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IBC - Case Laws
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2023 (11) TMI 108
Seeking direction from the Adjudicating Authority to accept the claim as a Financial Debt under the provision of Section 5(8) of I&B Code - Appellant submits that since the Application for approval of Resolution plan is still pending before the Adjudicating Authority, the order can be passed to consider the claim of the Appellant - HELD THAT:- The Hon’ble Supreme Court in recent Judgment in M/S. RPS INFRASTRUCTURE LTD. VERSUS MUKUL KUMAR & ANR. [2023 (9) TMI 516 - SUPREME COURT] has already taken the view that after approval of the plan by the CoC, the claims cannot be entertained. There is no dispute with the facts that the claim was filed by the Appellant after approval of the plan by the CoC. The Appellant has also not been able to show that claim of the Appellant was reflected in the records of the Corporate Debtor.
Thus, no error has been committed by the Adjudicating Authority rejecting I.A. There is no merit in the Appeal, the Appeal is dismissed.
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2023 (11) TMI 107
Validity of order if Initiation of CIRP - After the final hearing of the matter, ITAT reserved the order for passing - Thereafter, appellant prayed for recall the reserved order and re-hear the matter on the basis of new facts - Request of the appellant was rejected - Whether rejection of application caused serious miscarriage of justice to the Appellant which warrants the setting aside of both the impugned orders?
HELD THAT:- The Appellant was fully aware of the assignment of debt by the original Financial Creditor to the Respondent No.1 which is amply evident from the fact that they had themselves chosen to send the OTS proposal to Respondent No.1 on 21.10.2016 instead of sending the same to the original Financial Creditor. The OTS proposal is placed at page 287 of the Appeal Paper Book (APB). It is, therefore, clear that the Appellant/Corporate Debtor was not only aware of the assignment of the debt but had accepted and acknowledged this fact by sending the OTS proposal to the assignee. Moreover, the issue of assignment deed was never raised by the Appellant during the hearing of the main petition or at any stage prior to reserving the matter for orders.
It is a well settled proposition of law that the two stages of reserving of judgment and pronouncement of judgment are in a continuum with no hiatus or gap as such in the two stages. That being the well accepted and time-tested practice in court proceedings, subsequent pleadings filed by way of an I.A. after the judgement is reserved is normally not entertained for reasons of procedural propriety - There is no material on record to show that this debt had been liquidated by the Corporate Debtor. That being so, the debt was continuing and there was a default in repayment and nothing on record controverts that position. The Corporate Debtor having accepted the assignment agreement in their OTS proposal has no ground to deny knowledge of the fact that the Respondent No.1 had stepped into the shoes of the original Financial Creditor and therefore it has been correctly concluded by the Adjudicating Authority that the loan facility acknowledged in the name of the Financial Creditor in the balance sheet is to be construed as acknowledgement of debt qua the Appellant.
Since in the facts of the present case, a debt has arisen which is due and payable by the Corporate Debtor and a default has occurred, admission of Section 7 application cannot be obfuscated by raising technical pleas and that too after hearing in the main petition stood concluded and matter was reserved for hearing.
There are no convincing reasons to interfere with either of two impugned orders - Appeal dismissed.
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2023 (11) TMI 106
Wilful Obedience - Application filed under Rule 11 of the National Company Law Appellate Tribunal Rules, 2016 by the Liquidator praying for directions to be issued to the Respondent to hand over the vacant possession of the immovable property - HELD THAT:- This Tribunal on 21.04.2023 in allowing the Respondent to settle the dues of the statutory creditors had done so by holding that the liquidator should assume a more positive approach and not shun the bonafide efforts made by the present Respondent to clear the debt of the Corporate Debtor. It had therefore decided to give an opportunity to the present Respondent to settle with the fourth statutory creditor rather than straight away allow auction of the subject property with the caveat that this settlement was to be completed within a limited and stringent timeframe. This was allowed so as to balance the interests of all stakeholders while being fully conscious of the objectives of timeliness in the completion of proceedings under IBC.
Despite allowing two extensions of time to the Respondent, he failed to submit a responsive proposal and instead chose to file an appeal before the CESTAT. The object behind filing the appeal was to reach an end which was clearly different from the purpose for which time was allowed by this Tribunal towards full and final settlement. Instead of clearing the claims of the majority stakeholder, endeavours have only been made to dispute and stagger the claims by filing an appeal - In the process, the objectives of the IBC have been upset and defeated. Speed is the essence of IBC and the process of liquidation is time-bound to be completed within one year. Keeping in mind that the liquidation process in the instant case is already much delayed we do not find strong and cogent reasons to allow more time.
Application disposed off.
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2023 (11) TMI 51
Maintainability of application - initiation of CIRP - Financial Creditor had invoked the Corporate Guarantee on 25.08.2020, which is falling under the period specified under Section 10-A of the IBC, 2016 - HELD THAT:- Before the AA, in Form – I, Part IV, the Appellant had clearly stated that the Bank Guarantee was invoked on 25.08.2020. Since the Corporate Guarantee was invoked on 25.08.2020, the debt became due for payment thereafter. As per the provisions of Section 10-A of IBC, 2016, CIRP cannot be initiated for defaults arising in 12 months period beginning 25.03.2020.
Since the Deed of Guarantee was invoked on 25.08.2020, CIRP cannot be initiated for default in repayment as the default arises in the period excluded by provisions of Section 10A of IBC, 2016. The AA has rightly held that the default falls within the specified period in Section 10-A of the IBC, 2016 and the Application U/s 7 of IBC, 2016 is non maintainable.
Appeal dismissed.
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2023 (10) TMI 1455
Application to take on record the rejoinder filed by it to the counter filed by the Corporate Debtor - additional factual assertions not pleaded in the main petition - HELD THAT:- When the Appellant/Petitioner sets up a case in the application filed either under Section 7, 9 or 10 of the Code then as per Rule 41 of the Rules, the Respondent shall specifically admit, deny or rebut the facts stated by the Applicant in his petition or application and state such additional facts as may be found necessary in his reply whereas it is provided in Rule 42 of the Rules that where the respondent states such additional facts as may be necessary for the just decision of the case, the Bench may allow the petitioner to file a rejoinder to the reply pertaining to those additional facts but it cannot set up a new case altogether which has not been set up by the Applicant in the main application as it would again require a reply by the Respondent and further rejoinder by the Applicant and the process will go and shall never come to end.
In any case, the petitioner cannot enlarge the scope of the petition by adding a new ground in the rejoinder, as the purpose of a rejoinder is not to fill in the gaps left by the petitioner in their pleadings.
There are no merit in this appeal as well filed by State Bank of India and the same is hereby dismissed.
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2023 (10) TMI 1420
Condonation of refiling delay of 65 days - HELD THAT:- Sufficient ground for condonation of refiling delay has been shown. Refiling delay is condoned.
Condonation of inordinate delay - HELD THAT:- This Appeal has been filed against the order of the Adjudicating Authority dated 10.06.2022. The Appeal has been e-filed only on 09.07.2023. The jurisdiction to condone delay is limited to only 15 days as per Section 61(2) proviso - such an inordinate delay in filing the Appeal is condoned. Delay Condonation Application is dismissed.
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2023 (10) TMI 1394
Seeking rejection of plaint - Rule 11 of the Code of Civil Procedure, 1908 (CPC) - it was held by Delhi High Court that 'there is no merit whatsoever in the application of the applicant/defendant no.2 under Order VII Rule 11 of the CPC. It has been filed only to delay the proceedings in the suit' - HELD THAT:- There are no reason to interfere with the impugned judgment and hence, the special leave petition is dismissed.
The observations/findings recorded in the impugned judgment should be read as confined and necessary for the disposal of the application under Order VII Rule 11 of the Code of Civil Procedure, 1908.
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2023 (10) TMI 1387
Doctrine of merger - Seeking urgent directions for full and proper access to and inspection of all Aircraft documents, records, including its maintenance record/storage preservation records - HELD THAT:- The objection raised by Respondent/RPof Go Air on the doctrine of merger cannot be agreed upon. The doctrine of merger enunciated by the Supreme Court, does not have a universal or unlimited application. For a merger to operate, the superior court must examine the issues and record findings on merits.
The decision in KUNHAYAMMED AND OTHERS VERSUS STATE OF KERALA AND ANOTHER [2000 (7) TMI 67 - SUPREME COURT] also sets forth that doctrine of merger applies once a superior court has disposed of the lis before it. The Supreme Court in the case of Kaikhosrou (Chick) Kavasji Framji v. Union of India [2019 (3) TMI 1961 - SUPREME COURT] has reiterated this and clarified that the merger principle is applicable to a decision on merits.
Thus, the doctrine of merger is applicable only when an Appellate Court has gone into the merits of the case.
In any event, it has now been more than five months, since the Aircraft were grounded by the Respondent/RP of GoAir. A review of the documents and photographs filed by the Petitioners/Lessors show the evident cannibalization of the Aircraft. The Petitioners/Lessors have made out a prima facie case and it has become necessary for this Court to pass additional directions to protect these highly valuable equipment during the pendency of the present case - It is also deemed necessary that the Petitioners/Lessors be permitted to contract a 24 hour security services for all the Aircraft, to be provided at the expense of the Petitioners/Lessors.
The Respondent/RP of Go Air shall within the next fourteen days provide access to the Petitioners/Lessors of the documentations in relation to the Aircraft, the Airframe, its engines and other parts and components - application disposed off.
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2023 (10) TMI 1385
Approval of Resolution Plan - Department of State Tax is a secured creditor or not - HELD THAT:- The issues raised in the appeal are fully covered by the judgment of this Appellate Tribunal in DEPARTMENT OF STATE TAX, THROUGH THE DY. COMMISSIONER OF STATE TAX VERSUS ZICOM SAAS PVT. LTD. & ANR. [2023 (2) TMI 1170 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] where in the appeal filed by Department of State Tax similar issues were decided and it was held that Department of State Tax is not a secured creditor.
Appeal dismissed.
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2023 (10) TMI 1349
Grant of stay - appeal is pending before this Court arising out of a previous order - HELD THAT:- Since the proceedings are still pending before the NCLAT, we are not expressing any view on the merits. However, we grant permission to the appellant to apply before the NCLAT for modification of the order of stay or for vacating the stay - NCLAT may take up the application with all reasonable dispatch preferably within a period of two weeks from the date when the application for modification of the order of stay or for vacating the stay is filed.
Appeal disposed off.
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2023 (10) TMI 1344
Approval of Resolution Plan - Seeking out of turn hearing to record the approval of plan - HELD THAT:- Clause 1(f) in Chapter X of the Resolution Plan states that all claims prior to the NCLT approval date of Governmental Authorities in relation to all taxes which the Appellant was liable to pay shall stand extinguished on the approval date. Clause 1(o) declares that any tax, duty and legal liability for the period prior to approval date will be waived and extinguished. That the instant Appeal filed in 2012 is a claim which existed prior to approval date and stands extinguished by virtue of Resolution Plan. The payment schedules described in the Resolution Plan have been completed. The dispute underlying in the above appeal stands settled under Resolution Plan and nothing survives. It was prayed that appeal may be heard out of turn to record the approval of Resolution Plan by NCLT and the appeal may be disposed accordingly.
Taking note of the fact that the NCLT has approved the Resolution Plan in the insolvency proceedings in regard to the company, the Appeal does not survive any more - appeal dismissed.
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2023 (10) TMI 1305
Categorization of the respondent – Kanoria Chemicals and Industries Ltd. under one of the categories of operational creditors - HELD THAT:- The learned Senior Advocate appearing for the respondent - Kanoria Chemicals and Industries Ltd. states that in view of the order passed today, they will not press the contempt petition.
Appeal disposed off.
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2023 (10) TMI 1257
Rejection of application of the Liquidator - recoveries of customs duties - invocation of the Bank Guarantee(BG) allowed, during the moratorium period in force under section 14 of IBC - It was held by NCLAT that The appeal is devoid of merit and does not deserve to be admitted at the initial stage itself.
HELD THAT:- The appeal is accordingly dismissed.
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2023 (10) TMI 1256
Initiation of CIRP - NCLT admitted the application - Operational Creditors - serious pre-existing disputes between the Corporate Debtor and the Operational Creditor on account of discrepancies in invoices, and levy of bogus charges and overcharging - operational debt exceeds the threshold limit and is an undisputed debt or not - NCLAT held that There are no illegality in the impugned order of the Adjudicating Authority admitting the Section 9 application.
HELD THAT:- There are no reason to interfere with the order of the National Company Law Appellate Tribunal since no substantial question of law is involved in the appeal.
The appeal is accordingly dismissed.
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2023 (10) TMI 1172
Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial creditors - existence of debt and dispute or not - It was held by NCLAT that The amount advance of Rs.1.2 Crore cannot be held to be financial debt and no error has been committed by the Adjudicating Authority in rejecting the Section 7 Application - HELD THAT:- There are no reason to interfere with the impugned order - appeal dismissed.
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2023 (10) TMI 1171
Maintainability of section 9 application - initiation of CIRP - Application dismissed on the ground that it is barred by limitation - arbitration clause present in the agreement - eligibility for benefit of Section 14 of the Limitation Act.
It is submitted that there is arbitration clause in the agreement and the suit could not have been decided on merits, hence, the benefit of Section 14 needs to be extended to the Appellant.
Time Limitation - HELD THAT:- Benefit of Section 14 of the Limitation Act was sought by the Appellant on the basis of filing of suit and pendency of the suit during the period 03.10.2017 till 18.07.2022. The suit was withdrawn without any liberty from the Court to institute a fresh proceeding and termination of suit cannot be held on ground of defect of jurisdiction on cause of like nature. Thus, an essential condition for extending the benefit of Section 14 is absent. Thus, the delay in filing Section 9 application with delay cannot be said to be a sufficient cause within the meaning of Section 5.
The benefit for exclusion of the time during which proceedings under SARFAESI Act was pending was based on the observation that the said proceedings are without jurisdiction, on which prima facie finding High Court has granted stay. Hon’ble Supreme Court in Sesh Nath Singh [2021 (3) TMI 1183 - SUPREME COURT] also observed that Section 5 of the Limitation Act is also applicable in proceedings under Section 9 and on sufficient cause, the said delay can be condoned - The Judgment of “Sesh Nath Singh” was in facts and grounds as noted above and does not help the Appellant in the present case.
It is further observed that that the proceedings under IBC are not proceedings for recovery of contractual dues, as is apparent from the facts of the present case the Operational Creditor has initiated proceeding for recovery of its contractual dues arising out of contract between the parties. Suit for recovery of dues was already filed by the Appellant which was withdrawn by the Appellant. It is, however, relevant to notice that withdrawal of the suit was not on the ground contended by the Appellant nor any liberty was granted by the Civil Court to institute a fresh suit nor Appellant at any point of time resorted to the proceeding of arbitration which according to the Appellant was reason for withdrawal of suit.
The present was a case filed by the Operational Creditor only for recovery of its contractual dues with regard to default committed as per the case of the Appellant on 30.04.2015 for stage 1 and 23.10.2018 for stage 2. The Adjudicating Authority did not commit any error in rejecting Section 9 application as barred by time - there are no merit in this Appeal - appeal dismissed.
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2023 (10) TMI 1121
CIRP - Distribution methodology as per categorisation of financial creditors based on the security structure - distribution of the amount of Rs. 351 Crores which has been deposited by the SRA - HELD THAT:- It is true that there was discussion regarding CoC expenses which was to reimburse from the amount as part of the upfront payment to the Financial Creditors but for the voting only two resolutions were put as noted above. The Resolution which received 74.41% vote and was approved was “Resolve that Resolution Plan shall be approved along with the distribution methodology which shall be as per categorisation of Financial Creditors based on the security structure and as discussed in 24th CoC Meeting”. The two discussion methodology was up for consideration that is one based on the share of voting of each financial creditor and other based on security structure of the Financial Creditor.
Even on accepting the argument saying that distribution methodology which was circulated by Process Advisor to all Members of CoC which was also discussed in the meeting it having not specifically approved in the minutes resolution can be read only to mean that distribution methodology based on security structure have been approved - it is clear that CoC expenses which is figured at 4.01 Crores was to be repaid by the members of the CoC which has contributed the COC expenses along with resolution proceeds which clearly indicates that said amount has to be deducted from Rs. 351 Crores Upfront amount.
The payment towards fee of Process Advisor to the CoC was to be contributed by the CoC which required to be reimbursed from the proceeds of the Resolution. The Respondents’ claim deduction of Rs. 4.01 Crores which is under heading COC Expense and Future Litigation Fund which is at page 18 of the Reply of Respondent No. 2 and 3, as held above COC expenses could have been very well deducted from the upfront payment but there is no requirement of deduction of future litigation fund. No Litigation Fund was required to be created nor for that said period any amount need to be deducted from the upfront payment - out of amount of Rs. 4.01 Crores only that much amount need to be deducted, which is COC expenses i.e. which is required to be reimbursed to the CoC as per their contribution.
The Adjudicating Authority ought not to have directed the Monitoring Agency to determine and appropriate the amount. The Adjudicating Authority itself could have considered the issue since there was divergent statement raised before the Adjudicating Authority which is reflected from the pleadings in the Application which was filed by the Respondent No. 1 i.e. I.A. No. 724/KB/2022 and detailed reply filed by the Appellant. The issue as to what is the correct amount to which the Appellant is entitled under the Resolution Plan was very much disputed and raised before the Adjudicating Authority and the Adjudicating Authority ought to have proceeded to determine and ought to have directed for issuance of NDC only after direction for payment of the Resolution Plan.
The Respondents are directed to make the payment of principal balance amount of Rs. 248,02,09,427/- along with accrued interest of Rs. 14,94,28,383/- (upto 10th July, 2024) along with further interest payable upto date of payment within one week from this order which amount shall be transferred in the account, details of which has already been communicated by the Appellant to the ex-RP - Out of Rs. 4.01 Crores which has been deducted towards COC expenses and Future Litigation Fund, only COC Expenses are required to be deducted and any amount towards Future Litigation Fund need not be deducted from the upfront payment. The Ex-RP shall recalculate the amount towards COC Expenses which need only to be deducted from the upfront payment and any amount kept under Future Litigation Fund need to be distributed to the Financial Creditors as per their Security Interest, which amount need to be paid to the Appellant as per its share of security interest and shall be paid by the Resolution Applicant - the Appellant shall issue a No Dues Certificate and execute the assignment agreement in terms of approved resolution plan and hand over title deeds of the corporate debtor within two weeks from the date of the receipt of the payment.
Appeal disposed off.
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2023 (10) TMI 1120
Rejection of application seeking a direction to the Resolution Professional to convene a meeting of the CoC to comply with the provision of Regulation 39(3)(b) of the CIRP - HELD THAT:- The time for filing the Affidavit already extended by order dated 18.09.2023. Now the CoC having approved the Resolution Plan with voting share of 99.84%, Resolution Professional seeks liberty to file an application before the Adjudicating Authority for approval of the Resolution Plan - Considering the facts of the present case, the highest Resolution Plan having now received the majority of votes, the Resolution Professional may file an application before the Adjudicating Authority for approval of the plan which may be done within three weeks from today.
Nothing survives to be decided in this Appeal - Appeal disposed off.
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2023 (10) TMI 1119
Violation of principles of natural justice - impugned order passed without perusing the law of the land (the Code) and also ignoring the precedent cases - Levy of penalty u/s 70 of IBC - HELD THAT:- It is concluded that clearly the Adjudicating Authority erred in passing the Impugned Order overlooking the law of the land (the Code) and also ignoring the precedent cases settled by this Appellate Tribunal.
The impugned order cannot be sustained - matter remanded back to the National Company Law Tribunal, New Delhi Bench, Court - III to have a fresh look of the case and decide in accordance with the law and pass suitable order.
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2023 (10) TMI 1096
Existence of vested right to file a Resolution Plan pursuant to the process in published Form – G - approval of Resolution Plan - HELD THAT:- The Appellant does not have any vested right in submitting the Resolution Plan in the absence of filing one Plan pursuant to Form – G, and taking the right steps at the appropriate time, specifically keeping in view that the Appellant had attended the 5th CoC Meeting when the entire contours of the Resolution Plan was discussed.
Reliance on the Judgment of the Hon’ble Apex Court in the matter of MAHARASHTRA SEAMLESS LIMITED VERSUS PADMANABHAN VENKATESH & OTHERS [2020 (1) TMI 903 - SUPREME COURT] in which the Hon’ble Apex Court has held Certain allegations were made by the MSL over failure on the part of the Resolution Professional in taking possession of the assets of the corporate debtor and subsequently in their failure in handing over the same to MSL. These issues are factual.
The ratio of the aforenoted Judgment directly contradicts the contention of the Appellant that the bid value has to match the liquidation value. It is significant to mention that the Resolution Plan has already been implemented and we do not wish to set the clock back.
This Tribunal is of the considered view that there is no illegality in the Order of the ‘Adjudicating Authority’ dismissing the Intervention Application - Appeal dismissed.
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