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Home Case Index All Cases Insolvency and Bankruptcy Insolvency and Bankruptcy + Tri Insolvency and Bankruptcy - 2021 (4) TMI Tri This

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2021 (4) TMI 893 - Tri - Insolvency and Bankruptcy


Issues Involved:
1. Maintainability of the Petition under the provisions of the Insolvency and Bankruptcy Code (IBC).
2. Whether the Petitioner approached the Adjudicating Authority (AA) with clean hands.
3. Estoppel against the Petitioner from invoking the provisions of the IBC again after previously filing a similar petition against the Proforma Respondent.

Detailed Analysis:

Issue 1: Maintainability of the Petition under the provisions of the IBC
The Tribunal examined whether the petition filed under Sections 7 and 60(5) of the IBC was maintainable. It was noted that Section 60(5) allows for applications or proceedings by or against the corporate debtor or corporate person, but it does not entitle a party to file a fresh company petition to initiate group insolvency. The Tribunal emphasized that the Association had already moved against the main Corporate Debtor (Skylark Mansions Pvt. Ltd.) in an earlier petition (C.P. (IB) No. 389/BB/2019), which was under appeal. Given that the issues raised in the current petition were already under adjudication in the pending appeal, the Tribunal concluded that the instant petition was not maintainable.

Issue 2: Whether the Petitioner approached the AA with clean hands
The Tribunal observed that the Petitioner had previously filed a petition against Skylark Mansions Pvt. Ltd., claiming a default of over ?220 Crores, which was admitted by the AA. The current petition, filed by the same Association but claiming a default of over ?432 Crores, sought to initiate group CIRP against both the Corporate Debtor and Skylark Mansions Pvt. Ltd. The Tribunal noted that the issues raised in the current petition were already known to the Petitioner during the earlier proceedings. The Tribunal found that the Petitioner had failed to furnish the total registered number of members and was resorting to filing applications by abusing the provisions of the Code. Therefore, the Tribunal concluded that the Petitioner had not approached the AA with clean hands.

Issue 3: Estoppel against the Petitioner from invoking the provisions of the IBC again
The Tribunal held that the Petitioner was estopped from filing the present petition after having taken all pleas in the earlier petition and not impleading the Corporate Debtor in that petition. The Tribunal emphasized that the matter was sub judice, and appeals were pending before the Hon’ble NCLAT. The Tribunal also noted that initiating CIRP against the holding company (Skylark Mansions Pvt. Ltd.) would not automatically apply to its subsidiary (Ithaca Estates Pvt. Ltd.) unless the subsidiary had also become insolvent.

Conclusion
The Tribunal concluded that the Petitioner had failed to make out a prima facie case for initiating CIRP as prayed for. The Tribunal emphasized that the Corporate Debtor appeared to be a solvent company and should be given an opportunity to fulfill its obligations to the home buyers. Consequently, the petition was dismissed.

Order
The petition (C.P. (IB) No. 201/BB/2020) was dismissed with no order as to costs.

 

 

 

 

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