondent - a proceedings of this nature wherein a person is in occupation of the premises of a corporate debtor company undergoing liquidation is continuing the occupation unauthorisidly, this unauthorised occupation is to be ordered to evict. The eviction can be passed in the nature of case in hand.
The liquidator is obliged to get maximization of the assets by selling the property at the highest price and, therefore, in view of the contract between the parties and admission of the respondent that they would vacate the premises on the expiry of license or whenever required, even as per the terms of the agreement, the respondent company is bound to vacate - respondent is directed to surrender vacant and peaceful possession of the premises to the liquidator within 15 days from the date of this order.
Application maintainable.
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2020 (1) TMI 1254
Maintainability of application - initiation of CIRP - corporate debtor failed to make repayment of its debt - existence of debt and dispute or not - time limitation - HELD THAT:- The learned lawyer appearing on behalf of the respondent company filed an additional affidavit admitting the total amount as claimed in the petition. That, the documents filed along with the application is sufficient to prove that there exists financial debt and the application is not barred by limitation.
The Adjudicating Authority is of the considered view that there is debt due to "financial creditors" and there is default on the part of the corporate debtor - the application is complete in all respects and is to be admitted.
Petition admitted - moratorium declared.
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2020 (1) TMI 1253
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - Time Limitation - HELD THAT:- On perusal of the records it is also found that no dispute has been raised by the corporate debtor. That, the application is filed on 29th October, 2018. On perusal of the records it is found that from time to time the corporate debtor has made payments towards the outstanding loan and thus acknowledged the debt. That, the application filed by the financial creditor is well within limitation. That, the documents filed along with the application is sufficient to prove that there exists financial debt - On perusal of the records it is found that the letter of authority dated 12.09.2018 issued by General Manager of the applicant bank authorising Mr. S.K. Misra is proper and valid.
The Adjudicating Authority is of the considered view that there is a debt due to "financial creditor" and there is default on the part of the corporate debtor - the application is found to be complete in all respect. Hence it does not warrant any rejection or dismissal.
In the instant application, from the material placed on record by the Applicant, this Authority is satisfied that the application is complete in all respect and the Corporate Debtor committed default in paying the financial debt to the Applicant and the respondent company has acknowledged the debt - In the instant case, the documents produced by the Financial Creditor clearly establish the 'debt' and there is default on the part of the Corporate Debtor in payment of the 'financial debt' - the petitioner/financial creditor having fulfilled all the requirements of Section 7 of the Code, the instant petition deserves to be admitted.
Application admitted - moratorium declared.
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2020 (1) TMI 1252
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- The objections raised by the corporate debtor are imaginary and not supported by any documents, whereas, the documents produced on record by the operational creditor is enough to establish that operational debt is due and payable to the applicant from the respondent which was acknowledged on 03.06.2015 and thereafter also made some payment from time to time on instructions of corporate debtor.
On perusal of the records it is found that Annexure R-10 (page No. 125) to the affidavit in reply is a letter dated 2nd March, 2017, addressed to the applicant by the respondent stating that the corporate debtor has diverted its funds to its another joint venture viz. PPESPL and seeking more time for settling the outstanding debt - On perusal of the records it is found that at page No. 15 to the application, the petitioner has provided a copy of the invoice dated 07.01.2014 reflecting the details of order placed by the corporate debtor vis-a-vis the terms of payment - thus, the respondent has defaulted in payment of the debt and has admitted the operational debt from time to time.
This adjudicating authority is of the considered view that operational debt is due to the Applicant and it fulfilled the requirement of I & B Code. That, service is complete and no dispute has been raised by the respondent at any point of time. That, Applicant is an Operational Creditor within the meaning of Section 5 sub-section 20 of the Code. From the aforesaid material on record, petitioner is able to establish that there exists debt as well as occurrence of default and the amount claimed by operational creditor is payable in law by the corporate debtor as the same is not barred by any law of limitation and/or any other law for the time being in force.
Application admitted - moratorium declared.
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2020 (1) TMI 1251
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - production of copy of resolution plan or its authorized text/relevant extract to a third Party (being guarantor) - HELD THAT:- This being a debatable issue, an appropriate decision on the point whether it is permissible under the I&B Code to provide a copy of resolution plan or its authorized text/relevant extract to a third Party (being guarantor) needs to be taken in accordance with law and in the light of judicial precedents.
The Registry is of this Bench is directed to place on record of this matter a certified copy of resolution plan as available on record of this Court in sealed cover for perusal and to examine the relevancy of non-disclosure clause - List the matter on 17.02.2020.
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2020 (1) TMI 1250
Permission for withdrawal of application - initiation of CIRP - judicial identity of entity to initiate CIRP - It is seen that notice under section 8 of IBC is initiated by the Proprietary firm and even under section 9 it is initiated by proprietary firm, which is not judicial person and it cannot initiate CIRP, in view of section 3(23) of IBC. In view of this, Ld. Counsel for the operational creditor seeks permission to withdraw the application with a liberty to file afresh.
HELD THAT:- Matter stands withdrawn and disposed off.
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2020 (1) TMI 1249
CIRP period - Exclusion of 238 days i.e. the period from 30.01.2019 to 25.09.2019 from the CIRP period for the purpose of counting the total period of the CIRP - HELD THAT:- Certain more time should be given to take the CIRP forward in its true sense and to enable RP to make all endeavour to achieve resolution of a going concern - Considering the facts of present case, a period of 90 days extension is granted from expiry of 330 days i.e. from 25.12.2019 to enable RP to expeditiously take all the steps to complete CIRP within the extended timeline and achieve resolution and save CD from liquidation.
Application allowed.
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2020 (1) TMI 1248
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- There is no such clause that the corporate debtor is liable to pay/compensate for the loss caused to the petitioner. Moreover, if at all there was any loss to the petitioner out of the MOU, then why the petitioner waited so long i.e. from 14.01.2016, till filing of the application. Admittedly, the instant dispute arises out of breach of contract i.e. MOU dated 15.01.2015 as alleged by the petitioner - Admittedly, the petitioner used to purchase the material by paying an advance amount for the goods he is supposed to receive from the corporate debtor and, thereafter, reimbursement was made as per the MOU.
The debt can be considered as an "operational debt" provided the claim arises out of the provisions of goods or services including employment or a debt in respect of the payment of dues arising under any law for the time being in force and payable to either the Central Government, any State Government or any Local Authority - there is no relation of operational creditor and corporate debtor. Operational creditor never supplied any goods and/or rendered services to the corporate debtor. However, the instant case is arising out of breach of MOU and certain promises made by the respondent. Even as per the MOU which has been entered between the parties only reflects the arrangement for selling of the goods by the applicant and certain percentages are fixed as reflected from Clause 7 of the MOU dated 15.01.2015 under the head "Marketing" (Page 61-64) which is self-explanatory - Under the circumstances, there is a breach of the said MOU which the petitioner entered with the respondent for getting certain benefit on the sale of the products.
The scheme of the code is to ensure that when a default takes place, that is when the debt become due and if not paid, the Insolvency Resolution Process begins. The default is also defined in section 3(12) i.e. "default means non-payment of debt, when whole or any part or an instalment or an amount of debt has become due and payable and if not repaid by the debtor or the Corporate debtor as the case may be".
The Adjudicating Authority is not convinced that there exist between the Petitioner and the Respondent a relationship of an "Operational Creditor" and "Corporate Debtor" and that there is an "Operational Debt of which a default has been committed and/or occurred - petition dismissed without costs.
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2020 (1) TMI 1247
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - Time Limitation - HELD THAT:- The invoice in question is dated 10.05.2011 and the debt is not legally enforceable as the claim is time barred. Even the applicant claims that the default occurred on 10.08.2011 and the applicant sent form 3 & 4 demand notice under section 8 of the I&B Code on 09.03.2018.
On perusal of the record it is observed that the application under Section 9 of I&B Code has been filed on 28th May, 2018 i.e. after more than six years from the date of accrual of cause of action - Hon'ble Supreme Court in the case of B.K. Educational Services Pvt. Ltd. vs. Parag Gupta and Associates [2018 (10) TMI 777 - SUPREME COURT] held that the Limitation Act is applicable to applications filed under section 7 and 9 of the Code from the inception of the Code, Article 137 of the Limitation Act gets attracted. "The right to sue", therefore, accrues when a default occurs. If the default has occurred over three years prior to the date of filing of the application, the application would be barred under Article 137 of the Limitation Act, save and except in those cases, where, in the facts of the case. Section 5 of the Limitation Act may be applied to condone the delay in filing such applications.
In the instant case the applicant has filed the application under Section 9 of the I&B Code on 28th May, 2018 after six years from the date of accrual of cause of action. Thus, the application filed under Section 9 of I&B Code is apparently time barred - In the case on hand no acknowledgement was made by the corporate debtor and/or obtained by the applicant before expiration of three years as required in Section 18 of the Limitation Act, therefore, the application is barred by limitation as it fall under article 137 of the Limitation Act which is a residuary article.
Instant petition dismissed as being time barred.
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2020 (1) TMI 1246
Approval of the Scheme of Arrangement by way of amalgamation - Sections 230 to 232 of the Companies Act, 2013 read with the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 and the National Company Law Tribunal Rules, 2016 - convening/dispensing with various meetings - HELD THAT:- Right to apply for the sanction of the Scheme has been statutorily provided under Section 230-234 of the Companies Act, 2013 and therefore, it is open to the applicant companies to avail the benefits extended by statutory provisions and the Rules - It has also been affirmed in the petition that the Scheme is in the interest of the transferor company and the transferee company including their shareholders, creditors, employees and all concerned.
Certificates of respective Statutory auditors of the both the petitioner companies have been placed on record to the effect that Accounting Treatment proposed in the Scheme of Arrangement is in conformity with the Accounting Standard notified by the Central Government as specified under the provisions of Section 133 of the Companies Act, 2013.
Thus, upon considering the approval accorded by the members and creditors of the Petitioner companies to the proposed Scheme, and the affidavits filed by the Regional Director, Northern Region, Ministry of Corporate Affairs and the report of official liquidator, there appears to be no impediment in sanctioning the present Scheme - sanction is hereby granted to the Scheme under Section 230 to 232 of the Companies Act, 2013.
Approval granted.
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2020 (1) TMI 1245
Claim of interest expenditure against the interest income declared under the head income from business and income from other sources - case of the Revenue is that the interest on partnership firm has been shown under the head “Business Income” against which no expenses have been claimed and interest from other parties have been shown under the head “Income from other sources” against which the whole of interest expense has been claimed - HELD THAT:- There appears to be mistake on part of the assessee in terms of claiming the whole of the interest expenditure against income from other sources rather than claiming it proportionally against interest from partnership firm and other parties, however, the substance of the matter is that where there is a nexus established between the borrowed funds and lending thereof, as in the instant case, a principle which is relevant both in context of business income and income from other sources, therefore, in such circumstances, there is no basis for disallowance of interest expenditure. The fact that the assessee has wrongly claimed the same in the return of income under one head instead of both the heads proportionally is not a bar against allowance of such claim of expenditure under respective heads when the substance of the transaction that the borrowed funds have been utlised for subsequent lending has not been disputed by the Revenue and a specific contention was raised before the lower authorities. In the result, the ground of appeal is allowed.
Agricultural income or not? - Discharge of onus - HELD THAT:- The fact that the assessee has shown agriculture income and the same has been claimed as exempt from tax. The onus is clearly on the assessee to demonstrate carrying on of the agriculture operations during the year and earning of agricultural income. In absence of the same, merely by stating that the assessee owns 1.33 bigha of land at village Mangarh, Tehsil is not sufficient to discharge the onus cast on him. The findings of the lower authorities therefore remain uncontroverted before us and the same are hereby confirmed. In the result, the ground of appeal is dismissed.
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2020 (1) TMI 1244
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- On perusal of the records it is found that having failed to get the outstanding payments from the respondent, the applicant was compelled to issue demand notice under section 8 of I & B Code on 20.01.2019. Record also shows that the respondent has not raised dispute against the demand notice, so issued by the applicant.
On perusal of the record it is found that the petition is complete in all respect.
This adjudicating authority is of the considered view that operational debt is due and payable to the Applicant and it fulfilled the requirement of IB Code as enshrined in the Code. That, Applicant is an Operational Creditor within the meaning of Section 5 sub-section 20 of the Code. From the aforesaid material on record, petitioner is able to establish that there exists debt as well as there is/are occurrence of default on the part of the corporate debtor and the amount claimed by operational creditor is payable in law by the corporate debtor as the same is not barred by any law of limitation and/or any other law for the time being in force -
It is also a matter of record that the corporate debtor has issued a cheque in favour of the applicant for ₹ 25.00 lacs and the said cheque has been dishonoured; that itself amount to admission on the part of the corporate debtor.
Thus, it is a fit case to initiate Insolvency Resolution Process by admitting the Application under Section 9(5)(1) of the Code - application admitted - moratorium declared.
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2020 (1) TMI 1243
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditor - scope of 'person' - proprietary concern - existence of debt and dispute or not - HELD THAT:- The Operational Creditor has filed the instant petition in the name of "Octopus Marine" as a "Proprietary Concern" and it does not come within the definition of "person" as contemplated under Sec. 3(23) of IBC, 2016.
Further, the instant petition has been filed by the Petitioner in the capacity as an Operational Creditor as defined under Section 5(20) of the IBC, 2016 which defines an Operational Creditor as a "person" to whom an Operational Debt is owed and includes any person to whom such debt has been legally assigned or transferred. Thus, it is imperative on part of the Petitioner, in the instant case the Operational Creditor to demonstrate and satisfy this Authority that the Petitioner is a "person" as defined under Section 3(23) of the IBC 2016 - in the instant case, the Operational Creditor has failed to substantiate that the Petitioner is a "person" as defined under Section 3(23) of the IBC 2016, and as a consequence the Petition is liable to be dismissed on this ground itself as not maintainable.
From the email addressed by the Corporate Debtor to the Operational Creditor, it is evident that the Corporate Debtor raised a dispute with regard to quality of service which is prior to issuance of Demand Notice - it is evident that there is a pre-existing dispute between the parties in relation to the quality of service provided by the Operational Creditor.
By taking into consideration the definition of a "person", the "Proprietary Concern" cannot in its own name file a petition and also in view of the pre-existing dispute between the parties, we are constrained to dismiss this petition - Petition dismissed.
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2020 (1) TMI 1242
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - time limitation - HELD THAT:- Nowhere has the Corporate Debtor denied the existence of a 'debt' and its 'default' - Further, as consistently held by Hon'ble Supreme Court both in M/S. INNOVENTIVE INDUSTRIES LTD. VERSUS ICICI BANK & ANR. [2017 (9) TMI 58 - SUPREME COURT] as well as MOBILOX INNOVATIONS PRIVATE LIMITED VERSUS KIRUSA SOFTWARE PRIVATE LIMITED [2017 (9) TMI 1270 - SUPREME COURT], after going through the Scheme of I&B Code, 2016 in depth in relation to an Application under Section 7 filed by a Financial Creditor where there is an existence of a 'financial debt' and its default in excess of ₹ 1,00,000/-, this Tribunal is bound to admit the Application and as a consequence trigger the Corporate Insolvency Resolution Process (CIRP).
The plea of the Corporate Debtor that restructuring efforts are afoot with the consortium of bankers cannot be made a ground for delaying the initiation of CIR Process or to keep in abeyance the instant Application as sought for as this Tribunal is required in case of a 'financial debt' which is due and in the event of default as defined under I&B Code, 2016 is perforce required to admit the Application and the parties including the Corporate Debtor can have recourse during CIR process to submit a plan for restructuring if otherwise not disqualified.
The Application, as filed by the Financial Creditor is required to be admitted under Section 7 (5) of the I&B Code, 2016 - Application admitted - moratorium declared.
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2020 (1) TMI 1241
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - time limitation - HELD THAT:- On perusal of the records it is found that all the invoices in question had fallen due in the year 2013. Even as per the documents produced by the applicant (page 22) the last payment was received on 30.06.2015 and the petition is filed on 10th August, 2018 i.e. beyond three years - It is pertinent to mention here that prior to 10.11.2017 no action whatsoever has been taken by the applicant to recover the alleged debt. According to part II of first division of schedule given under the Limitation Act, 1963 a debt is deemed time barred if the lender or the supplier of goods and services does not recover the money or does not take legal action within three years from the due date. In the instant case more than three years has been elapsed from the due date, therefore, the debt which is claimed by the applicant through this petition is a time barred debt, hence this application is not maintainable.
In the case on hand no acknowledgement was made by the corporate debtor and/or obtained by the applicant before expiration of three years as required in Section 18 of the Limitation Act, therefore, the application is barred by limitation as it fall under article 137 of the Limitation Act which is a residuary article - the Adjudicating Authority is of the considered view that the instant application is not maintainable as the same is barred by Limitation Act.
Petition dismissed.
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2020 (1) TMI 1240
Maintainability of application - initiation of CIRP - Corporate Debtor Failed to make repayment of its dues - Financial Debt - existence of debt and dispute or not - HELD THAT:- This Adjudicating Authority is of the considered view that the debt due to the Financial Creditor is a 'Financial Debt' as defined in sub-section (8) of Section 5 of the IB Code. The Petition is complete in all respects.
Petition admitted - moratorium declared.
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