Summary of NCLAT Judgement on IBC 2016 for September 2021

Sr
No

India Pvt. Ltd.VS M2N
Interiors (89/CH/2021)

• The Appeal is filed by CD assailing an IO passed by NCLT, Chennai Bench on following grounds:

a) AA has traversed beyond its powers and
jurisdiction by reviewing its own Order dated 25/02/2020.

b) The cause title of the Petition filed by the OC/R. had mentioned the name of the Proprietorship Concern instead the name of Proprietor.

• R. referring to the judgement of Neeta Saha Vs Mr. Ram Niwas Gupta in Appeal No. 321 of 2020 submits by filing a Memo that the Application does not require any correction or amendment.
• In an Application, Proprietorship name i.e., M/s. M2N Interiors is represented by its Sole Proprietor (Murali), reflecting the name of sole proprietor itself would show that the Application is being represented by the Proprietorship Firm as well as the Proprietor.
• As S. 2 of IBC applies to Partnership Firms and Proprietorship Firms. As per Sub Clause (f) of Section 2, the person defines in Sub Section 23 of Section 3 includes a Partnership Firm.
• NCLAT upholds the IO and Appeal is dismissed.

No illegality in reviewing its own Order by NCLT in exceptional circumstances

Limited VS Bhairavi Cargo and Logistics Private

Limited

(107/CH/2021)

• The Appellant being an OC has filed the instant Appeal aggrieved by the IO passed by Chennai
• Bench whereby AA dismissed Appellant’s
  Application filed u/s 9 of IBC against CD/R on the ground of pre-existing of dispute.

The only issue involved is whether AA rightly dismissed the Application on the ground of pre- existing of dispute between the parties?

• The Appellant had sold/transferred MEIS
  Licenses between the period of July 2018 and November 2018 to CD through different transfer letters and raised periodical invoices for Licenses sold.
• CD remitted the money into the personal account of ex-employees of the Appellant instead of Appellant’s Bank Account.
• As per Notice dated 26/10/2019 issued by CD demanded payment of Rs. 12,02,995/- from OC
• Appellant replied on 15/11/2019 denying all the allegations of CD made in the Notice & stated that the payments against the invoices were not made to the Appellant.
• Demand Notice was issued by OC on 26/11/2019.
• As per NCLAT findings, the above events are prior to issuance of Demand Notice. Therefore, it takes prima facie view that there exists dispute prior to issuance of Demand Notice.
• Appeal is dismissed upholding the IO Order passed by AA, Chennai bench.

Pre-existing dispute.

• The Appeal is filed by the Suspended Director of CD assailing an IO passed by NCLT, Delhi Bench, whereby it dismissed the filed Application u/s 12A on the ground that the same was not filed by OC on whose Application CIRP was initiated.
• Application u/s 9 of IBC was filed by R3 was admitted on 23/01/2020.
• An Appeal was filed against an ad
• mission Order whereby Appellate Tribunal held that out of two claims of OC one of Rs. 50,32,028/-(Claim1) was declared not tenable and another claim for Rs. 3,67,200/-(Claim 2) was already paid by CD
• After satisfying the sole claim of SBI(F.C.)
  withdrawal resolution was approved by CoC
• Appellant submitted the FA form as OC denied to sign the form on the ground that its claim1 has not been considered though it was declared untenable by Appellate Authority & Hon’ble S.C.
• Thus, NCLAT exercising powers under Rule 11 of National Company Law Appellate Tribunal, Rules, 2016 set aside IO & CIRP proceedings.

Withholding the signing of FA form is by the applicant who initiated CIRP on illegal grounds cannot be
acceptable.

Electricals
Limited VS
AtulRajwadkar (983/ND/2020)

• The Appeal is filed to set aside the IO dated 11/09/2020 passed by NCLT, Mumbai Bench & seeking directions that R2 & R3 to deposit the money.
• The Appellant supplied to CD in normal course of business when CD was not in CIRP.
• As the Appellant was under CIRP vide AA Order dated 17/09/2019 due to its bad financial
  condition requested all the debtors to release their dues.
• Appellant received payment on 23/07/2019 to 15/10/2019 from the bank account of CD which Appellant was asked to refund by the IO
• Appellant critically stated that they have not done any wrong by withdrawing the money as it was in the ordinary course of business and S. 66(1) of IBC, 2016 should not apply.
• Liquidator/R1 stated that funds were withdrawn during the CIRP of CD & since no claim was filed by OC with RP clears that there was no claim & the transaction done was fraudulent.
• NCLAT upheld that Appellant violated S. 14 of IBC by withdrawing the money during CIRP of CD Appeal was dismissed.

During CIRP no fund can be withdrawn from the CD’s bank
account

Resorts and Hotels Pvt. Ltd (95/CH/2021)

• The Appeal is filed by CD being aggrieved with the IO dated 30/03/2021 whereby an Application filed by R. u/s 7 of IBC was admitted.
• Though, the present Application has been settled after admission before making the Public Announcement. The IBC does not bar the Tribunal to Admit a matter which was settled after Admission.
• Contention of the Appellant is that AA had failed to appreciate that it has no jurisdiction to
  adjudicate the matter under the IBC since the Respondent is neither a ‘FC’ nor an ‘OC’
• An argument is advanced by Appellant that there is no provision for ‘return of money’ together with interest under the ‘Share Purchase
  Agreement’ between the parties and therefore, the Respondent is not a ‘FC’ viz-a-viz the Appellant

• Appellant had entered into Share Purchase
  Agreement (SPA) with Respondent to purchase100% shares of the CD/ Appellant for a
  consideration of Rs.33,08,00,000/-.· An advance payment of Rs. 1,00,00,000/- was made by Respondent & the same was ack. by CD in various letters.· As per the addendum to SPA, Appellant
  instructed the Respondent to make payment directly to its Creditors· Creditors of the Appellant had not accepted the settlement amount and denied to accept any payment from Respondent on behalf of the Appellant consequently the SPA had not fructified and that Appellant promised to pay back the advances paid to the Respondent. .· Accordingly, Respondent filed an Application u/s 7 of the IBC which came to be admitted by the AA. Thereafter, Appellant entered into settlement with the Respondent and withdrew the admission Order. The Appellant failed to abide by the settlement and hence, the Respondent preferred Contempt Application and sought restoration of Admission Order which was allowed by the AA.· NCLAT stated that a promise to repay the advanced sum paid by the R. to it, failure to do itis not only a violation of the SPA dated
  21/11/2012 but also the non-payment of amounts comes squarely u/s 5(8) of IBC pertaining to Financial Debt &R. is a F.C.· Therefore, NCLAT held a view from the above observation that an Order passed by AA admitting an Application u/s 7 of IBC does not suffer from any material irregularity.
• Hence, the Appeal fails on merit & dismissed.

An amount disbursed against the
consideration for advance payment with a promise to refund, it falls within the ambit of Financial Debt as per the law.

• The Appeal is preferred by the OC being
  aggrieved with the IO passed by NCLT, Delhi Bench whereby an Application for considering the claim regardless of the delay was rejected on the ground that it’s not liable to be accepted as per Reg. 12(2).
• CIRP against CD initiated on 27/01/2020.
• Due date for accepting the claims from Creditors was 12/02/2020 & Appellant missed this
  publication & was totally unaware of the same.
• Appellant after taking basic understanding about CIRP submitted its claim to RP in Form B vide speed postdated 22/01/2021 and & email on 24/12/2020.
• But the claim was rejected by RP stating that the claim was not received on time & resolution plan was submitted by one Resolution Applicant to RP which is pending for consideration by the CoC.
• Appellant relying on the rulings passed by the Hon’ble NCLAT Principal Bench, wherein the amended Reg. 12(2) of the IBBI had been held to be directory and not mandatory and that the claim of the Appellant ought to have been admitted in view of the settled law as the CIRP was still in progress and no Resolution Plan had been approved / finalized till date.
• RP contended that Reg. 12(2) of the IBBI provide the claim can be admitted after the
  commencement of the CIRP within a period of 90 days, but in the present case this statutory time period is also expired.
• NCLAT observed that as per above discussion there is no illegality in IO
• Due to lack of merit in the Appeal it was dismissed.

Claim
submitted beyond the time as per IBC & after
the expiry of 90 days from commencement of CIRP and after approval of Resolution Plan by COC is not
acceptable.

• The Appellant being an OC was dissatisfied with the IO passed by NCLT, Bengaluru Bench on 07/12/2020.
• Appellant had filed an Application u/s 9 of IBC against R3 for initiating CIRP.
• The matter which was listed on 07/12/2020 was later adjourned to 11/12/2020 and no intimation was received for pronouncement of the Order, also the same was not uploaded on NCLT website portal.
• Due to typo error in R3’s name, Appellant came to know about uploading of an Order dated 07/12/2020 on 06/02/2021.
• The prime contention of Appellant was that the IO is in negation of the ‘Principles of Natural Justice’ and Rule 150 and 151 of NCLT Rules, 2016 as it was neither pronounced on 07/12/2020 nor listed for pronouncement nor finally heard on the said date, especially, in the teeth of the main Company Petition (IB/116/BB/2020) was only stood over/adjourned to 11/12/2020.
• After perusal of the facts, NCLAT states that when the matter was reserved ‘For Orders’ on 11/12/2020 and not being uploaded on NCLT website certainly the main Petition could not have been pronounced on 07/12/2020.
• NCLAT opined that judgement not pronounced at all is a nullity in the eye of law, considering the pronouncement is primarily a judicial act which is the ‘Sanctum Sanctorum of any judicial proceedings’ in our ‘justice delivery system’.
• NCLAT conclude by stating that as the IO was never pronounced on 07/12/2020 by AA this ‘Tribunal’ without delving deep into the matter and not expressing any opinion on the merits of the matter, any further, at this stage, simpliciter sets aside the said IO.

Order not pronounced in open Court by AA is nullity before Appellate Tribunal.

Limited Vs
Muhlenbau Equipments Private

Limited

(136/CH/2021)

• The Appeal is preferred by the OC assailing an IO passed by AA whereby Appellant’s Application filed u/s 9 of IBC was rejected on the ground of pre-existing dispute.
• Appellant on receipt of Purchase Order supplied goods & raised two invoices both dated
  09/12/2016.
• Appellant issued Demand Notice dated
  13/11/2019 on failure of receiving full payment of the invoices.
• Appellant filed an Application u/s 9 of IBC, on receiving no reply from R.
• R. vide mail dated 03/11/2020 threatened the Appellant to withdraw the case to get the Form-C and stated that the work has not been completed to its satisfaction.
• AA disposed of the Application with a direction to the Respondent to settle the claim of the Appellant as promised within a period of 3 months from the date of receipt of copy of the Order.
• R. did not response even after filing the
  Application before AA nor paid any dues.
• NCLAT observed from R. email that in spite of being aware of filing of Application willfully avoided the payment of its liability and intend to raise an unsuccessful dispute after filing the Application.
• NCLAT stated that as the case has been
  established before AA of existing of debt & default, the AA has to admit CIRP Application. Anything otherwise, is patently illegal and cannot with-stand to the scrutiny of law.
• R. failed to establish the existence of dispute prior to issuance of Demand Notice & deliberately did not appear which is disrespect towards Tribunals.
• NCLAT setting aside the IO directed AA to admit the Application & initiate CIRP.

Failure of CD to establish the existence of
dispute prior to issuance of
Demand Notice

• The Appeal is filed by one of the Director of FC against an IO passed by AA dismissing the Application u/s 7 of IBC on the ground that no board resolution authorizing the Appellant is filed.
• Appellant is a director and 50% Shareholder of both the FC Companies i.e. Vision Infotel India Pvt. Ltd. and Vision Infracon India Pvt. Ltd.
• Mr. K Siva who holds remaining 50% share of the FC Companies is a Managing Director and his wife holds 4% shareholding in the R. Company (CD).
• In spite of several requests Mr. K Siva refused to sign the Board Resolution to initiate legal proceedings against CD
• Appellant placing reliance on the mentioned judgements states that as per doctrine of derivative action Appellant can maintain S. 7 Application.
• The issue to be addressed by NCLAT whether Director and Shareholder of the Company can file the Petition u/s 7 of the IBC on the doctrine of derivative action.
• NCLAT affirming with the AA Order states that as per a specific notification by the Central Government u/s 7(1) of the IBC, Application on behalf of FC a guardian, an executor or administrator of an estate of a FC, a trustee and a person duly authorized by the Board of Directors of a Company may file.
• In such situation, doctrine of derivative action cannot be applied. Hence, AA has rightly held that the Petition is not maintainable. Therefore, the Appeal is dismissed.

Authorisation by way of BR is an essential ingredient to
file Application on behalf of the Creditor

• The Appeal is preferred by Appellant against an IO dated 10/03/2021 passed by NCLT,
  Ahmedabad Bench whereby Appellant’s claim was rejected on the ground that it was belatedly filed.
• The CIRP initiated on 12/03/2020, due to
  lockdown the last date of receipt of claims was extended till 16/08/2020 & Appellant filed its claim on 04/09/2020.
• Appellant was intimated about CIRP vide email dated 28/07/2020.
• IRP/RP should not bound to collate the claims if they are received outside the prescribed time limit.
• NCLAT observed referring Director General of Income Tax’ Vs. Synergies Dooray Automotive Ltd. that once the RP is approved it shall be final and not subject to modification even if the statutory claims are not included in the Plan.
• In the instant case as the claim of the Appellant was incorporated in the I.M. for consideration of the Prospective Resolution Applicant in the

Approved Resolution Plan is
applicable even on statutory dues even though its excluded & RP is not bound to collate the
claims received after the due date
thereby delaying CIRP.

11.

20/09/2021

Pandurang Ram Shinde VS Vijendra Kumar Jain (138/ND/2021)

• Hence, there is no dereliction of duty on behalf of the IRP/RP.
• The Appeal is dismissed on lack of merits.
• Appeal is preferred by Suspended BOD against an IO passed by NCLT, Mumbai Bench whereby an Application u/s 7 of IBC was admitted.
• Appellant had earlier extended unsecured loan of Rs. 1,14,91,955 to CD
• CD provided some goods/services to three entities (a)Meltek Infosystems Pvt. Ltd. (b) Micros M Technichems Pvt. Ltd. and (c) Maharashtra
  Shetkari Sugar.
• Since, the CD was yet to receive amt from above mentioned entities on 01/04/2017, Appellant on 31/03/2018 squared off total Rs. 91,56,687/-
  receivables from the above three entities the unsecured loan which the Appellant had against its own unsecured loan.
• Application for CIRP was filed on 06/03/2018 & admitted on 18/12/2018 & Appellant was allowed to continue as CEO to keep CD as a going concern.
• In absence of any Resolution Plan, Liquidation Application was filed on 05/11/2019 & Appellant was removed as CEO on 14/11/2019.
• RP raised two issues on 24/07/2020:

i) Appellant sold a car on 31/12/2018 after
initiation of CIRP at an undervalue without permission of the RP.

ii) The squaring off by the Appellant was preferential transaction u/s 43 and Appellant was liable to pay Rs. 91,56,687/-

• Appellant contended that IO had been in violation of the Principles of Natural Justice stating that presence of Mr. Navin Arora was wrongly marked by AA as he was in actual representing Appellant in MA No. 3239 of 2020 whereas he was marked present in IA No. 1108 of 2020.
• Further, Adv. Narendra Kumar Sharma was representing the Appellant in IA No. 1108 of 2020 did not get Video Conferencing Link. Hence, he could not bring to the notice of AA that he had filed Reply on 04/01/2021.
• NCLAT rejected Appellant’s this contention stating that he cannot take the luxury of
  appointing more than one advocates for his different MAs in one matter only considering it to be the means to protract the matter.
• Apart from that nothing proved that Mr. Navin apprised to AA about that he not being instructed in IA 1108 of 2020 or that there were different advocates appearing. Hence, its rejected.
• NCLAT addressing to RP’s first issue stated that prima facie it shows car which was in the name of CD was sold by Appellant to Mr. Ravindra Yadav after initiation of CIRP contravenes S. 14 of IBC. Hence, the transaction of sale of a car stands to be ignored & car would continue to be property of the CD and liable to be taken possession of by the RP.
• NLAT addressing to RP’s second issue takes a view that Appellant has violated S. 43 of IBC by transfer of interest of the CD (which was to receive the amounts from the three entities) for own benefit of receiving back unsecured loan given to CD This resulted in detriment the other creditors of the CD
• Therefore, the Appeal is disposed off by remitting the matter back to AA directing the RP to deal with the car in terms of Resolution Plan approved.

Click here for the Judgement

Transaction done after initiation of CIRP to be consider as violation of moratorium period.

Transfer of interest of CD after filing of Application under CIRP will be considered as Preferential Transaction.

• The Appeal is filed by the Liquidator of CD who assails IO passed by NCLT, Ahmedabad Bench whereby AA declined to give benefit of amended Clause 12 of Schedule I of IBBI (Liquidation Process) Regulations, 2016.
• AA placing reliance on the circular dated
  26/08/2019 issued by IBBI passed the IO
• Liquidation Order was passed on 25/04/2019.
• In spite of liquidator’s attempts, sale of CD assets through public auction did not succeed.
• The amendment to the Schedule I Clause 12 of the Regulations was made on 25/07/2019 which substituted period of 15 days by introducing 90 days as a period to make the payment of balance consideration.
• Amicus Curiae was appointed by NCLAT who brought on record material for the issue as follows:

i) The former limitation of 15 days was practically difficult for liquidator & auction purchaser as it was not possible to deposit entire sale
consideration within 15 days.

ii) Due to implementation gap & on receipt of feedback from stakeholders IBBI considered & concerned amendment in Regulation was brought in.

iii) Circular dated 26/08/2019 issued by IBBI stated that the said amendment will be applicable only to Liquidation processes, which commenced on or after 25/09/2019.

iv) It was submitted that applicability of amendment i.e. retrospectively or prospectively, could not be decided by issuing a Circular.

v) Referring S. 241 of IBC while comparing Rules, Regulations with Circular it was duly pointed out that former needs to be placed before Parliament whereas later does not require the same.

vi) In opinion of Amicus Curiae, the object of amendment could be deferred if amendment is applied prospectively.

• NCLAT held that the Circular dated 26/08/2019, is not legally enforceable to interpret applicability.
• Hence, modifying the IO, NCLAT allowed
  Appellant to apply and enforce amended Clause 12 of Schedule I of the Liquidation Regulations to the Liquidation process even though initiated before 25/07/2019.

Courts are only authorized to interpret the applicability of amendment.

Circular cannot be substitute rules, regulations a of formed u/s 196 r/w 240, of IBC. 241

International

Pvt Ltd

Through Its

Liquidator &

Anr.

(293/ND/2020)

• The Appeal is preferred by NSEL aggrieved by the IO whereby AA allowed to set aside the Order dated 22/10/2018 vide which accounts of the CD in branches of the SBI were attached.
• NSEL being a platform for trading in commodities, CD abiding by its rules-initiated trading on the platform and owe Rs. 51.02 crore to NSEL/OC
• CD was declared as defaulter by NSEL on failure to pay the amount & chargesheet was filed against
• CD at Maharashtra Protection of Interest of Depositors (in Financial Establishment) Act, 1999 (MPID Act).
• NSEL submitted that the Government of Maharashtra under MPID Act attached the properties & Bank account of CD, the same was communicated to SBI on 22/10/2018.
• Application u/s 7 of IBC against CD was
  admitted on 30/08/2017.
• Since the attachment of account was after CIRP,
  RP filed an Application with AA to remove the attachment as its in violation of S.14 of IBC.
• Hence, the IO was passed.
• NSEL contended that S.32A of IBC could not be
  attracted towards properties which are neither part of a Resolution Plan nor sold as Liquidation estate.
• It is also claimed that entities committing fraud
  cannot be protected by taking advantage of IBC as it does not have overriding effect on MPID.
• CD stated that to keep the entity as a going
  concern liquidator is bound to take over the assets of the CD & proceeds from the sale would be distributed as per S. 53 of IBC. Hence, the attachment of accounts cannot obstruct under IBC.
• NCLAT referring Article 246 of the Constitution
  of India and Hon’ble Supreme Court matter in “Hoechst Pharmaceuticals Ltd. v. State of Bihar” [(1983) 4 SCC 45]. views that there is no difficulty with regard to primacy of IBC and applying S.238 of IBC.
• NCLAT did not accept NSEL argument and submissions made regarding the relief could have been sought only under the MPID Act by liquidator.
• Further, it states that u/s 32A explanation below sub-section 2 makes it clear that no action shall be taken against the property of the CD in relation to an offence committed prior to the commencement of CIRP and the action includes the attachment, seizure, retention or confiscation of such property under such law as may be applicable to the CD
• NCLAT referred the judgement of in the matter of “Directorate of Enforcement vs. Manoj Kumar Agarwal” regarding attachment of property of CD and upheld that it cannot come in the way of IBC when CD is at the stage of Liquidation.
• NCLAT concluded that S. 14 of IBC would apply for attachment under the MPID Act, and the provisions dealing with powers of IRP, RP and duty to take into custody and control the assets of the CD would be enforceable.
• Any attachment to such extent under the State Act will have to give way to IBC, and obstruction has to be removed.
• Lastly the chart depicts that property of promoters/individuals were also attached but NCLAT allowed actions against personal properties under MPID as IBC is concerned with property of CD only.
• The Appeals were disposed off and IO passed by AA was maintainable.

Attachment of CD properties at the stage of Resolution Plan passed or Liquidation, under MPID Act for the offence committed before initiation of CIRP is in violation of S. 14 of IBC.

Developers Private Limited (392/ND/2021)

• The RP of CD preferred the instant Appeal against an IO passed by NCLT, Mumbai Bench whereby AA disagreed with the success fees of Rs. 3 crore that was approved by CoC while approving the Resolution Plan.
• Appellant contended that approval of success fees is within a commercial decision of CoC and AA could not have been interfered.
• The issue to be decided by NCLAT is whether the ‘success fees’ could be charged, and the manner in which it has been charged.
• Appellant contended that success fees is part of commercial wisdom of the CoC & in case of disagreement of AA with the same then the Resolution Plan has to be sent back to CoC.
• Acts performed by Appellant like handling of CD’s Rs. 1089 crores of assets, handling of different classes of stakeholders which includes 100 FCs, 400 approx homebuyers convening smoothly their meetings with Successful Resolution Applicant etc. was referred to justify the grant of success fees.
• As per Amicus Curiae appointed by NCLAT
  stated that in the IBC and the Regulations, there is no express provision for grant of success fee.
• RP can charge success fees only in reasonable
  manner, it was observed that in the first meeting where RP was appointed at that stage fee was not fixed but at the last moments when Resolution Plan is being approved higher amounts as fees are squeezed in it and then to hide behind Resolution Plan is incorrect.
• The quantum of fees can be fixed by the CoC but
  it would be subject to scrutiny by the AA as what is reasonable fee is context specific and it is not part of the commercial decision of the CoC.
• NCLAT agrees with Amicus Curiae and states
  that fees payable should be directly related to and necessary for the CIRP.
• Also, a Circular dated 12/06/2018 issued by IBBI
  cannot be equated with the Rules and Regulations framed under the provisions of the IBC.
• NCLAT hold that success fees’ which is more in
  the nature of contingency and speculative is not part of the provisions of the IBC and the Regulations and the same is not chargeable.
• Therefore, on insanity Appeal is dismissed.

Success fee charged by RP should be decided in transparent manner and AA has the
jurisdiction to interfere if it violates IBC.

Success fees does not fall within commercial wisdom of CoC

• The IO passed by NCLT, Ahmedabad Bench, against which Appeals are filed, allowed Application permitting the Successful Resolution Applicants comprising of (i) ‘Suraksha Asset Reconstruction Limited’, (ii) ‘Lakshdeep  Investment and Finance Private Limited’ and (iii) ‘Suraksha Reality Limited (SRA) to withdraw the Resolution Plan and also directed the RP- Mr. Shailen Shah to return the performance security given by the Resolution Applicant by way of Bank Guarantee.

Depicting the Facts:

• CIRP initiated on 20/02/2018 & final plan was submitted by SRA on 13/11/2018.
• RP, on seeking majority approval proceeded to
  file Resolution Plan with AA on 18/11/2018.
• Performance Guarantee was also submitted by SRA.
• SRA had also renewed the Bank guarantee on
  19/05/2020 in hope that the approved Resolution Plan would get approval of the AA
• Later, SRA sought to withdraw the plan claiming
  that there was mis-statement of facts in IM.
• Also, on passage of 600 days Resolution Plan has
  lost its relevance was claimed by SRA.
• It was argued by CoC that there is no provision in IBC to allow withdrawal of an approved Resolution Plan.
• SRA’s claim of deterioration of business as one of the reasons for withdrawal was contended by CoC stating that due diligence, site visits were conducted by SRA & there was no denial of access of any information. Hence, the claim is unacceptable.
• NCLAT referring the judgment in the matter of
  “Ebix Singapore Private Limited vs. Committee of Creditors of Educomp Solutions Limited and Anr” holds that SRA could not have been allowed to withdraw the Resolution Plan after it had been approved by the CoC. The grounds raised by SRA of delay also are clearly untenable.
• NCLAT concluded that after the approval of plan SRA could not be heard making the complaints regarding incomplete information to withdraw from the Resolution Plan.
• Hence, the IO was put on hold & Appeal is upheld and SRA were directed to keep the Performance Bank Guarantee alive till and subject to the decision of these Appeals.

Resolution Plan once approved by CoC cannot be withdrawn.

• Appellant along with her husband had booked apartment in the project of CD and builder buyer agreement was executed on 14/08/2010.
• Appellant was accommodated in alternate
  premises owned by Ms. Aarti Saraf/R2 due to non-delivery of the premises even after four years.
• CIRP against CD was initiated on 10/01/2019.
• Legal notice was sent by R2 to Appellant asking for rent payment from Oct, 2019 & to vacate premises, suit was filed for same.
• The Appellant’s Application before AA for
  protection against eviction was rejected on the ground that CD has nothing to do with the rent agreement, hence, the present Appeal.
• In accordance with rent Agreement, Mr. Vidur Bhardwaj, the director of the Three C Infra Pvt. Ltd. were to be made rent payments.
• The project Lotus Panache was first started by Three C Infra Pvt. Ltd. itself and thereafter it was co-shared with M/s. Granite Gate Properties Pvt. Ltd.-CD
• Appellant contends that till the flat allotted to her is not provided she could not be evicted from the alternate premises & the liability to pay the rent is of R3.
• The dispute in the present matter is mainly about rent agreement dated 27/11/2018 which was executed between R2 & Appellant.
• R2 claims that it is her private dispute with Appellant and CD has nothing to do with it.
• The arrangement of accommodating in alternate premises is not part of Builder-Buyer Agreement or any subsequent Agreement to make CD liable to maintain Appellant in a rented/alternate premises.
• NCLAT’s takes a view that since parties have not brought on record anything to show that all the allottees of the CD are being given any
  preferential treatment by making CD liable to pay rent of alternate premises provided, it would not be in consonance with the scheme of IBC as it appears that one of the directors of the holding company gave some preferential benefit to the Appellant.
• Also, if there is no prior contractual agreement with CD it cannot be forced to continue with the same treatment during CIRP.
• Hence, considering the above reasons relief
  sought by Appellant cannot be granted & it is disposed off.

Preferential Treatment cannot be
given to only one creditor of CD during CIRP.

• The Appeal is filed by suspended management of CD as its Application for setting aside the ex- parte Order, whereby CIRP was initiated against CD u/s 424 (1) of the Companies Act, 2013, r/w Rule 11 of the NCLT, Rules, 2016 was disposed of on the ground that at belated stage the AA is unable to use power under Rule 49 of NCLT Rules, 2016.
• Application u/s 9 of IBC was against CD was admitted by AA vide ex-parte Order dated
  27/05/2020.
• Appellant submitted that the Application for setting aside ex-parte Order was filed on
  06/11/2020, CoC was constituted on 20/11/2020 and at their it was informed about the pendency of the Application as well as settlement arrived between parties.
• Appellant contended to set aside IO on the ground that they didn’t receive notice.
• The prime issue to be decided is whether the AA can set aside the ex-parte Order for initiating a CIRP u/s 9 of IBC.
• NCLAT stated that it’s a settled law that once the Application u/s 7 or 9 is admitted and CIRP initiated, such proceeding is in rem.
• AA may in exercise of its powers u/s 12A of the IBC r/w Reg. 30A of the IBC (Insolvency Resolution Process for Corporate Persons) Reg., 2016 allow or disallow an Application for withdrawal or settlement. before a CoC is constituted, after constitution cannot set aside even an ex-parte Order. NCLAT held that in the instant case Application of CIRP was admitted on 27/05/2020, Application for setting aside ex-parte was filed on 06/11/2020, CoC was constituted on 20/11/2020 & AA can consider the Application for setting aside ex-parte admission order but after constitution of the CoC the Ld. AA cannot in exercise of power under Rule 49(2) of the NCLT Rules, 2016 set aside the ex-parte admission order. Ld. AA has passed the IO after constitution of CoC i.e. on 23.03.2021, therefore, NCLAT did not find any illegality in the IO.
• Hence, Appeal is dismissed.

Ex-parte Order passed for admitting CD into CIRP can be set aside by AA under NCLT Rules if Application for same has been filed before
constitution of CIRP and
Order for the same has been passed before
constitution of COC.

• The promoter/erstwhile Chairman of CD has filed the instant Appeal assailing an IO passed by NCLT, Mumbai Bench whereby an Application u/s 7 of IBC filed by R. was admitted.
• The R. being Cooperative Credit Society, working capital term loan facility was availed by CD.
• The grant of Rs. 5crore was consortium loan.
• Application u/s 7 of IBC was filed on 22/11/2019.
• Appellant contends that MA filed by R. seeking amendment in Petition was withdrawn hence, its claimed that Petition with defects was admitted.
• Appellant claims that there was violation of Principles of Natural Justice as he was served with notice of date of hearing on 04/04/2020 when there was nationwide lockdown.
• Appellant also contends that the Petition is time barred.
• A reply was filed by Appellant claiming it to be for MA and not to the main Petition.
• NCLAT rejects Appellant’s above claim as on perusal of Reply filed it states that Appellant was filing this Affidavit for the purpose of opposing the Company Petition
• It is observed that though MA was withdrawn but Bench had directed that amendment & additional documents to Petition should be filed by way of an Affidavit.
• R/FC has obtained Recovery Certificate u/s 101 of the Maharashtra Co-operative Societies Act on 21/01/2015 & re-payments has been made till March, 2016.
• Thus, NCLAT reject the claim of Appellant that CD did not get opportunity to file Reply to Petition.
• NCLAT rejects Appellant’s claim on violation of Principle of Natural justice as the stand of not serving notice due to lockdown does not hold any stand in electronic age.
• Also, communication by FC to CD regard to the dates on which the matter is coming up was noticed. This implicates that CD appears to have resorted to studied silence.
• NCLAT on addressing the issue of time barred states that Certificate of Recovery would give fresh right to recover the amounts for which the Recovery Certificate has been issued & also part payments has been made. Hence, Application u/s 7 cannot be time barred.

Limitation

• The Appellant has preferred the present Appeal against an IO passed by NCLT, Ahmedabad Bench whereby Appellant was directed by AA to refund the amount & deposit in account of CD with interest as it forms part an Asset of the CDFacts of the case:· CD had entered into an agreement with the Indian Navy for the period of 180 days starting from 14/07/2016 for normal refit of a Ship namely ‘INS Savitri’ for a consideration of Rs. 33,49,04,579/-.
• As per the features of contract, Appellant
  furnished a Performance Bank guarantee up to22/08/2019 & warranty period was up to
  15/11/2019.· On classifying CD account as NPA & without having any sufficient margin money, Indian navy decided to invoke and encash the Bank Guarantee and sought payment.· Appellant on 29/08/2019 transferred the sum to the Indian Navy Account.· Also, there was no margin money provided by CD to the Appellant Bank & was secured by way of securities.· On the expiry of the warranty period, the CD vide letter dated 27/11/2019 and also the Appellant Bank vide letter dated 19/12/2019 requested the Government for refund of the Bank Guarantee as there were no claims filed during this period.· CIRP initiated against CD u/s 7 on 15/01/2020.· The money was refunded by Indian Navy on 28/09/2020 into the Current Account of CD maintained with Appellant Bank.· The Appellant Bank vide email date 03/11/2020 informed that the amount has been adjusted by them towards dues originally claimed by them under Form-C dated 29/01/2020.· R. contends that such adjustment is in violation ofS. 14 of IBC.NCLAT to consider following points:

a) Whether the CD has any right with respect to money received from reversal of invocation of a

Performance Bank Guarantee (which had been invoked prior to the initiation of CIRP),
specifically when the margin money was also not deposited by the CD?

b) Can the said refund amount be construed as an asset belonging to the CD?

• As per S. 3(31) of IBC though it includes
  performance obligations, it excludes performance-based Guarantees.
• A simple interpretation would mean that the contractual principles of the guarantee are required to be respected even during the
  Moratorium period.
• NCLAT holds a view that liabilities under a Performance Bank Guarantee cannot be terminated by action of a third party.
• Further NCLAT opined that the amount refunded by the Indian Navy under the Performance Bank Guarantee is not an asset of the CD for the following reasons: –

1) S. 3(31) of the Code specifically excludes Performance Guarantee.

2) S. 14(3) of IBC substituted by the second Amendment Act 26 of 2018 with retrospective effect from 06.06.2018.

· 3) S. 14(3)(b) of the Code specifies that it does not apply to a surety in a Contract of Guarantee to a CD

• As per the records, the Bank Guarantee was invoked prior to CIRP but the money was transferred by Govt on 28/09/2020 and the revised claim was preferred by the Appellant on 29/10/2020. Effectively, the money which went out on 28/08/2019 from the Bank was returned on 28/09/2020.
• Hence, NCLAT concludes that reversal of the invocation by the Indian Navy cannot be said to be an asset of CD & allowed the Appeal setting aside IO of AA.

Performance Guarantee is
excluded from the definition of security interest of IBC.

• The Appeal is preferred by the FC against an IO whereby an Application u/s 7 of IBC was dismissed.
• The Appellant claimed towards: (a) Consideration for retirement of Appellant (Mohit Jitendra Mehta) as director (b) The Reimbursement of interest payable for vehicle loan and (c) the Reimbursement of some expenses as per the MOU dated 18/03/2017 and 27/11/2017.
• R. Company was incorporated by Appellant & Ravi Suthar (Director) under MOU signed on 18/03/2017.
• On retirement, Appellant was promised to pay certain amount by Mr. Ravi.
• A vehicle loan was taken in the name of Appellant for which he paid margin money and three installments but the car was used by R. Hence, the same has to be paid by R.
• NCLAT states that on perusal of MOU it can be concluded that the repayment of the amount invested by Appellant in R. will be by Director Mr. Ravi.
• Hence, Appellant is not a FC not the debt can be classified as financial debt. Appeal is dismissed.

Determination of Financial Creditor & Financial Debt as per IBC.

• The Appeal is filed assailing an IO passed by NCLT, Kochi Bench whereby AA dismissed the Application filed by Appellant (RP) for Ordering Liquidation of CD
• The Liquidation was filed by RP as Successful Resolution Applicant (RA) failed to implement the Plan.
• CIRP was initiated on 23/08/2020 & Resolution Plan was approved by AA on 10/03/2020.
• Successful RA vide email dated 23/10/2020
  seeked for withdrawal of the approved plan & refund of the amount already paid as part of Plan stating the reason of withdrawal as recent RBI rejection of UVARC Plan.
• The monitoring Committee of CD was with a view that once the Resolution Plan has been approved the same cannot be withdrawn.
• Hence, filed an Application for Liquidation in the month of Nov, 2020 and contended that AA ought to pass the same.
• The issue to be decided by NCLAT in the instant Appeal was whether the prayer of the Appellant with regard to liquidating the CD ought to have considered or not?
• NCLT cannot either Order Liquidation or to direct the refund of the EMD, as the Tribunal has become Functus Officio after approval of the Resolution Plan with the consent of both the parties.
• The fact is that the 330 days have been completed and the Respondent did not implement the plan.
• NCLAT concludes that 330 days have expired and upon non-implementation of the plan by the Resolution Applicant, the AA ought to have passed the Order of Liquidation of the CD, Hence, IO is set aside.

Resolution Plan once approved by AA it cannot be withdrawn.

AA ought to pass Liquidation Order on
expiry of 330 days 7 upon
non-implementation of the
Resolution Plan.

• The Appeal is preferred by OC against an IO whereby AA dismissed the Application u/s 9 of IBC on the grounds of pre-existing dispute.
• The issue before NCLAT is whether there is any ‘Pre-Existing Dispute’ between the OC & CD
• Appellant (OC) & R. (CD) had entered into a contract of handling and transports of goods at Rail Warehousing Complex.
• Appellant raised invoices for handling of goods & the last payment was received on 16/02/2016 towards part payment of o/s operational debt.
• Demand Notice was issued on 01/02/2018.
• According to AA, there was pre-existing dispute as the Custody and Indemnity Bond excluded by the OC and also the letter dated 01/11/2012, whereby the OC was held liable for shortage of 335 MT of stock of boiled rice of FCI on account of storage.
• Appellant states that as per the arrangement between CD & FCI of storage of goods of FCI at RWC, Hatia it was precisely mentioned that CD was not responsible for the storage losses and transit losses and such liability would be of FCI only. Hence, OC cannot be liable at all.
• The letter dated 09/03/2012 clear that the goods of FCI were stored under the lock and key of FCI only.
• FCI & CD arrived at settlement of losses at 50:50 without taking the consent of OC
• CD never pleaded that Appellant did storage of goods nor raised any aspect for transit of losses.
• NCLAT states that as per the Agreement the losses of CD due to negligence and own workman like performance is the liability of service provider, it does not specify any activity related to storage of goods.
• A series of communication between Nov, 2012-Jan, 2013 depicts that there was an ongoing dispute regarding shortage of 335MT of boiled rice.
• Also, a joint meeting of CD, FCI & OC was held.
• NCLAT holds that non-reply of CD to demand notice does not preclude CD from existence of dispute also there is sufficient material to show pre-existence of dispute.
• Hence, Appeal is dismissed & confirming the IO as legit.

• The Appeal is filed by Suspended Director of CD against an IO dated 01/03/2021 passed by NCLT, Chandigarh Bench whereby a Liquidation Order against CD was allowed.
• Appellant contends the IO to be in negation of the principles of natural justice and the same is legally untenable.
• An Application u/s 9 of IBC for initiating CIRP against CD was admitted on 02/02/2018.
• Resolution plan was submitted by a prospective Resolution Applicant – Maritime Trade
  Corporation (MTC) on 04/10/2018 together with EMD of INR 10 crores. & a revised plan was submitted on 19/10/2018, 26/10/2018,
  28/10/2018.
• MTC was informed by RP vide email dated 29/10/2018 that CoC did not found the revised plan feasible & further due to lack of time left in the process repetition cannot be done.
• On 01/08/2018, 180 days of CIRP expired & as the extension of 90 days was granted, the period of 270 days expired on 30/10/2018.
• As per the final report submitted by RP on 06/11/2018 no Resolution Plan was approved.
• However, Appellant on being aggrieved filed CA No.603/2018 before AA & the same was allowed by passing Order dated 31/10/2019 whereby RP was directed to place the Revised Resolution Plan for consideration before CoC.
• CoC conducted its meeting on 15/11/2019
  whereby Resolution Plan was not passed with majority vote & the voting of SBI (vote share of 53.87%) deferred due to their internal pending approvals. Nor any resolution for Liquidation was passed.
• MTC acknowledged the rejection on 19/11/2019 of its Resolution Plan by CoC and had prayed for the refund of EMD.
• Subsequently, on discussion with MTC, SBI
  approved the Resolution Plan on 07/02/2020.
• MTC withdrew its Plan by email dated
  19/03/2020 to RP.
• As after an extension of additional 75 days to complete CIRP it came to an end on 15/11/2019.
• RP having no other option projected an IA praying for passing an Order of Liquidation in the matter of CD
• Appellant contended the withdrawal to be
  violation of IBC as the approved plan cannot be withdrawn.
• Also, Appellant projects that CD’s Liquidation was rejected by CoC with requisite majority.
• NCLAT observed that AA had not extended CIRP period when MTC on 19/03/2020 withdrew its interest for pursuing the Resolution Plan, the CoC becoming Functuous Officio.
• NCLAT concludes that there is no approved plan of CoC & IO is free from legal errors.

Resolution Plan not approved by CoC does not have binding effect on Resolution
Applicant

• The Appeal is filed by the OC being aggrieved with the IO passed by NCLT, Mumbai Bench whereby an Application filed by Appellant u/s 9 of IBC was considered to be not maintainable & got dismissed on the ground of pre-existing dispute & time barred debts.· The Appellant who had valid Restaurant, Bar, Bakery and Eating House licenses for a premise located at Bandra entered into a Business Conduction Agreement (BCA) with CD on 29/04/2010 (valid for 5 years) further extended for another 2 years, expiring on 30/09/2017.
• The monthly Business Conducting Fee (BCF) had
  increased from 10% to 11%
• Appellant expressed to not extend the agreement
  further once its expired.
• Subsequently suit was filed before the Court of Small Causes Bandra, claiming tenancy right in the business premises by R2 & R3. However, the Court confirmed by passing an Order that R. was running business under BCA.
• Another suit was filed by three individuals of the Pereira family i.e. Mr. Craig, Mrs. Leonys & Mr. Anslem u/s 6 of the Specific Relief Act, 1963 seeking possession of the Business Premises, the Hon’ble Bombay High Court granted Status Quo.
• After expiration of BCA., CD vacated the
  business premises however, the BCF & utility bills for Aug & Sept were unpaid. Further, Municipal Taxes from June, 2010 to Sept, 2017 was unpaid too.
• Appellant via letters dated 08/11/2017 & 24/11/2017 asked to clear an O/S amt of Rs. 35,52,022(inclusive of Rs. 14,62,205 for Municipal Taxes) but no response was received.
• Appellant issued demand notice to which R2 & R3 denied to pay any o/s amt due to the pre­existence of disputes before the Court of Small Causes Bandra & Hon’ble Bombay High Court.
• Appellant filed an Application u/s 9 of IBC on 12/03/2018.
• NCLAT upheld the view of AA stated that there is
  pre-existing dispute between the parties & all the claims prior to 12/03/2015 are time barred.
• Hence, the Appeal is dismissed.

Pre-existing dispute