|
Advanced Search Options
IBC - Case Laws
Showing 201 to 220 of 9149 Records
-
2024 (9) TMI 6
Auction sale of the shares - Appellant has right to challenge the auction of shares or not - submission which has been much pressed by the Appellant is that shares, which have been sold, have been sold undervalued, without proper valuation by the Liquidator and the shares have been sold only on the book value of the shares, whereas value of shares were much more - HELD THAT:- Challenge to right issue, issued by the Alliance Broadband is pending before the Adjudicating Authority, the challenge to right issue can have no effect on the auction sale of the shares, which shares were sold on ‘as is where is basis’. The submission of the Appellant that physical shares were not in possession of the Liquidator, hence, Liquidator ought not to have put the shares for auction. The Liquidator has also filed an Application seeking a direction to the Alliance Broadband to handover physical shares. The shares have become part of the liquidation estate as per operation of law. It is relevant to notice that Adjudicating Authority has already in paragraph 10 of the order passed on 12.01.2024 has directed Alliance Broadband to handover the Certificate in original to the Liquidator within a week. It has been pleaded on behalf of the Respondent that Alliance Broadband has already handed over the physical Certificate in original to the Liquidator, which in turn has been handed over to the Successful Auction Purchaser - there are no substance in the submission of the Appellant that auction sale is illegal on this ground. The Liquidator has already indicated in the sale notice that physical shares are not with the Liquidator and steps are being taken to acquire the physical shares.
The Corporate Debtor being shareholder of the Alliance Broadband, which shares were put on auction sale by the Liquidator, consequent to the liquidation order, thus, no exception can be taken to the process adopted by the Liquidator in putting the shares for auction.
The sale of 77,500 shares, held by the Corporate Debtor of the Alliance Broadband, which are sold through auction, were not undervalued and the same was done after valuation by the IBBI Registered Valuer and the shares were sold on much more than the book value of the shares. The challenge to right issue as filed by the Appellant in IA No. 847 of 2021, which is pending consideration, has no consequence on the auction sale held on 14.02.2023 - there are no error committed by the Adjudicating Authority in order dated 12.01.2024 rejecting IA No.334 (KB) 2023 filed by the Appellant.
There are no merit in the Appeal(s) filed by the Appellant(s) - appeal dismissed.
-
2024 (8) TMI 1490
Status of the Appellant - Financial Creditor or Operational Creditor? - HELD THAT:- There is no error in the impugned order because the secured creditor can be both operational creditor as well as the financial creditor but financial creditor is altogether different from the operational creditor and since it has been held that a similar authority, namely, Noida Authority is an operational creditor, claiming the same relief on the basis of the lease deed, the Appellant, namely, GNIDA cannot be held to be a Financial Creditor on the same facts and has rightly been held to be an operational creditor.
There is hardly any merit in this appeal for the interference and hence, the same is hereby dismissed.
-
2024 (8) TMI 1414
Amendments made in the Articles of Association in Extra Ordinary General Meeting held on 30.09.2014 amending Article of Association, Article 59 and Article 60 - entrenched Articles as referred to in Section 5, sub-sections (3) and (4) of the Companies Act, 2013 or not - amendment of Articles 59 and deletion of Article 60 could be done by a special Resolution as passed in the AGM dated 03.05.2019 or for amendment of Article 59 and deletion of Article 60, requirement was that all Members of the Company to agree for amendment, i.e., all 12 Members as existing on the relevant date - error in approving the meeting held on 03.05.2019 - nominee under Section 113 of the Companies Act is bound to exercise his powers as per the decision of Board of the Company - reappointment of Deepak as Executive Chairman of the FCL.
Whether the amendments made in the Articles of Association in Extra Ordinary General Meeting held on 30.09.2014 amending Article of Association, Article 59 and Article 60 were to be treated to be entrenched Articles as referred to in Section 5, sub-sections (3) and (4) of the Companies Act, 2013? - HELD THAT:- There was no concept of entrenched articles in 1956 Act, as now has been brought by Section 5, sub-sections (3) and (4). An entrenchment provision in the Articles, which identifies special provisions, which can be altered only, if the conditions or procedure, which are much more restrictive than those applicable in the case of special resolution as is applicable for altering any provision of the Articles are met - The Resolution passed on 30.09.2014, cannot be said to be a Resolution, which was agreed to by all the Members of the Company. In the Meeting held on 30.09.2014, neither Prakash, nor Vijay the brother of Deepak were present. Thus, the Resolution dated 30.09.2014, cannot be said to be agreed to by all the Members of the Company. Hence, the statutory requirement to treat the Articles as entrenched Articles cannot be accepted. The statutory scheme of Section 5, sub-section (4) provides that amendment in the Articles providing for entrenchment shall only be made by an amendment in the Articles agreed to by all the Members of the Company in the case of a private Company. Thus, Articles 59 and 60, which were approved by the Company in the AGM dated 30.09.2014, cannot be held to be entrenched Articles. It goes without saying that entrenched Article within the meaning of Section 5, sub-section (3) can be amended only when its is agreed by all the Members of the Company.
The amendments made in Articles of Association in AGM held on 30.09.2014, amending Articles 59 and 60, cannot be treated to be entrenched Articles as referred to in Section 5, sub-sections (3) and (4) of the Companies Act, 2013.
Whether the amendment of Articles 59 and deletion of Article 60 could be done by a special Resolution as passed in the AGM dated 03.05.2019 or for amendment of Article 59 and deletion of Article 60, requirement was that all Members of the Company to agree for amendment, i.e., all 12 Members as existing on the relevant date? - Whether the Adjudicating Authority committed error in approving the meeting held on 03.05.2019 by the impugned order? - HELD THAT:- The amendment in Article 59 and deletion of Article 60 was made in exercise of power under Section 14 by Special Resolution. The Resolution dated 03.05.2019 was passed as a Special Resolution, which is apparent from the result of the Scrutinizer. Thus, alteration of Article 59 and deletion of Article 60 was fully permissible by Special Resolution and it did not require agreement of all the Members of the Company, Articles 59 and 60 being not entrenched Articles as held above. Thus, it cannot be held that Resolution passed by EOGM on 03.05.2019 was not in accord with the provisions of the Companies Act, 2013 and the Articles of Association.
The amendment of Article 59 and deletion of Article 60 could be done by Special Resolution as passed in EOGM dated 03.05.2019 and there was no requirement of agreement by all the Members of the Company, i.e., all twelve Members, as existing on the relevant date. (Pralhad Prakash Chhabria having died on 05.05.2016, reducing the Member numbers from 13 to 12) - The Adjudicating Authority did not commit any error in approving the EOGM held on 03.05.2019.
Whether nominee under Section 113 of the Companies Act is bound to exercise his powers as per the decision of Board of the Company? - HELD THAT:- Section 113 of the Companies Act is bound to exercise his power as per the decision of the Company or he having been appointed a representative of the Company is free to exercise his right, as per his discretion. Sub-section (2) of Section 113 throws a clear light on the statutory intendment. Sub-section (2) provides that a person authorised by resolution under sub-section (1) shall be entitled to exercise the same rights and powers, including the right to vote on behalf of the body corporate, which he represents as that body could exercise if it were an individual member. What is manner and exercise of a representative of the Corporation at the meeting of Companies is, as per the decision of the Body, which has authorized individual Member to cast his vote. Authorised representative is merely an Agent of the Company and is bound to act as per directions of the Board or Board of Directors.
A representative under Section 113 of the Companies Act, 2013 is bound to exercise his representation as per the decision of the Board of the Company. In event Board has not given any specific decision for exercise of power, the representative is free to exercise his representation as per his will.
Whether the result of the Annual General Meeting held on 29.09.2023 on Resolution No. 4 with regard to reappointment of Deepak as Executive Chairman of the FCL need to be interfered with in this Appeal? - HELD THAT:- The result of AGM held on 29.09.2023 on Resolution No.4 with regard to re-appointment of Mr. Deepak Chhabria as Executive Chairman of the FCL, need no interference in this Appeal.
The relief, if any, to which the Appellant is entitled to in this Appeal? - HELD THAT:- NCLT should proceed to decide the Company Petition No. 47 of 2016 finally. The pleadings by both the parties in the Company Petition having already been completed long ago, we are of the view that ends of justice will be served in observing that NCLT shall endeavour to dispose of Company Petition No. 47 of 2016 as early as possible, preferably within a period of six months from the date of copy of this order is produced.
The impugned order dated 31.12.2019 passed in MA No. 1449 of 2019 is not interfered with - The decision of Annual General Meeting held on 29.09.2023 on Resolution No. 4, which took place during the pendency of this Appeal is not interfered with - The NCLT is requested to finally decide the Company Petition No. 47 of 2016 expeditiously, preferably within a period of six months from the date of copy of this order is produced.
-
2024 (8) TMI 1413
Lease hold right in the Tea Gardens - control to be taken by the Resolution Professional under Section 18(f) and Section 25 of the I&B Code - renewal of period of lease - non-payment of Salami as required under West Bengal Estate Acquisition Rules 1954 by the Corporate Debtor while executing the renewal of the lease deed - possession of all the Tea Estates.
Whether the Corporate Debtor has lease hold right in the Tea Gardens, which are assets of the Corporate Debtor which need to be taken control by the Resolution Professional under Section 18(f) and Section 25 of the I&B Code? - HELD THAT:- The Tea Gardens which have been leased out to the Corporate Debtor are Tea Garden which are owned by the State of West Bengal. The Corporate Debtor does not have any Ownership Right in the Tea Garden hence the main sub-Clause (f) of Section 18 does not cover the Tea Garden. However, the definition in Section 18 (f) is inclusive definition which is apparent in the expression “including” occurring in the end of sub-Section (f) and sub-Clause (iv) refers to Intangible Assets including Intellectual Property. The Leasehold Rights are Intangible Assets, which is now a settled proposition of law.
The present is the case where Tea Gardens are owned by State of West Bengal and the Corporate Debtor claimed possession by virtue of Contractual Arrangement i.e., Lease Arrangement. In the present case, thus whether by virtue of explanation to Section 18(1) of the IBC, Tea Gardens had to be excluded from the definition of Assets is a question to be answered.
The submission which has been advanced by the Respondent is that Leasehold Rights of the Corporate Debtor had come to an end by efflux of time on the date, when CIRP commenced, hence the provision of Section 18(1)(f) and Section 25 does not empower the RP to pray for possession and custody and control of the Assets.
Whether with regard to those Tea Gardens where period of lease has come to an end before commencement of the CIRP and application for renewal has been filed by the Corporate Debtor, the lease shall be deemed to be renewed since no decision has yet been taken by the State of West Bengal either accepting or rejecting the application? - HELD THAT:- Case of the Appellant is that Application for renewal was filed before the expiry of the term of the Lease. The Clause 16 of the Lease as extracted above clearly indicates that Lease shall be entitled to renewal for further period of 30 Years subject to the rules and terms and conditions of the Lease and such other terms and conditions as the State Government may from time to time consider it necessary to impose and include in such renewed lease or leases - the Clause itself contemplates that renewal is not automatic nor Clause 16 contains concept of extension of the Lease. Renewal has to be made by the State in such terms and conditions as State Government may impose while renewing the Lease.
The law is well settled that when original Lease Deed contemplates the renewal of the Lease, the renewal has to be in accordance with the terms of renewal as contemplated in the Lease in question. Although, renewal is contemplated for further period of 30 Years, but the said renewal is hedged by the rules and terms and conditions of the Lease and such other terms and conditions as the State Government may from time to time may impose.
Whether renewal of the lease deed of Kilcott Tea Estate w.e.f. 15.11.1995 till 23.08.2025 has to be treated to be valid renewal, similarly, renewal of lease deed of Garganda w.e.f. 08.11.1996 to 18.09.2026 has to be treated as valid renewal and renewal of lease deed of Bagrakote Tea Division-I dated 19.06.1998 has to be treated as a valid renewal? - Whether non-payment of Salami as required to be paid as per West Bengal Estate Acquisition Rules 1954 by the Corporate Debtor while execution of renewal of lease deed shall make the renewal void and inoperative? - HELD THAT:- At the time of renewal, it was open for the State to put terms and conditions and renewal could have been granted on such terms and conditions as the State Government may from time to time consider it necessary to impose. Admittedly, at the time of renewal, which was dated 15.11.1995, the Notification dated 01.06.1994 was already enforced, adding Clause 1-A and 1-B in the Form-1, requiring payment of Salami of Rs.15,000/- per hectare at the time of execution of lease. However, in the renewed Lease Deed, as extracted above dated 15.11.1995, it is clear that although expression Salami has been used in the Lease Deed, but no amount of Salami was mentioned and only rent was mentioned, which was @ Rs.13,180 per annum. It is further relevant to notice that renewed Lease Deed was executed on behalf of State by Additional District Magistrate & Additional Collector, Jalpaiguri - the execution of Lease by Additional District Magistrate and Additional Collector, Jalpaiguri was on behalf of the Governor, who was competent to execute the lease. Earlier, original leases were also executed by District Authority of similar designation.
Renewal of Lease Deed of Kilcott with effect from 15.11.1995 till 23.08.2025 and renewal of Lease Deed of Garganda, with effect from 08.11.1996 to 08.09.2026 and renewal of Lease Deed of Bagarcote from 19.06.1998 till 22.05.2028 are valid renewals and the Corporate Debtor shall have subsisting leasehold rights in the above Tea Gardens on the date of commencement of CIRP, i.e. 05.03.2020 - Non-payment of Salami as required to be paid as per West Bengal Estate Acquisition Rules, 1954 (as Amended) by the Corporate Debtor by execution of lease of renewal, does not make the renewal void and inoperative, whereas the renewal of Lease Deed also uses expression ‘Salami’, but it does not provide for payment of any Salami as condition of renewal of lease.
Whether order dated 28.05.2021 passed by the Adjudicating Authority in IA No.1256/KB/2020 rejecting the application with regard to four Tea Gardens - Dhumchipara, Garganda, Tulsipara and Hantapara deserve to be set aside? - HELD THAT:- The order of Adjudicating Authority dated 28.05.2021, although is liable to be affirmed with regard to rejection of Application, with regard to three Tea Gardens, namely – Dumchipara, Tulsipara and Hantapara, but the Application was not liable to be rejected with regard to Garganda Tea Garden, which lease was renewed by the State of West Bengal by executing a registered renewed Lease Deed dated 08.11.1996. Thus, the order dated 28.05.2201 deserve to be partly set aside, insofar as it related to Tea Garden Garganda. It is held that RP was entitled to take custody and possession of Tea Garden Garganda, whose lease having been renewed on 08.11.1996 and the Corporate Debtor has subsisting right in the Lease Deed till 08.09.2026.
Whether the Adjudicating Authority committed error in relying on order dated 28.05.2021 in IA No.1256/KB/2020 while deciding the subsequent applications filed by the Resolution Professional for taking possession of different Tea Estates? - HELD THAT:- While rejecting other Applications filed by the RP for taking possession of Tea Gardens, reliance has been made on order dated 28.05.2021 passed in IA No.1256/KB/2020. It is to be noted that the possession of all four Tea Gardens, which was subject matter of IA No.1256/KB/2020 was handed over to the Merico by the Corporate Debtor under Bipartite Agreement and hence, the possession of those four Tea Gardens were handed over prior to initiation of CIRP - mechanically relying on the order dated 28.05.2021 in IA No.1256/KB/2020 is not sustainable. While passing the subsequent orders, rejecting the IAs filed by the RP, the Adjudicating Authority was required to consider the Applications. In any view of the matter, we have already considered and held above that the leasehold rights of the Corporate Debtor, subsisting in three Tea Gardens namely – Garganda, Kilcott and Bagarcote. Hence, the Applications filed by the RP, insofar as above three Tea Gardens, deserve to be allowed.
Whether possession taken by the Sammelan and Marico subsequent to order dated 05.03.2020 is in violation of provisions of Section 14 of the I&B Code with respect to Tea Gardens except the four Tea Gardens which were subject matter of IA No.1256/KB/2020? - HELD THAT:- The Corporate Debtor has subsisting rights in three Tea Gardens, i.e., Garganda, Kilcott and Bagracote-I as noticed above. Although, possession of Garganda was taken prior to enforcement of moratorium, but possession of Kilcott and Bagaracote was taken respectively on 03.11.2021 and 01.07.2021 as noticed above. The Corporate Debtor has subsisting rights in the above leases of Bagaracote and Kilcott, which were renewed. Hence, after the enforcement of the moratorium on 05.03.2020, the possession of Tea Estates of the Kilcott and Bagaracote could not have been taken. It is true that the State was the owner of Tea Estates and due to suffering of labour, the Department of Labour, Govt. of West Bengal and Labour Commissioner held various meetings to mitigate the sufferings of the labourers, the possession of different gardens were handed over to Sammelan to the aforesaid two Tea Gardens, but moratorium having enforced, taking possession of aforesaid two Tea Gardens is in clear breach of Section 14 (1) (d).
With regard to other Tea Gardens whose leases have expired, State was owner of all the Tea Estates and it is a case of the Department that lease of Tea Gardens were not renewed and possession was taken. There being no subsisting right of the Corporate Debtor in the Tea Gardens, except the three Gardens, i.e. Garganda, Kilcott and Bagracote. We do not find any infirmity with regard to handing over possession to Marico and Sammelan for running other Tea Gardens after enforcement of moratorium. Thus, violation of moratorium under Section 14(1)(d) has to confine to two Tea Gardens where the Corporate Debtor has subsisting rights, i.e., Kilcott and Bagracote.
Whether Appellants are entitled to be handed over the possession of all the Tea Estates for which applications were filed? - HELD THAT:- It is already observed that the rejection of the Application, IA No.1256/KB/2020 is not sustainable with regard to Tea Estate of Garganda for which lease was renewed on 08.11.1996 as the Corporate Debtor had subsisting leasehold right in Garganda. Hence, the Application filed by RP, ought not to have been rejected for Tea Garden Garganda.
Similarly, coming to IA No.1111/KB/2021, which was filed for possession for Nagaisuree and Kilcott Tea Gardens. We have already held that lease for Kilcott was renewed with effect from 15.11.1995 till 23.08.2025. Hence, the Application, IA No.1111/KB/2021, ought not to have been rejected with regard to Tea Garden Kilcott and the RP was entitled to take possession and custody of Tea Garden Kilcott - Coming to the Application, IA No.665/KB/2021, which was filed for taking possession of Bagracote Tea Estate Div.I, II, III and IV. We have noticed above that with regard to Bagracote Div.I, lease was renewed with effect from 19.06.1998 for 30 years, hence, the Corporate Debtor/ has subsisting right. Thus, the Application, IA No.665/KB/2021, ought not to have been rejected with regard to Bagracote Div.I.
Relief, if any, to which Appellant may be entitled? - HELD THAT:- The leasehold rights of the Corporate Debtor subsist in three Tea Gardens, namely- Garganda, Kilcott and Bagracote, where the lease has been renewed and valid as follows: 1. Garganda valid upto 08.09.2026; 2. Kilcott valid upto 23.08.2025; and Bagarcote Div. I valid upto 22.05.2028.
The orders rejecting the IAs of RP insofar as the aforesaid three Tea Gardens are concerned are unsustainable and deserve to be set aside - appeals disposed off.
-
2024 (8) TMI 1344
Violation of principles of natural justice - Seeking clarification of the judgment dated 30.05.2023 - RP has locus to file the Application or not - appointment of the Resolution Professional (RP) and the objections raised by the Personal Guarantors - HELD THAT:- There cannot be any denial that principles of natural justice are also attracted in the proceeding in Application under Section 95. However, the Hon’ble Supreme Court, after noting the scheme of insolvency proceeding, has held that Adjudicating Authority role cannot be held to be applicable at the stage of Section 97(5), i.e., at the stage when RP has been appointed.
It is to be noted that Appeal(s) were filed by the Appellant challenging order dated 10.04.2023 by which, RP was appointed in the Application under Section 95 filed by the Financial Creditor. The Appellant while challenging order dated 10.04.2023, did not implead the RP as one of the party, whereas RP was required to be impleaded, since the appointment of RP was sought to be challenged in the Appeal, the Appellant cannot take benefit of its own mistake, in not impleading the RP in the Appeal, who was required to be impleaded. It does not lie in the mouth of the Appellant to contend that RP has no locus to file the Application. The objection, which are sought to be raised by the Appellant, are only clear endeavor to prolong the proceedings under Section 95 - the submission of the Appellant that RP has no locus is rejected. Furthermore, the Adjudicating Authority in its order dated 09.05.2024 has observed that there is no assistance from the learned Counsel for the RP in the matter. It was due to the above observations that present Application has been filed by the RP, which cannot be said to be without any locus.
RP cannot be precluded form submitting its Report as per the law laid down by the Hon’ble Supreme Court and the Adjudicating Authority has to consider all objections raised by the Appellant(s) at the time of hearing of Section 100 and the order passed by this Tribunal dated 30.05.2023, cannot be read in any manner as to exclude the applicability of judgment of Hon’ble Supreme Court dated 09.11.2023 in Dilip B Jivrajka.
The Adjudicating Authority may proceed in the proceedings under Section 95 as per the law - Application disposed off.
-
2024 (8) TMI 1343
Prayer for clarification of the order dated 26.05.2022 passed by this Tribunal - prayer that Respondent - seeking Restraint on enforcement or execution of Arbitral Awards - HELD THAT:- It is noted that by order dated 11.01.2019, this Tribunal directed for continuation of pending proceedings before Arbitral Tribunals, which was with a caveat that Arbitral Tribunals are prohibited to pass any order under Section 17 of the Arbitration & Conciliation Act, 1996 against IL&FS or any of its Group Companies. Award passed, if any was to be kept in sealed cover till final decision of the petition under Section 241 and 242 of the Companies Act, 2013 pending before the NCLT. It was further observed that after the Award is given in favour of the IL&FS or any of its Group Companies, in such case, the Award need not be kept in sealed cover, even during the pendency of the Company Petition. An IA No.2114 of 2021 was filed by Respondent - Sadbhav Engineering Ltd.
This Tribunal in the order has observed that the order dated 26.05.2022 clearly indicate that Tribunal did not enter into the issues raised by the respective parties. It was further observed that the observations made in the order dated 26.05.2022 cannot be read to mean that it has in any manner varied the order dated 15.10.2018 passed in the Appeal, which was operating till date. It is reiterated that order dated 26.05.2022 neither vary, nor modified the order dated 15.10.2018 or the entire order dated 11.01.2019. The only modification was made in paragraph 2 of the order dated 11.01.2019 that sealed cover be opened, which was directed to be kept till the final decision of the Company Petition filed under Section 241 and 242. When the order dated 15.10.2018 has not been varied or modified, even if an Award has been opened from the sealed cover and communicated to the Respondents, the Respondents are not entitled to enforce the Award during the continuation of the interim direction dated 15.10.2018, which was subsequently affirmed by this tribunal on 12.03.2020.
Application allowed.
-
2024 (8) TMI 1342
Effect of moratorium when symbolic possession has already been taken over by the appellant - If the proceedings under the SARFAESI Act, 2002 were complete on 20.06.2019 when symbolic possession of the property of the Corporate Debtor was taken over by the Appellant and whether the moratorium under Section 96 of the Code would not affect the rights of the appellant?
HELD THAT:- This issue has already been answered in a recent judgement in Sanjay Dhingra Vs IDBI Bank Ltd & Ors [2024 (7) TMI 812 - DELHI HIGH COURT] where it was held that 'The respondent-bank cannot proceed further under the SARFAESI Act, in view of the interim moratorium, operating on account of the Insolvency Proceedings pending against the petitioner, the personal guarantor.'
The impugned order dated 25.02.2021 need not be interfered - the appellant shall not proceed further under the SARFAESI Act qua the subject property till the moratorium is lifted - appeal dismissed.
-
2024 (8) TMI 1281
Seeking modification of order - Grievance of appellant/ defendant no. 1 is that the application, whereby modification of the order dated 22.10.2019 was sought was not adjudicated and instead, simply notice was issued with a direction to the learned Joint Registrar to record evidence in the matter - HELD THAT:- Mere perusal of the provisions of Section 14 (1) of the IBC would show that once moratorium is declared by the adjudicating authority i.e., NCLT, it prohibits the institution of suits or continuation of pending suits or proceedings against the corporate debtor, which includes execution of any judgment, decree or order in any Court of law, tribunal, arbitration panel and other authorities. The corporate debtor in this case being the appellant/defendant no. 1, as alluded to above, the appellant/defendant no. 1 has preferred a counter claim.
Clearly, the plain language of Section 14 (1) (a) of the IBC does not prohibit continuation of a counter-claim. The counter-claim, as defined under Order VIII Rule 6 (a) of the Code of Civil Procedure, 1908, typically as against a set off, can relate to a cause of action accruing to a defendant vis-a-vis the plaintiff, either before or after filing of the suit action. Counterclaim needs to be filed, as per the said provision, before the defendant has delivered his defence or before the time limit for delivering his defence has expired. Counter-claim cannot exceed the pecuniary limits of the jurisdiction of the Court concerned, where the suit action is instituted.
Because counter claim can proceed to trial, evidence ought to be permitted to be recorded in the suit claim, is a submission which is misconceived in law. Such submission flies in the face of the plain language of Section 14 of the IBC and what constitutes a counter claim. Therefore, SSMP does not lay down the correction position in law.
The recordal of evidence by the learned Joint Registrar (Judicial) will continue vis-a-vis the counter-claim preferred by the appellant/ defendant no. 1. However, moratorium will operate vis-a-vis the claim made by the respondent no. 1/ plaintiff - Appeal disposed off.
-
2024 (8) TMI 1280
Correctness of action where the Plan was approved by the CoC after expiry of CIRP period - HELD THAT:- It is relevant to notice that in IA No.1748 of 2023, the Appellant has prayed for setting aside the minutes of the meeting of the CoC dated 27.07.2023, approving the Resolution Plan. In IA No.1420 of 2024, which has been rejected by the impugned order, the Appellant has again made a prayer to set aside the resolution of the CoC held on 27.07.2023. The Appellant having unsuccessfully challenged the Resolution Plan dated 27.07.2023 in IA No.1748 of 2023, which decision of NCLT was affirmed up to Hon’ble Supreme Court, it cannot be allowed to again question the same decision by filing IA No.1420 of 2024. The Adjudicating Authority while having noticed the order dated 18.10.2023 has concluded that by allowing the extension of 30 days and excluding the period of pendency of the IA filed by RP for seeking extension.
There is no infirmity in the order of the Adjudicating Authority rejecting IA No.1420 of 2024. There is no merit in the Appeal - appeal dismissed.
-
2024 (8) TMI 1279
Admission of Section 7 Application filed by the Financial Creditor (Respondent herein) - premature application - disbursement of loan or not - Appellant challenging the impugned order submits that no debt was due or payable as the Application was filed on 28.04.2020.
Whether Financial Creditor has able to prove disbursement of loan to the Corporate Debtor? - HELD THAT:- It is relevant to notice that in the present case, this Tribunal has directed the Appellant to file an affidavit and explain the entry of Rs.10,01,16,474. After the order of this Tribunal, an affidavit has been filed dated 17.01.2023, which is nothing but misleading affidavit containing false averments - the amount which was advanced to the Appellant by the Financial Creditor, was duly disbursed, which is proved by the Bank statement and is reflected in the balance sheet of 2010-11. The amount reflected in the balance sheet of year 2010-11 under the heading ‘long term borrowing’ have been increasing in subsequent years, which indicates that interest component was added in subsequent balance sheets, which fully supports the case of the Financial Creditor that loan was with interest @ 12%. The plea of the Appellant that amount of Rs.10,01,16,474/- reflected in the balance sheet of 2016-17 and 2017-18 are amount which was given by loan to the Corporate Debtor by Romell Real Estates Pvt. Ltd. is rejected, which is false and misleading plea.
Time limitation of application filed - Appellant submits that there is no acknowledgement in the balance sheet of the year 2017-18, since name of Respondent No.1 Financial Creditor is not reflected in the balance sheet, hence, there is no acknowledgement within the meaning of Section 18 of the Limitation Act and Adjudicating Authority committed error in reading the acknowledgement - HELD THAT:- The mere fact that name of Respondent No.1 is not mentioned as creditor in subsequent balance sheet including the balance sheet of 2017-18 is of no consequence, since the name of Respondent No.1 was mentioned as under the unsecured/ long term borrowings in 2011-12, which unsecured loan/ borrowings continued to be reflected in subsequent balance sheet of the Corporate Debtor. It is already noted the plea raised by the Appellant that amount of long term borrowings mentioned in balance sheet for the year 2017-18 is borrowing from Romell Real Estates Pvt. Ltd., which plea has not been accepted for reasons given above. The debt, which was reflected in 2011-12 of the Financial Creditor, continued to be reflected under the long term borrowing and there being continuous acknowledgement, the Application cannot be said to be barred by time.
When the Corporate Debtor’s case is that the Loan Agreement is fabricated and forged, it does not lie in the mouth of the Corporate Debtor to contend that as per Loan Agreement, the Application under Section 7 was premature.
From the facts of the present case, as reflected from materials brought on the record, it is clear that the Corporate Debtor, who has not denied the disbursement of the amount in balance sheet of 2010-11 and subsequent balance sheet has not made any pleading or brought on record any material that amount at any time was paid to the Financial Creditor, although some repayment was made to the other family members of the Financial Creditor in 2015. Disbursement, reflection in the balance sheets and repayment to family members, who were part of the same Loan Agreement, are the materials on which conclusion can be drawn that loan was taken by the Corporate Debtor, but was not repaid and now the Appellant is making false and misleading pleas to somehow get out from the liability from the debt and default, which has been committed by the Corporate Debtor.
Appeal dismissed.
-
2024 (8) TMI 1266
Jurisdiction to resolve dispute with regard to payment of outstanding dues, if any, by the Respondent to the Corporate Debtor - Admissibility of claims under Section 60(5) of the Insolvency and Bankruptcy Code, 2016 - recovery of admitted dues - HELD THAT:- The Respondent has candidly and unequivocally admitted in the email dated 04.06.2022 its liability to pay a sum of INR 12,36,28,455/- to the Corporate Debtor. Therefore, there is not even a semblance of dispute so far as this amount is concerned.
In Gujarat Urja Vikas Nigam Ltd [2021 (3) TMI 340 - SUPREME COURT], it has been held by the Hon’ble Supreme Court that one of the important objects of the Code is to bring the insolvency law in India under a single unified umbrella with the object of speeding up the insolvency process. It was further observed in the aforesaid case that the non-obstante clause in Section 60(5) of the Code is designed for a purpose i.e. to ensure that NCLT alone has the jurisdiction when it comes to applications or proceedings by or against the Corporate Debtor covered by the Code, making it clear that no other forum has jurisdiction to entertain or dispose of such applications or proceedings and therefore, NCLT has jurisdiction to adjudicate disputes which arise solely from or which relate to the insolvency of the corporate debtor.
If the Applicant is relegated to civil court(s) or arbitral proceedings even in respect of admitted dues, it would definitely defeat the objects of the Code and the objective of concluding the process in a time bound manner would never be possibly adhered to. Even otherwise, in the context of this case, undisputedly, the Corporate Debtor continued to render services to the Respondent despite initiation of CIRP against it and against those services, the Liquidator is seeking to realize the dues. Therefore, it cannot be said by any stretch of imagination that there is no nexus of the dues sought to be recovered or the relief(s) being claimed in the application with the insolvency/liquidation process.
This application deserves to be partly-allowed directing the Respondent to pay the admitted liability of INR 12,36,28,455/- to the Applicant forthwith. For the remaining amount, permission is hereby granted to the Liquidator u/s 33(5) of the Code to initiate appropriate legal proceedings - Application allowed in part.
-
2024 (8) TMI 1156
Maintainability of the interim Application seeking Summary Judgment under Order XIII-A, Rule 1 read with Order XII Rule 6 of the Code of Civil Procedure, 1908 - seeking to enforce claims arising out of supplies of bunker made to the Defendant-Vessels - proceeding in rem against res - Section 14 of the IBC - HELD THAT:- The Plaintiff though claiming Defendant No. 2 to be a party liable in personam in respect of the Plaintiff’s claim has stated in paragraph 31 of the Plaint that the Plaintiff is entitled to arrest any vessel in the ownership of Defendant No. 2 as per the provisions of Section 5 (2) read with Section 5 (1) (a) of the Admiralty Act. Thus, the Plaintiff has proceeded in rem against a res i.e. against the Defendant No. 1 vessel claimed to be beneficially owned by Defendant No. 2 in respect of defined class of maritime claim against the vessels viz. M.V. Sea Jaguar and M.V. ATH Melody under Section 4 of the Admiralty Act.
In the present case, the Plaintiff had supplied bunkers to the vessels M.V. Sea Jaguar and M.V. ATH Melody and which had not been paid for by Defendant No. 2 (the time charterer of the aforementioned vessels). Accordingly, the Plaintiff has sought to enforce its maritime claims under Section 4(1) (h) of the Admiralty Act, against the Defendant No. 1 Vessel, (against whom separate claim arises for bunker supplied) which the Plaintiff claims is beneficially owned by the Defendant No. 2. Thus, the contention of the Defendant No. 2 that the Plaintiffs’ claim is an in personam claim against Defendant No. 2 and that precludes the Plaintiff from proceeding in rem against the res cannot be accepted.
It has been held in Raj Shipping Agencies [2020 (5) TMI 450 - BOMBAY HIGH COURT] that an action in rem against the ship and / or sale proceeds thereof is not an action against the owner of the ship who may be corporate debtor as defined under the IBC. Further, the principle that an action in rem continues as an action in rem notwithstanding that the owner may have entered appearance, if the security is not furnished for release of the vessel. Thus, it is a settled position of law that Section 14 of the IBC does not prohibit an action in rem or continuation of in rem proceedings against the maritime vessel.
In order to affect an arrest under Section 5 (1) (a) read with Section 5 (2), the owner of the vessel must be liable for a maritime claim and must be the owner of the vessel sought to be arrested when the arrest is effected. There is no restriction in so far as a time charterer is concerned who is liable for a maritime claim provided that the time charterer is the owner of the other vessel when the arrest is affected. Accordingly, the defence raised by the Defendant No. 2 that a vessel owned by a time charterer cannot be arrested is rejected.
The Plaintiff cannot seek summary judgment in respect of supplies II and III without evidence being led and a full fledged trial for establishing that the Defendant No. 2 is the real owner of the Defendant No. 1 vessel - the Summary Judgment must fail against Defendant No. 2 in respect of Supplies II and III for which the Plaintiff has a maritime claim. The Suit shall continue against Defendant No. 2 in respect of Supplies II and III.
Interim Application is accordingly disposed of.
-
2024 (8) TMI 1155
Challenge to an interim award under Section 31 (6) of Arbitration and Conciliation Act, 1996 - rejection of the respondent/petitioner’s application under Section 16 of the 1996 Act operates as res judicata in respect of the impugned interim award - alleged future losses covered by the counter claim could be dismissed at the outset on the ground of approval of the Resolution Plan in respect of the claimant/company or not.
Whether the rejection of the respondent/petitioner’s application under Section 16 of the 1996 Act operates as res judicata in respect of the impugned interim award? - HELD THAT:- The basis of the decision turning down the objection to the arbitrator’s jurisdiction under Section 16 of the 1996 Act was the moratorium under Section 14 of the IBC which attends a CIRP mandatorily. The learned Arbitrator held that since the claim and the counter claim were interconnected, the moratorium did not prevent the Arbitrator from taking up the counter claim as well. There was no adjudication, nor was any issue raised in respect of the effect of approval of a Resolution Plan on the counter claim. The subsequent approval of the Resolution Plan, which extinguished the rights of the creditors, altered the scenarioaltogether, furnishing a fresh cause of action for the interim award. Hence, there cannot arise any question of the previous rejection of the Section 16 application operating as a bar to the learned Arbitrator deciding independently on the application for interim award - this issue is decided in the negative, holding that the earlier order of rejection of the claimant’s application under Section 16 of the 1996 Act did not operate as res judicata or prevent the impugned award from being passed.
Whether the alleged future losses covered by the counter claim could be dismissed at the outset on the ground of approval of the Resolution Plan in respect of the claimant/company? - HELD THAT:- It has been repeatedly held, time and again, by different authorities including the Supreme Court that all claims, even if pending on the date of the Resolution Plan stand extinguished upon its approval. The convoluted arguments advanced by the petitioner on the meaning of future losses are not relevant in the context of the IBC, since even if the losses continue to occur prospectively, the seed of the said losses already came into existence in a nascent form on the date of making of the claim - in terms of Section 31 of the IBC and as per the ratio laid down in Ghanashyam Mishra [2021 (4) TMI 613 - SUPREME COURT], the claims incorporated in the petitioner’s counter claims pending before the learned Arbitrator stood finally extinguished with the approval of the Resolution Plan and need not or could not have been further adjudicated by the Arbitral Tribunal - the issue is decided against the petitioner and it is hereby held that the alleged future losses covered by the counter claim could be dismissed at the outset on the ground of approval of the Resolution Plan in respect of the claimant/company.
Hence, the learned Arbitrator was perfectly justified in dismissing the counter claims of the respondent/petitioner at the inception in view of the approval of the Resolution Plan in respect of the claimant-Company - no ground for interference with the impugned interim award passed under Section 31 (6) has been made out under Section 34 of the 1996 Act, since this Court does not find any patent illegality or anything to shock the conscience sufficiently to set aside the said interim award. The learned Arbitrator arrived at quite plausible and legally correct findings in dismissing the counter claims.
Petition dismissed.
-
2024 (8) TMI 1154
Suspension of AFA pending adjudication of the show cause notices - Restoration of Authorization for Assignment -validity of Clause 23A provided in the Schedule to the Insolvency and Bankruptcy Board of India (Model Bye-Laws and Governing Board of Insolvency Professional Agencies) Regulations, 2016 - Clause 23A of the Bye-Laws of ICSI Institute of Insolvency Professionals - HELD THAT:- Clause 23A provides for suspension of the AFA on initiation of disciplinary proceedings by the agency or by IBBI as the case may be. The Explanation to Clause 23A states that the date of issuance of a show cause notice till its disposal would amount to pendency of a disciplinary proceeding. In other words, issuance of a show cause notice amounts to initiation of such disciplinary proceedings.
The validity of Clause 23A was questioned before the Madras High Court in CA V. Venkata Sivakumar [2024 (1) TMI 1284 - MADRAS HIGH COURT]. After considering the challenge in detail, the Division Bench held that Clause 23A of the 2016 Regulations was valid and there was no illegality in providing for suspension of an AFA on initiation of disciplinary proceedings.
It is found that (a) the 2016 and 2017 Regulations have been framed pursuant to the power conferred by the provisions of the Code and especially Sections 196 and 217 to 220 read with Section 240 of the Code. The same having been laid before both the Houses of the Parliament, they have got statutory force thus empowering the IBBI to take necessary action in accordance therewith. The power includes issuance of a show cause notice by the IBBI for taking any action under Section 220 of the Code. (b) the show cause notices dated 26th October 2023 and 10th April 2024 were preceded by reports of the investigating authority which undertook investigation after being duly authorised by orders passed under Section 218 of the Code. (c) Clause 23A of the 2016 Regulations as well as Clause 23A of the Bye-laws framed by the ICSI Institute of Insolvency Professionals are valid.
The suspension of the petitioner’s AFA is legal as it is the consequence of initiation of disciplinary proceedings against him. The same is duly provided by Clause 23A of the 2016 Regulations and the Bye-Laws in that regard.
Thus, no exceptional case is made out to interfere with the issuance of show cause notices dated 23rd October 2023 and 10th April 2024. The same do not suffer from any jurisdictional infirmity. It is clarified that the observations made in the judgment are only for the purposes of considering the validity of the show cause notices.
-
2024 (8) TMI 1153
Rejection of the settlement proposal under Section 12A of IBC - whether the decision of the CoC, not to accept the settlement proposal submitted by the Appellant, can be said to be an arbitrary decision? - HELD THAT:- The settlement proposal submitted by the Appellant was with the condition that on approval of the same, liability of CD, Promoter and Guarantors shall stand extinguished, meaning thereby that the Bank has to release the personal guarantees of Promoter and Guarantors, which part of the proposal was duly considered in the 14th CoC meeting and relevant extract from 14th CoC meeting has already been extracted above, which indicates that the settlement proposal in which the Bank has to release the guarantees held with the Bank is not in compete with the Resolution Plan received. It is, thus, noted by the CoC that when the Resolution Plan of the SRA is approved, the personal guarantees be still with the Bank and it is submitted by the learned Counsel for the Bank that total amount due is Rs.238 crores, hence, CoC after due deliberations decided not to accept the settlement proposal and approved the Resolution Plan.
The decision of the CoC, which was taken through e-voting declared on 08.01.2023, was well considered and deliberated decision, in which Appellant was given full opportunity. The decision, which was taken with 100% vote share on 08.01.2023 to reject the settlement proposal of the Appellant, can in no manner be held to be arbitrary.
The Hon’ble Supreme Court in Arun Kumar Jagatramka vs. Jindal Steel and Power Limited and Anr. [2021 (3) TMI 611 - SUPREME COURT] has held that a withdrawal under Section 12-A is distinguishable both from a Resolution Plan, which is approved under Section 31 and a scheme which is sanctioned under Section 230 of the Companies Act, 2013.
The Adjudicating Authority did not commit any error in rejecting IA No.2594 of 2023 filed by the Appellant. There is no error in the judgment of the Adjudicating Authority, the Appeal being devoid of merit is dismissed.
-
2024 (8) TMI 1152
Prayer for for extension of period of Pre-Package Insolvency Resolution Process (PPIRP) for 60 days has been rejected - whether maximum time period of 120 days provided for completion of process is mandatory and on completion of the time period, the PPIRP has to be terminated and after 90 days in event, the Resolution Plan was not approved, RP has to file an Application for termination of the proceeding?
HELD THAT:- Section 54D and Section 54N which we have noted above clearly indicates that termination of PPIRP happens after an Order is passed by the Adjudicating Authority. The statute makes one thing clear that there is no concept of automatic termination of PPIRP after expiry of 120 days. No exception, can be taken for providing 120 days of completion of PPIRP. Since all IBC process have timelines, which have its own importance. Completion of process in a timeline has its own object and purpose - the Application which was filed by the RP before the Adjudicating Authority was on the strength of resolution passed by the CoC in its 3rd CoC Meeting held on 30.04.2024. The CoC, in its 3rd CoC Meeting has noticed that revised base Resolution Plan submitted by the Corporate Debtor is under consideration of the CoC.
The Hon’ble Supreme Court had occasion to consider the said second proviso in `Committee of Creditors of Essar Steel India Ltd.’ [2019 (11) TMI 731 - SUPREME COURT]. The second proviso which provided for mandatory completion of CIRP within 330 days came for consideration before the Hon’ble Supreme Court in the above case and Hon’ble Supreme Court has struck down the word “mandatorily”. It was held by the Hon’ble Supreme Court that in appropriate case even after 330 days, Adjudicating Authority or Appellate Tribunal can extend the period - The above Judgment of the Hon’ble Supreme Court clearly indicates that where legislature provided for mandatorily completion of CIRP within 330 days the word “mandatory” was struck down and it was held that in appropriate cases, Adjudicating Authority shall have jurisdiction to extend the time beyond 330 days.
On looking into the provisions of Section 54D, it is clear that the provision does not contemplate any automatic termination of the PPIRP, the provision contemplates for filing of an Application by RP seeking termination of the process. The discretion of the Court is very well contemplated in the Scheme of the Statutory Scheme and Adjudicating Authority is free to exercise its statutory discretion while ordering termination of the proceeding. Thus, even if period of 120 days has been passed and the question of termination of proceeding comes for consideration before the Adjudicating Authority. Adjudicating Authority on sufficient reason can refuse termination and the proceeding and extend the period, which shall be within its jurisdiction. The Adjudicating Authority has taken the view in the Impugned Order that when the Resolution Plan is not approved within 90 days, RP was obliged to pray for termination of the proceeding and after expiry of 120 days, proceedings have to be terminated.
The Adjudicating Authority committed an error in rejecting the Application filed by the Appellant for extension of PPIRP for 60 days.
The impugned order is set aside - appeal allowed.
-
2024 (8) TMI 1110
Pr-existing dispute or not - whether in the instant case any preexisting dispute exists which would not allow initiation of Section 9 proceedings under the Code against the Appellant / Corporate Debtor/ Corporate Debtor?
HELD THAT:- It is not found that the claim of an operational creditor is undisputed and the operational debt remains unpaid.
The Corporate Debtor received goods from Respondent No. 1 / Operational Creditor and has an outstanding debt exceeding Rs. 1 lakh - The Appellant / Corporate Debtor’s claims of a pre-existing dispute due to the GST raids and alleged fake invoices are not substantiated with material on record as the correspondence and proceedings involving the GST authorities do not constitute a genuine preexisting dispute between the Corporate Debtor and Respondent No. 1 / Operational Creditor concerning the operational debt.
The Appellant / Corporate Debtor's contentions that the company is solvent and the matter should be resolved through civil proceedings or arbitration are not relevant to the initiation of CIRP under the IBC.
The appeal lacks merit as the Appellant / Corporate Debtor failed to demonstrate a pre-existing dispute as required under Section 9 of the IBC. The Adjudicating Authority rightly admitted the application filed by Respondent No. 1 / Operational Creditor and initiated the CIRP against the Corporate Debtor.
Appeal dismissed.
-
2024 (8) TMI 1109
Admission of Section 95 petitions filed by Alchemist Asset Reconstruction Company Limited-Financial Creditor - denial of natural justice to the Appellant by the Adjudicating Authority - invocation of Deed of Guarantee of the PG stood circumscribed by the Put Option Agreement or not - entitlement to object to the Assignment Agreement between RBL/original lender and Respondent No.1.
In the facts of the present case, whether there has been denial of natural justice to the Appellant by the Adjudicating Authority? - HELD THAT:- The application of principles of natural justice requires to be determined in the background of the facts and circumstances of each case as there is no one-size fits all formula. Having said that, we need to also appreciate the background in which the Adjudicating Authority decided to reserve the matter for orders. It is significant to note that the Adjudicating Authority while reserving the matter for orders observed that the that RP had filed its report under Section 99 of IBC “long back” and the matter at hand was “old” - the statutory provisions of IBC under Section 100 provides for only 14 days time to the Adjudicating Authority to adjudicate on the admission or rejection of Section 95 application from the date of submission of the Report of the RP. In view of such stringent timelines provided under the IBC for initiation of Insolvency Resolution Process under Chapter-III of the IBC, prima facie, the Adjudicating Authority cannot be faulted in the given circumstances for having proceeded with reserving the matter for orders after giving the Appellant due liberty to file further written submissions.
In view of the time-bound nature of IBC proceedings, there are no infirmity in the endeavour made by the Adjudicating Authority to expedite disposal of the present Section 95 application rather than prolong the matter.
The matter remanded back to the Adjudicating Authority would be a time-consuming process and frustrate the time-lines set under IBC.
Whether the invocation of Deed of Guarantee of the PG stood circumscribed by the Put Option Agreement? -Whether the Appellant-PG was entitled to object to the Assignment Agreement between RBL/original lender and Respondent No.1? - HELD THAT:- No prior consent of PG or any intimation was given to the PG about the Assignment Agreement. Since PG had given guarantee to the original lender/RBL and not to Respondent No 1, therefore, no action can be initiated against the PG. It is also canvassed by the Appellant that the Assignment Agreement was entered into to overcome the ramifications of the Put Option Agreement and aimed at securing an unfair advantage to Respondent No.1 to fabricate claims against the PG. It has been asserted that the Adjudicating Authority has failed to appreciate that the Assignment Agreement was not executed in good faith.
The Deed of Guarantee entered between the original lender and PG is an independent, distinct and a special contract which has to be construed on its own terms. The terms of the Deed of Guarantee are therefore extremely material as the invocation of the guarantee had to be purely in accordance with the terms of guarantee. It is clear from the reading of the clauses contained in Deed of Guarantee that guarantee was given by the PG in unequivocal terms and the guarantee amount was to be paid by the guarantors without demur or objection once the guarantee was invoked - In the letter invoking the guarantee, it was clearly stated that the Corporate Debtor had not performed its obligation of debt repayment. It is an admitted fact that the Corporate Debtor did not discharge the debt. It is a settled position in law that under Section 128 of the ‘Indian Contract Act’, the liability of the surety is coextensive with that of principal debtor unless it is otherwise provided by the contract.
This legal precept has been laid down by the Hon’ble Supreme Court in the matter of Maharashtra State Electricity Board, Bombay Vs. Official Liquidator, High Court, Ernakulam and Anr. [1982 (10) TMI 134 - SUPREME COURT]. In the present case, once the principal borrower failed to discharge the debt, the liability of the guarantor got triggered on the invocation of guarantee. By virtue of this Deed of Guarantee, the PG was therefore mandatorily obliged to honour its guarantee.
The Adjudicating Authority did not commit any error in holding that the right of the Respondent No.1 to recover money from the PG emanates from the terms of the Deed of Guarantee which were not in any manner obliterated, overwhelmed or superseded by the Put Option Agreement with the latter having its own sphere of operation. The liability of the PG was purely dependent on the terms of the Deed of Guarantee which was independent of the Put Option Agreement - Once the Assignment Deed was duly executed and registered, the Respondent No.1 by operation of law was substituted in place of the original lender in all actions for realisation of the debt vis-à-vis the Corporate Debtor. The legal position recognising the rights of an Asset Reconstruction Company to act in furtherance of assignment of debt as a valid legal right is no longer res integra. That being so, the borrower or the guarantor has no locus or right to challenge any such assignment.
This Bench is of the considered view that the liability of the Appellant as surety being coextensive with that of the principal debtor in terms of the Deed of Guarantee and the Respondent No.1 having stepped into the shoes of the original lender pursuant to the Assignment Deed executed in its favour and Appellant having failed to show that debt of the principal borrower stands extinguished and having failed to honour the guarantee obligation despite invocation of personal guarantee, no error has been committed by the Adjudicating Authority in the impugned order admitting Section 95 application.
There is no merit in the Appeal - Appeal dismissed.
-
2024 (8) TMI 1058
CIRP - VAT / Sales Tax dues - Treatment of claims as Secured claims vis-a -vis Unsecured claims - Rejection of application of appellant to treat its claim as Secured Creditor during the liquidation under waterfall arrangement as stipulated in Section 53 of IBC - it was held by NCLAT that 'the Respondent classified remaining admissible outstanding dues as Unsecured debts. The Adjudicating Authority, therefore, also passed the Impugned Order accordingly based on Resolution Plan put up for approval by CoC through the Respondent' - HELD THAT:- There are no error in the view taken by the National Company Law Appellate Tribunal.
Appeal dismissed.
-
2024 (8) TMI 1057
Seeking protection under Section 218 of the Companies Act, 2013 - as interim relief it is prayed for re-appointment as Secretary of the Club - submission which was advanced before the NCLT by the Appellant was that the termination was in violation of Section 218(1)(b) of the Companies Act and no employee could be removed from the Club without prior approval of the Tribunal - HELD THAT:- It is clear that only intent and object of the Appellant is to seek protection under Section 218 of the Companies Act and get reappointed as Secretary. The said issue of protection under Section 2018 having already been pronounced by the NCLT, which order has not been interfered with by this Tribunal or the Hon’ble Supreme Court, subsequent applications CA-88/2023 and CA-34/2024 are nothing but re- agitation of the issues which has already been raised by the Appellant and rejected. Appellant has given much emphasis on non-decision of CA-88/2023 and CA-34/2024 inspite of order of this Tribunal passed on 10.08.2023 and 11.01.2024. As noticed above, on 10.08.2023, this Tribunal has observed that in view of the fact that application has been filed under Section 218 of the Companies Act, the Tribunal shall endeavour to dispose of the application at an early date. Subsequently, another IA was filed being IA No.194 of 2024, which was disposed of by this Tribunal by order dated 11.01.2024.
The Court who is in control of the proceedings has right to conduct the proceedings in orderly manner and resist attempt of the litigants who tend to raise repeatedly unconnected issues. In the present case it is noticed that the Appellant has been making submissions time and again with regard to CA-88/2023 and CA-34/2024 with regard to entitlement of protection under Section 218 of the Companies Act. Appellant very conveniently in entire appeal has not referred to earlier order of the NCLT dated 25.03.2021 where application under Section 218 was filed and in which no relief was granted of setting aside his termination or permitting his continuance.
Thus, no grounds have been made to interfere with the order dated 05.04.2024 passed by the NCLT. Appeal is dismissed.
............
|
9911796707
