NCLAT JUDGEMENT SUMMARY FOR THE MONTH OF MARCH’ 2021 ON IBC, 2016

It gives us immense pleasure to share our 1st Edition of NCLAT Judgement Summary for the month of March’ 2021 covering summary/ gist of finding of the Hon’ble NCLAT. The Judgement summary prepared by us is for the purpose of understanding in short about the Judgements passed by the Hon’ble NCLAT.

Our objective to publish the present Article is to update the Professionals about latest Judgements passed by Hon’ble NCLAT and to enable them to understand the rulings contained therein.

Our Editorial Board comprises of the following:

1. Dr. S K Jain, Practising Company Secretary, who is one of the senior most Practicing Company Secretary having a specialized practice in Companies Act, Insolvency & Bankruptcy Code, 2016 and Securities Law. Dr. S K Jain is the originator of the idea to prepare the present Editorial for the sake of updating the Professionals and making it convenient for the purpose of study and reference.

2. Mr. Yahya Batatawala, Advocate who is a Practising Advocate having a specialized practice in Companies Act, Insolvency & Bankruptcy Code, 2016 and Securities Law. Mr. Yahya Batatawala is associated with Dr. S K Jain and under guidance and support has support of Dr S K Jain has prepared the Editorial.

3. Mr. Urmi Desai, Law student, who is a hardworking and dedicated person who has rendered help and support in preparing the present Editorial.

Your candid feedback is valuable. Appreciation will encourage us and criticism will help us to improve!

Feedback can be sent at: [email protected]

with Warm Regards,

Dr. S K Jain, Practicing Company Secretary (M.Com, FCS, LLB, Ph.D)
Adv. Yahya Batatawala (
B.Com, LLB)

Dated: 15/04/2021

ABBREVIATIONS

AA- Adjudicating Authority

CD- Corporate Debtor

CIRP- Corporate Insolvency Resolution Process

DRT- Debt Recovery Tribunal

FC- Financial Creditor

IBC- Insolvency & Bankruptcy Code, 2016

IRP- Interim Resolution Professional

IO- Impugned Order

Ld.- Learned

NCLT- National Company Law Tribunal

NCLAT- National Company Law Appellate Tribunal

OC- Operational Creditor

OTS- One Time Settlement

RP- Resolution Professional

R- Respondent

u/s- under Section

S.- Section

NCLAT JUDGEMENT SUMMARY FOR THE MONTH OF MARCH’ 2021 ON IBC, 2016

 

Sr No Date Citation Summary Finding
1. 01/03/2021 Manoharlal Mehta & Ors VS Anil Vrijdas
Rajkotia Resolution Professional of KK Welding Ltd(135/2021)
  • Appeal was filed by on the ground that the opportunity of hearing was not provided by NCLT, Mumbai Bench while sending the CD into liquidation u/s 33 of the IBC, 2016.
  • During CIRP the COC didn’t receive any EOI or any Resolution Plan till the date of their meeting held on 03/09/2020.
  • Sending CD into liquidation by COC is not accountable under judicial review. Also COC, from the date of its constitution, is authorized to liquidate the CD any time before the confirmation on Resolution Plan is received from AA.
  • Therefore, Appeal was dismissed.
Breach of Rules of Natural Justice.
2. 01/03/2021 Oasis Suppliers Pvt Ltd VS Amarpal Interim
Resolution Professional Three C Shelter Pvt Ltd. (163/2021)
  • Appeal is filed against IRP as verification of claim is still pending.
  • Due to non-availability of relevant account statement there is delay in verification.
  • Appeal is disposed off by permitting certain period of time to IRP for filing its report on verification of claims which will enable the AA to pass timely Order.
Claim verification is pending.
3. 02-03-2021 India Resurgence
ARC Pvt Ltd VS
Amit Metaliks Ltd& Anr (1061/2020)
  • Appeal is filed by dissenting Secured Financial Creditor and a COC Member primarily on the ground that the approved Resolution Plan cannot be sustained as it failed to consider the valuation & quality of the security held by Secured Financial Creditor.
  • Appellant further submitted that Section 30(4) of IBC was amended because erstwhile provisions failed to consider the value of the security interest of a secured creditor and Order of priority among creditors which was ensured to be effected by amending the same.
  • R1 has submitted that the interpretation of Section 30(4) of IBC dealt in relevant case law of Supreme Court that COC at its discretion can take into account different classes of creditors u/s 53 & enjoys flexibility to take into account value of security interest & prioritizing distribution scheme of a Creditor while approving or rejecting a Resolution Plan. It is a guideline and not compulsion. Therefore, cannot be the subject of judicial review in Appeal within the parameters of Section 61(3) of IBC unless creditors belonging to a class being similarly situated are not given a fair and equitable treatment.
  • Hence, Appeal was dismissed as no merit was found as applicability of amended Section
    30(4) of IBC is entirely discretionary and not imperative.
Principle of equality cannot be stretched to treating unequal’s equally.
4. 02-03-2021 Gulabchand Jain VS Ramchandra D Choudhary Resolution Professional of Vijay Timber Industries Pvt Ltd  (142/2021)
  • Appeal was filed against the Order of NCLT regarding liquidating the CD on recommendation of PNB, sole member of COC.
  • The Appeal was dismissed by NCLAT advocating that COC is empowered to vacillate its decision for liquidating the CD any time before receiving the confirmation by AA on the Resolution Plan paced.
Breach of Rules of Natural Justice.
5. 02-03-2021 Vijay Sitaram Dandnaik VS Punjab National Bank & Ors. (90/2020)
  • Aggrieved by the Impugned Order dated 06.11.2020, passed by NCLT, Mumbai Bench, admitting the Section 7 Application filed by PNB, FC, Jailxami Sugar Products (Nitali) Private Limited, CD preferred this Appeal on the ground of Limitation.
  • Contention of the Appellant was that the Petition was filed after six years i.e. in the year 2019 from the date when the NPA was declared i.e. 31/03/2013.

Findings of NCLAT

  • In the instant case the date of default (NPA) is 31.03.2013 and the Application u/s 7 was filed on 10.10.2019
  • The contention of the Bank was that there was another ‘Balance and Security Confirmation Letter’ dated 03.07.2014, which is vehemently opposed by the Appellant on the ground that it has not been filed before the AA, which would give a fresh lease of life to the debt, is unsustainable as three years has lapsed for computing the limitation as the date of filing of the Application is 10.10.2019.
  • Keeping in view the ratio laid down by the Hon’ble Supreme Court in the aforenoted catena of Judgements, we are of the considered view that this Application u/s 7 is barred by limitation as it is filed beyond three years of the date of NPA. Further, as we observe that there is nothing on record to suggest that the Appellant has acknowledged the debt ‘within three years’ and has agreed to pay the debt.
  • For all the aforenoted reasons this Appeal is allowed and the Impugned Order is set aside.
Limitation
6. 02-03-2021 Committee of Creditors of EMCO Ltd. VS Mary Mody & Ors.  (307/2020)
  • Appeal was filed by COC against the Impugned Order passed by NCLT, Mumbai Bench directing the COC to provide interim funds to the Resolution Professional to run during the CIRP period & to provide funds to meet the expenditure already incurred.
  • COC contended on the grounds that directions of NCLT was passed without hearing COC and is contradicting Section 5(13) of IBC. Further mandate of Section 25(2)(c) read with Section 28(3) of IBC was not fulfilled by RP to raise interim finance therefore, COC didn’t approve the same and decision is non-justiciable.
  • R1 claimed dues of employees to be cleared as their services were not terminated during the period of CIRP, submitted further that CD was a going concern as RP/RP’s team visited Plant thrice in Oct, 2019.
  • R2 contended that CD was not a going concern; COC was approached by RP many times to seek funds for starting the production.

NCLAT is attentive on foremost points i.e. whether CD “a going concerns” & directing COC to provide interim funds to RP for CIRP & expenses incurred upto Dec, 2019 falls within the purview of NCLT.

  • NCLAT took the view that CD is not “a going concern” as only Plant visits by RP’s cannot be construed to be of any documentary evidence.
  • NCLAT observed that as per affidavit by RP confirming that CD is not a going concern and is non-operational NCLT ought to have taken this aspect into consideration and heard the CoC before issuing the directions.
  • CoC approved salaries of only certain critical employees to ensure smooth CIRP process towards the employees who were required to support the RP in discharging his duties.
  • Any salary dues prior to the commencement of CIRP process will be considered by the Resolution Applicant, whose Resolution Plan, if any, shall be approved by the CoC Members & claims related to pre-CIRP cannot be raised.
  • Appellant counsel referring the judgement of Tribunal held that ‘the Provident Fund, the Pension Fund and the Gratuity Fund, do not come within the purview of ‘liquidation Estate’ for the purpose of distribution of assets under Section 53 of the Code.
  • RP can raise Interim funds only subject to approval of the CoC by a vote of 66 % under Section 28 & if CoC has by a majority vote rejected to raise, decision is non-justiciable. Therefore, NCLAT holds that the direction given by NCLT are contrary to the provisions of IBC. Hence, Appeal is allowed & Impugned Order is set aside.
Interim Finance is subject to approval by COC as per Section 28 & decision taken by COC with majority vote share is non-
justiciable.Validating the reason of dissenting  financial creditors  does not fall under jurisdiction purview.
7. 02-03-2021 Vidharbha Industries Power Ltd VS Axis Bank Ltd  (117/2021)
  • Appeal is filed to seek stay Order on admission or rejection of Application for initiating CIRP.
  • Appellant being a power generating Company claims that there is pending civil litigation before Appellate Tribunal for Electricity (APTEL) forum against Maharashtra Electricity Regulatory Commission (MERC) regarding recovery of fuel costs including carrying costs aggregating to Rs.2100 crores. On implementing the APTEL judgment it will follow clearance of dues by MERC which would aid in settling the claims of Respondent of Rs 553 crores. Since, prima facie there is a clear intention of Appellant to clear the dues of respondent from the pending recovery, Appellant contends that the admission and continuation of Section 7 proceedings will be detrimental to the interests of all stake holders including Respondent.
  • Respondent contends that as per Section 7(4) of I&B Code within fourteen days of the receipt of the Application the AA shall admit the Application subject to the completion of Application as per Section 7(2) of I&B Code. However, in the said matter proceedings still remains pending beyond fourteen days.
  • Respondent further submits that causes like pending outcome of the proceedings before any other Forum & liquidity issues should not impede admissibility or rejection of Application u/s 7(4) & (5) of I&B Code.
  • Respondent brings to the notice of authority that since Appellant did neither dispute the existence of debt owed to the Respondent Bank nor did it raise any issue in regard to the event of default as alleged, the debt and default are not disputed.
  • Its therefore, clear that debt and default are not disputed. The financial woes of the Appellant and the liquidity problems faced by it, whether forced upon it or of its own making, have no bearing on commencement of insolvency Resolution and cannot be permitted to be a stumbling block in triggering of CIRP at the instance of Financial Creditor. The commencement of CIRP proceedings has already been delayed by one year much to the chagrin of Respondent (Financial Creditor) who has been virtually compelled to be a spectator helplessly watching the assets of Corporate Debtor getting depleted in value
  • The Tribunal dismissed the Appeal by maintaining that the flow of legal process cannot be
    permitted to be thwarted on considerations which are anterior to the mandate of Section 7(4) & (5) of I&B Code.
No pre-existing condition can bring stay on initiation of CIRP u/s 7 if it is in compliance with
Section 7(4) & (5) of I&B Code.
8. 02-03-2021 Subhash Agrawal VS AU Small
Finance Bank Ltd & Anr. (271/2020)
  • Appeal was filed on the grounds stating that the Application admitted by AA is in violation of Section 7 of IBC due to inadequate statement of accounts also the agreement submitted as evidence is inappropriately stamped.
  • AA has observed that Application is filed by an authorized official within the law of limitation, confirming the existence of debt, debt due and defaulted by CD. Also duly executed documents are submitted confirming creation of ROC charge for Rs 4 crore in this regard.
  • Appellant argues on the date of hearing that the default amount is disputed since it does not reflect all the amounts which the bank has already recovered by way of selling the mortgaged property and failed to take into account the payments already made. Further interest charged is not in line with the agreement executed.
  • Respondent submits that as long as default amount exceeds Rs. 1 lakh Application needs to be admitted referring judgements passed by the Hon’ble Supreme Court taking the same view.
  • Tribunal on failing to find any valid submissions dismissed the Appeal taking the view that CD is entitled to point out that a default has not occurred and is not liable to pay any amount in law or in fact.
Admissibility of Application cannot be rejected on the
grounds of disputed default amount as
long as claim due is exceeding Rs. 1 Lakhs.
9. 03-03-2021 Tarun  International Ltd. VS Vikram Bajaj (RP for Anil Special Steel  Industries Ltd) & Ors. (1194/2019)
  • Impugned Order dated 01.10.2019 by NCLT, Jaipur Bench directed Tarun International Ltd, Appellant (Auction purchaser) to bear all the liabilities attached with the acquired asset of Anil Special Steel Industries Limited-CD, (ASSIL) via auction by FC. Being aggrieved, Appellant assailed the Impugned Order by an instant Appeal.
  • Allahabad Bank, FC e-auctioned on 20.12.2017 one of the asset of CD under SARFAESI with a stipulation ‘as is where is basis, as is what is basis, whatever there is basis’ which implied that it shall also acquire all the liabilities thereon, on which it received a bid on 15.12.2017 from Appellant alongwith earnest money deposit (EMD for participation.
  • On receipt of EMD when FC intimated about demand letters for pending dues which are yet to be crystallized & sale certificate will be issued after passing of necessary Orders, Appellant stated all the conditions imposed post acceptance of EMD as illegal & asked either to cancel the entire bid process and refund security or let the bid process be carried to its logical conclusion, the Appellant being ready to deposit the balance amount of 25% of the bid amount minus Rs.2.74 Crores when the Bank would be able to issue the sale certificate.
  • Transaction of sale was completed before commencement of CIRP i.e. on 05.03.2018, vide Registered Sale Certificate (dated 09.02.2018) stating ‘free from all encumbrances’ under the SARFAESI Act, 2002 along with certificate from officer of FC stating the possession of the property has been handed over to the Appellant free from all encumbrances.
  • Dispute mentioned in Appeal is whether liabilities attached with the acquired asset prior to CIRP pertains to CD or the Appellant.
  • Appellant laid emphasis on the fact that the AA had no jurisdiction as sale transaction
    completed prior to initiation of CIRP.

Issue raised whether the Sale of only Part of the Assets of the Corporate Debtor under the SARFAESI Act can be considered the Sale of a Company (or Part thereof) as a going concern to make the purchaser liable?

Members of NCLAT has recorded separate findings in this matter, namely:

Findings by Chairperson Justice B.L. Bhatt

  • Considered opinion that the Appellant-auction purchaser had accepted the acquisition of an
    asset with express stipulation in auction notice & relevant docs connected with sale proceedings under the Ac, 2002 it cannot unilaterally back out of such liabilities. Mentioning that it was free from encumbrances on the basis of registered sale certificate would be inconsequential. Hence Impugned Order does not suffer from any legal infirmity and factual frailty. Appeal stands dismissed.

Findings by member V.P. Singh(Technical)

  • Section 18(1)(f)(vi) have made the task of the IRP in taking control and custody of an asset
    over which the CD has ownership rights, subject to the determination of ownership by a Court. In the instant case though IRP was authorized to take over assets of CD but it cannot take over which was already sold & no more belongs to CD.
  • As auction purchaser was a third party which had no concern with the CIRP Debtor’s liability can’t be fastened on the third party and that too by exercising powers as an AA u/s 60(5) of the IBC, 2016.
  • NCLT had no authority to fasten the CDs liability on the auction purchaser as they acquired only part of the asset of the CD and not the Company itself. Also where the Sale is made under the SARFAESI Act, then after completing the sale process and issuance of the Sale Certificate, the AA had no authority to pass an Order U/S 60(5) of the Code.
  • He held that the AA under the IBC, 2016 had no jurisdiction to determine a bona fide auction purchaser’s liability under the SARFAESI Act’s provisions; the same has been purchased before the commencement of CIRP of the CD.
  • Further exercising its power u/s 60(5) of the Code, the AA has exceeded its jurisdiction in determining a third party’s liabilities, which had no role in the CDs Insolvency Resolution Process.
  • It was erroneously determined by NCLT the Sale of assets as a Sale of Company as a going concern.
  • Appeal deserves to be allowed by setting aside the Impugned Order. However, the majority view authored by separate Judgement brother Hon’ble Acting Chairperson Justice B.L. Bhatt shall prevail.
Whether NCLT can direct the auctioneer to bear the liabilities attached to property

sold under

10. 03-03-2021 Durga Prasad  Agarwal & Anr. VS Limtex Tea & Industries Ltd & Anr.  (1496/2019)
  • Aggrieved by the Impugned Order dated 21.11.2019 by NCLT, Kolkata Bench on admissibility of Application u/s 7 of IBC by Limtex Tea & Industries Limited (FC), CD filed an Appeal on the grounds of limitation & reliability on the documentary evidence acknowledging the debt is questioned.
  • FC claims that loan of 25 lakhs was given to CD & same was acknowledged by both the parties vide letter dated 06/11/2011 & on demand CD repaid the debt amount via cheque dated 27/04/2015 which was bounced on 22/06/2015 marked ‘insufficient funds’
  • Demand Notice & request letter dated 29/06/2015 & 23/02/2018 respectively was issued to CD demanding the repayment but failed to get any reply.
  • Appellant contends that Application u/s 7 of IBC barred by limitation & denies issue of cheque dated 27/04/2015 alleges signature is forged and requests NCLT for verification by CID, West Bengal of original cheque.

Question for consideration

i) Whether the Application u/s 7 of the IBC filed by the R1 is barred by limitation?

ii) Whether the cheque relied upon to establish acknowledgement of debt was genuine?

  • Findings of NCLAT are that Application admitted u/s 7 of IBC is dismissed as it breaches limitation act; default occurred on 01/04/2014 & Application was filed on 17/04/2018.
  • AA failed to consider the legitimacy of cheque dated 27/04/2015. Thus, the Impugned Order is set aside & Appeal is allowed.
Limitation & whether NCLT to ascertain
validity of debt ack. document.
11. 04.03.2021 Rajesh Goyal. VS Babita Gupta & Ors. (1056/2019)
  • Appeal was filed by Rajesh Goyal, (Promoter and FC) for exclusion of the period from the date of judgment till further directions as a zero period & to seek extension of timelines stipulated in judgment dated 05.02.2020 passed by NCLAT due to outbreak of COVID-19.
  • NCLAT in the mentioned case embarked upon an experiment to introduce the concept of “Reverse CIRP” by making home buyers as stake holders & looking beyond the third party Resolution Plan approval. IRP was directed to collate the claims & based on the voting share of Allottees it permits the investment by promoter as an outsider FC & mandate to cooperate with IRP for project completion.
  • In the instant case holding the concept of Reverse CIRP & invoking Rule 11 of the NCLAT Rules, Tribunal had directed promoter to cooperate with IRP, to disburse amount as FC & timelines were set. Explicitly stated that during CIRP, the IRP can also sell the unsold flats by way of Tripartite Agreement: Purchaser-IRP/RP- Promoter. On project completion IRP will apply for disposal of Section 7 of IBC. Further in case of failure by promoter to cooperate & to invest NCLT will complete the CIRP.
  • In the interest of all stake holders & considering the hardships faced due to pandemic members allowed to extend the timelines envisaged in the Judgment dated 05.02.2020 without altering, substituting or modifying its structural terms. This should not be viewed to condone the default but only to promote the ends of justice.
Embarked Reverse CIRP
12. 04-03-2021 Rajendra Kumar
Kundanmal Jain
VS Vijail A. Jain & Anr. (366/2020)
  • Appeal is filed against an Impugned Order passed by NCLT, Mumbai admitting the Application dated 03.06.2019 u/s 9 of IBC by OC on the grounds of limitation.
  • The Hon’ble Supreme Court has held in the referred case that in case of post-dated cheque, a fresh period of limitation began from the date of cheque. Further S. 20 of Limitation Act inter alia lays down that where payment on account of debt is made before the expiration of the prescribed period by the person liable to pay the debt, a fresh period of limitation shall be computed from the time when the payment was made. Where therefore the payment is by cheque and is conditional, the mere delivery of the cheque on a particular date does not mean that the payment was made on that date unless the cheque was accepted as unconditional payment. Where the cheque is not accepted as an unconditional payment, it can only be treated as a conditional payment. In such a case the payment for purposes of s. 20 would be the date on which the cheque would be actually payable at the earliest, assuming that it will be honoured.
  • In the instant case goods delivered by OC to the Appellant between 2014-15 & cheque dated 12.01.2016 issued for part payment was dishonored for the reason “Payment stopped by drawer”. Demand Notice dated 16.10.2018 issued didn’t receive any reply. Cheque which was issued by the Appellant on 12.01.2016 was dishonored which is within the period of limitation though dispute pertains to 2014 & 2015. Hence Appeal being devoid of merit is dismissed.
Fresh period of limitation began in case  of          conditional payment instrument.
13. 05-03-2021 State Bank of India VS Vibha Agro Tech Ltd (636/2020)
  • Appellant filed the Appeal contending that AA failed to consider the fact of acknowledging the debt and default by the Respondent & rejected the Application filed u/s 7 of IBC seeking initiation of CIRP taking the grounds barred by limitation.
  • Taking the view from the referred Supreme Court judgement the date of NPA is the date of default which in the instant case is 30.04.2013 & the Application date is 12.09.2018 which is beyond three years as permitted by limitation.
  • Further submitted  that there was Acknowledgement of Indebtedness via Master Restructuring Agreement (MRA) dated 26.09.2013. However, CD exited from the MRA on 31.01.2015. Therefore, no reliance can be placed upon the ack on MRA. Even otherwise the MRA date is beyond three years.
  • Since there is no specific ack. in writing admitting the debt within the period of limitation the Appeal is dismissed as devoid of merits.
Limitation
14. 05-03-2021 Mazda Agencies VS Hemant Plastics & Chemicals Ltd (763/2020)
  • The Appeal is filed against an Impugned Order dated 07.07.2020 passed by NCLT, Ahmadabad Bench rejecting S. 9 Application on the grounds of limitation.

The issue to be dealt by NCLAT:

(a) Whether as per section 22(1) of the SICA the legal proceedings for recovery of Operational Debt were suspended, if yes?

(b) Whether as per section 22(5) of the SICA the Appellant is entitled to get exclusion in computing the period of limitation spent in SICA Proceedings?

  • CD ack. outstanding due of Rs. 1,48,11,572/- as on 31.12.2004. On failure on part of CD for further payment it was referred to BIFR & vide Order dated 17.07.2013. BIFR allowed the scheme for rehabilitation of the Respondent Company (CD). Appellant (OC) was permitted to proceed with pending Civil Suit by the Appellate Authority vide Order dated 17.09.2014 modifying BIFR Order. The same was challenged by Respondent in Gujarat High Court who remanded the Application to Appellate Authority. It was upheld by Appellate Authority that Appellant has the liberty to approach the BIFR praying for execution of decree, if any in case objects of the scheme have already been fulfilled and the Respondent Company stands revived even prior of the completion of the scheme. On repealing SICA w.e.f. 01.12.2016, Notice u/s 8 of IBC was served by OC to CD. Application u/s 9 filed on 24.11.2017.
  • NCLAT observed that during sanction of the rehabilitation scheme Appellant sought consent of the Board to approach appropriate Civil Court for adjudication of its dues. It means the Appellant was not part of the Scheme and he intends to approach Civil Court for recovery of operational debt. Hence, it cannot be said that the legal right of remedy of the Appellant against the Respondent was suspended as per section 22(1) of the SICA.
  • Addressing the second issue NCLAT held that since Appellant not being part of BIFR scheme as he had obtained consent of the Board to proceed with civil suit the remedy against Respondent (CD) is not suspended. Hence, to avail extension of limitation by virtue of exclusion of period of suspension is not valid.
  • The Appeal is dismissed.
Limitation
15 08-03-2021 Orator Marketing Pvt Ltd  VS Samtex Desinz Pvt Ltd (1064/2020)
  • Appeal filed against an Impugned Order passed by NCLT, Delhi Bench dated 23.10.2020 rejecting an Application filed u/s 7 of IBC holding that there was a mere grant of loan and it was not a financial debt.
  • In the instant case, the CD was unable to get any further loan from the market after having taken loan from M/s. Tata Capital Financial Services Ltd., M/s. Sameer Sales which was related party to the CD, extended interest free unsecured loan to the CD. Subsequently, M/s. Sameer Sales Pvt. Ltd. (the original lender) assigned the outstanding loan to the Appellant.
  • The narrow question involved is whether the transaction concerned can be treated as a transaction of Financial Debt as defined in S. 5(8) of IBC. If the money borrowed is not against payment of interest, under the definition of financial debt, the core requirement is to find whether there is “consideration for the time value of money”. It is advocated by Tribunal that the term “time value of money” has to be a consideration for the FC. How the CD will be using the money, cannot be stated to be the consideration for time value of money for the FC.
  • Further, the basic nature of the loan will not change merely because the original lender has extended simple debt to the sister concern which is now assigned to the Appellant will not change the nature of the transaction.
  • Hence, the transaction is not a transaction of financial debt and thus declined to admit the Application u/s 7 of IBC.
“time value of money” an important factor for      financial
16. 08-03-2021 State Bank of India  VS Animesh Mukhopadhyay, RP  of   Zenith
Finesee India Pvt Ltd (186/2021)
  • The question of law involved in this Appeal is whether for the debt due is it admissible for the Financial Creditor to file separate claims:-

In the CIRP of the Corporate Guarantor; and

In the CIRP of the Principal Borrower.

  • The Impugned Order is set aside stating that till payment is received in one CIRP, claim can be maintained in both CIRPs for same amount and representation in CoC in both CIRPs to the extent of amount due will be justified. Section 60 of IBC makes the two CIRPs maintainable even if different IRP/RP is there in the two CIRPs as it would be just a matter of co-ordination between the two IRPs/RPs.
  • Hence, Appeal is allowed.
As per S.60 simultaneously two CIRPs  is maintainable against Corporate Debtor & Principal Borrower.
17. 08-03-2021 Palm  Products Pvt Ltd VS TVL Narsimha Rao & Anr (809/2020) Appeal arises out of Impugned Order dated 12.08.2020 passed by the NCLT, Hyderabad

  • Bench in which Application of the Appellant was rejected which sought directions against
  • RP of CD seeking acceptance of claim and to declare Appellant FC accepting Assignment Deed and entry in CoC.
  • RP (R1) while admitting the claims of R2 (Assignor) under CIRP had treated as FC (Related Party).
  • On being held by AA to be Related Party (RP) u/s 29A of IBC. R2 kept the shares and transferred debt to the Appellant vide assignment deed dated 18.05.2020 registered on 15.07.2020 of Rs. 60.48 crores in the course of CIRP at the discounted price of Rs. 10 lakhs. Therefore, Appellant claims the status of ‘FC’ (non-related party) as only debts have been assigned along with underlying securities & not the shares.
  • RP submitted that in the matter “Fortune Pharma Pvt. Ltd.” decided by the NCLT, Mumbai Bench that rights of the assignee are no better than those of the assignor and that assignee steps into the shoes of assignor.
  • NCLAT recorded that there is no dispute with regard to the fact that Order of AA dated 20.11.2019 in which claim of R2 as not a Related Party was rejected. Therefore, as the said Order was not challenged & became final, NCLAT cannot go into those particulars. Therefore, it was declined to interfere & Appeal is dismissed.
Rights of the assignee are no better than those of the assignor and  that   assignee steps into the shoes of assignor.
18. 08-03-2021 Edelweiss  Asset Reconstruction Company Ltd. VS Gwalior Bypass Projects Ltd. ( 1186/2019)
  • Appeal is filed against Application rejected by AA which involved the issue that if CIRP has been initiated against the principal borrower, could the Appellant have filed claim in CIRP initiated against the Corporate Guarantor.
  • The Tribunal is of the view that simultaneously remedy is central to a contract of guarantee and where Principal Borrower and surety are undergoing CIRP, the Creditor should be able to file claims in CIRP of both of them. The IBC does not prevent this.

Therefore, the present Appeal is allowed & Impugned Order is quashed & set aside.

FC can proceed against the Principal borrower as well as Corporate Guarantor at  the same time,
either in CIRPs or file claims in both CIRPs.
19. 15-03-2021 Interups Inc VS Kuldeep  Kumar Bassi & Ors
Resolution Professional of Asian Colour Coated Ispat Ltd (1079/2020)
  • Appellant being an aggrieved party against an Impugned Order dated 26.10.2020 by NCLT, Delhi Bench regarding approval of the Resolution Plan with respect to the CD & seeking directions for consideration of its Resolution proposal.
  • In the instant case, EOI was issued on 14.12.2018 and the last date to submit was 08.03.2019. Resolution Plan of R3 got CoC approval on 28.06.2019 with 79.30% voting share & Application seeking RP approval filed on 10.07.2019. On 12.06.2020 Appellant had ask for EOI & filed an applicant on 09.07.2020 for directions to the RP and CoC to consider its proposal, albeit without any proposal at all, for RP to provide access to data room and other information, to enable it to present a Plan at such belated stage.
  • It is held that any person aggrieved by the Order of AA can prefer an Appeal before the Appellate Tribunal which comprises of stakeholders in the process of CIRP and Liquidation Process. Appellant was held as a stranger to the CIRP & cannot be termed as aggrieved party. Therefore, Appeal is held to be not maintainable.
  • Pendency of avoidance Applications does not vitiate the approved RP, its not a pre-requisite for approval of Resolution Plan.
  • Appeal dismissed. Pending Application, if any, stands disposed off.
Any person aggrieved, comprises of  stakeholders in the process of CIRP and Liquidation Process, by the Order of approved Resolution Plan can only file an Appeal.
20. 16-03-2021 Mr  Kuldeep Verma Resolution Professional M/s KS Oils Ltd VS State  Bank  of India  and Ors (98/2021)
  • The grievance of the Appellant – RP; is that as on 01.01.2021 despite lapse of 981 days from the date of filing of the Application seeking Order of liquidation of Corporate Debtor as no Resolution Plan has been approved by the CoC within the permitted time of CIRP u/s 12, instead the AA has dismissed the Interlocutory Application (‘IA’) as not maintainable and being infructuous.

Facts of the instant case:

  • SREI submitted a Resolution Plan on 09.04.2018 stands to be rejected on 13.04.2018 by a vote of 71.34% in CoC meeting. On conclusion of 270 days on 16.04.2018 without a Resolution Plan approved by CoC, the RP filed a liquidation Application. However, AA kept asking RP to consider different addendums submitted by SREI, before CoC between May, 2018 to August, 2019 and all were rejected by majority vote. Appellant Tribunal passed an Order dated 18.11.2019, arising from an Appeal filed by SBI (member of CoC), to allow CoC to consider the ‘revised Plan’, if any, filed or is to be filed within a week & in case of failure to receive any, the Adjudicating Authority will take up the Application under S. 33 of IBC & pass appropriate Order in accordance with law. Adjudicating authority failed to comply with the Order of NCLAT & almost 31 hearing were held.
  • In the meantime, Om Shri Shubh Labh Agritech Private Limited on 25.02.2021 seeks to infuse funds with a view to revive operations.
  • NCLAT rejected the intervene Application on the grounds that allowing a party to enter the fray after 3 years of issue of EOI is neither warranted by the Regulations nor by the Code.
  • Further as well established that AA nor the Appellate Authority is supposed to look into the commercial wisdom of CoC or to reverse the Commercial wisdom of CoC, AA may not have allowed repeated reference of Resolution Applicant for the consideration of CoC when CoC was repeatedly rejecting their variants of proposals.
  • Hence, the relief sought by Appellant was allowed by setting aside the Impugned Order
    dated 01.01.2021 and at the same time the Order for initiation for liquidation of the CD also allowed.
NCLT took 981 days to decide the IA for

Liquidation          which
was dismissed as not

maintainable      &
infructuous. Timeline u/s 12 of IBC has to adhered by NCLT as Time is the essence of the Code.

21. 16-03-2021 Dr Krishan Mohan Mendiratta VS State Bank of India & Anr (145/2021)
  • Appeal filed against the Impugned Order dated 13.01.2021 passed by NCLT, Delhi Bench on the ground that the AA failed to appreciate the fact that the COC did not consider the Resolution Plan of higher value submitted by Dr. Rajendar Singh viz. Rs. 32 Crores and approved the Resolution Plan of Successful Resolution Applicant having value of Rs. 30.10 Crores.
  • The finding of Tribunal is that since the Appellant himself was not in the fray and as a member of the suspended Board of Directors was ineligible to submit a Resolution Plan, he could not be permitted to espouse cause of Unsuccessful Resolution Applicant thereby trying to meddle with the affairs of the CIRP when the law forbids it to participate in such process.
  • The Appeal is non-maintainable and hence dismissed.
Person who is ineligible to submit a Resolution Plan &
participate in CIRP, cannot even espouse cause of
Unsuccessful Resolution Applicant.
22. 16-03-2021 Solenis Chemicals India
Pvt Ltd VS Arjun Pulp and Paper India Pvt Ltd (707/2020)
  • Appeal is filed against an Order passed by NCLT, Chennai Bench dated 05.05.2020 whereby Application u/s 9 of IBC has dismissed.
  • OC has supplied chemicals and other materials to Corporate Debtor. Various invoices raised as per the terms and conditions contained in the said invoices.

· The OC has claimed an amount of Rs. 63,54,412/- along with interest from CD. Notice of dispute is sent by CD on 01.08.2018 after that it was assured that the outstanding amount will be paid within a month but no outstanding debt was paid.

  • OC raised Demand Notice u/s 8 of the IBC on 05.09.2018 which was delivered on 15.09.2018 to which CD reverted vide Notice of Dispute dated 17.09.2018.
  • The Tribunal held that Letter dated 17.09.2018 by Respondent clearly shows that there is pre-existing dispute between the parties much prior to issuance of Demand Notice.

Representatives of Appellant had visited the CD’s office on 17.07.2018 and were informed by them that the Appellant is ready to resumption of further supply on 90 days L.C. but this fact has been concealed in the notice issuance of u/s 8 of the IBC.

  • No merit is found in the Appeal therefore dismissed.
Application for initiation of CIRP can be rejected on the grounds of pre-
existence of dispute among parties.
23. 16-03-2021 Gursharan Singh.  VS The State Trading Corporation of India Ltd. & Anr.  (853/2019)
  • OC filed an Application u/s 9 of IBC before NCLT, Delhi & Application was admitted on 08.05.2019. Appeal is filed for Condonation of Delay for preferring an Appeal against an Order admitting the said Application.
  • U/s 61 of IBC the Appeal has to be filed within 30 days and the delay which this Tribunal can condone is only of 15 days. In the instant case even if its considered the last day of the first week and treat that the letter(Order) dated 30.05.2019 was received on 07.06.2019 the Application for certified copy was filed only after consuming 30 days 08.07.2019. The certified copy was received on 15.07.2019. Another 28 days were consumed and the Appeal was filed only on 13.08.2019. This being so, the earlier consumed 30 days and subsequently consumed 28 days calculate to 58 days taken for filing of the Appeal.
  • The Application to condone the delay is rejected. The Appeal being time barred, the same is rejected.
Time to prefer an Appeal u/s 61 is the maximum time. No shelter can be taken for delayed receipt of CC of Order
24. 17-03-2021 BS Krishan VS  Stressed Assets Stabilization Fund SASF & Anr (521/2020)
  • Appeal is filed against the Order dated 25.01.2020 passed by NCLT, Special Bench, Chennai, whereby Application u/s 7 of IBC filed by FC against CD was admitted. The point of consideration is whether ‘Date of Default’ can be shift forward on the basis of the Order passed by the DRT-II.
  • Sketchy facts of the case: FC disbursed loan twice to CD of Rs 650 Lakhs & 400 Lakhs for the period 21.03.98- 08.12.99 & 16.06.2000- 28.09.2000 respectively. The CD defaulted in repayment of loan facilities and accordingly on 15.01.2002 the IDBI recalled the said loan facilities against the CD, thereby demanding payment.
  • On failure by CD to comply, FC on 06.02.2002 filed an O.A. No. 78 of 2002 before the DRT-I Chennai. CD ack. the debt periodically in the year 2008, 2014, 2016 & 2017.
  • Application u/s 7 of IBC filed on 23.01.2019 as loan was not repaid. During the pendency of the Application, DRT-II has allowed on 29.04.2019 in favour of the FC and subsequently, issued a Recovery Certificate dated 16.01.2020 in favour of the FC against the CD for a sum of Rs. 11,05,92,791 alongwith 12% simple interest p.a.
  • NCLAT held that the right to sue accrues when a default occurs. If the default has occurred over three years prior to date of filing of the Application u/s 7 of the IBC; the Application would be barred by the Limitation Act. The date of right to sue can be extended only when the debt is acknowledged by the CD within limitation of 3 years. In this case loan a/c was declared NPA before 2001 and thereafter, there is no Ack. of debt within limitation of three years and it is clear that the Judgment/decree passed by the DRT-II on 29.04.2019 cannot shift forward the date of default for the purpose of computing the period for filing an Application u/s 7 of IBC.
  • Hence, Order dated 25.01.2020 is set aside as barred by limitation and was not maintainable.
Limitation
25. 17-03-2021 Maldar Barrels Pvt Ltd VS
Pearson Drums & Barrels Pvt Ltd (872/2020)
  • The Appeal is preferred on the ground that the NCLT, Kolkata Bench has gone beyond the mandate of S. 9 of the IBC in passing the Impugned Order dated 13.02.2020.
  • Facts of the case: In a business transaction between both the Parties, CD failed to pay an amount of Rs.8,82,11,723/- to the OC which was due and payable. So Application u/s 9 of IBC is filed on 09.08.2017 by OC. AA admitted the Petition and initiated CIRP.
  • Thereafter settlement was accepted by both the parties and entered into on 11.01.2018 in which debt owned of Rs 8,82,11,723/- was fully and finally settled at a total amount of Rs.3.70 crores to be paid in 37 instalments on or before 21st day of every month for the next 37 months starting from January 2018.
  • Appellant claimed that timeline was the “essence of the contract”. On multiple defaults by CD between Jan, 2018- August, 2018, a Demand Notice dated 27.06.2019 was sent. Subsequently, the OC filed a fresh Application u/s 9 for CIRP against the CD for non- payment of total due of Rs.9,41,85,391/- in accordance with the terms of the Settlement. The same was dismissed by NCLT holding that it was not the forum where parties could seek implementation of the Settlement Agreement and that too after the Appellant had accepted a major portion of the amount due. Appellant has argued that in accordance with Clause 11 of the Settlement, the Appellant is at liberty to file new proceedings against the CD or to revive the aforesaid Application.
  • CD claims that once the Respondent continued to accept payments without retaining any rights under the terms of settlement, no right was reserved by the Appellant in that regard. In many cases the date of deposition of cheques were presented after 21st of the month in the bank the realization of the related amounts was also delayed. These delays were due to the Appellant and the CD can’t be held responsible.
  • NCLAT concludes that prima facie, time was not essence in the Settlement Agreement. we come to the unambiguous conclusion that the Appellant has not been able to make out a clear-cut case in his favor. The Settlement Agreement, as has been operated by both the parties, does not show that time was of essence in it. Moreover, the Corporate Debtor has paid the full and final settlement amount by January, 2021 to the OC. Therefore, the term of the Settlement Agreement that provides for reinstatement or fresh filing of the Application for initiating CIRP for the CD is not triggered.
  • Consequently, Appeal is dismissed.
Whether delay in payment of
instalments constituted default
under the terms of  the Settlement Agreement leading to triggering of the revival of the old Application or
filing of a fresh Application
under Section 9 of the IBC
26. 17-03-2021 Ram Ratan Kanoongo VS Veda Kumar Nimbagal & Ors (906/2020)
  • The Appeal is filed by RP of assailing the Order dated 04.08.2020 passed by NCLT, Hyderabad bench directing RP to make payment of the salary to the R1 (Ex-Director of CD) as per amount acknowledged by the RP, in accordance with the provision of IBC and Regulations thereof.

Issue: Whether the AA can issue the directions to erstwhile RP once the Resolution Plan under S.31 of the IBC, 2016 has been approved, and the RP has been discharged of his duties?

· Facts: R1 had file a claim with RP seeking the release of his claim towards payment of salary to the tune of Rs.13,50,000/-. RP evaluated the claim and partially admitted the claim to the tune of Rs. 5,40,000/-, based on the calculation of the salary dues up to the date of commencement of CIRP i.e. 18.09.2017. Aggrieved by it, R1 had preferred an Application before NCLT. Hon’ble NCLT vide Order dated 19.07.2018 upheld the decision of RP. R1 had never challenged the Order dated 19.07.2018 before Appellate Authority and hence, it attained finality.

  • RP contends that after the approval of the Resolution Plan, working as a member of the Monitoring Agency, he filed an Application against the Directors of the CD, including R1 on being aggrieved by non-cooperation in smooth implementation of the Resolution Plan by the Ex-Directors in approving and signing the financial statements for the FY 2014-15 to 2017- 18 to handover the updated financial statement to the successful Resolution Applicant. The AA vide Order dated 19.12.2018, while disposing of the Applications, directed R1 and other Ex-Directors to cooperate with RP and further sign and approve the CD’s financial statements for FY 2014 -15 to 2017-18.
  • After that, R1 filed an Application for modification of an Order dated 19.12.2018 sought relief to release the payment of his salary dues to the tune of Rs. 20,38,000/- despite completely aware of the Order dated 19.07.2018 that his total claim about outstanding salary dues is finally settled.
  • NCLAT held that the R1 had earlier raised a claim of salary dues, which was finally settled by the Order dated 19.07.2018 Admitted amount of salary dues has been dealt with AA in terms of the approved Resolution Plan. Any claim for the CIRP period could have been raised before approval of a Resolution Plan. After the Resolution Plan’s approval and implementation, no direction can be issued to the erstwhile RP on account of any belated and settled claim. Successful Resolution Applicant cannot be burdened with the claim/dues of the CD.
  • Hence Appeal was allowed and the Impugned Order to be set aside.
No directions can be issued to RP post Resolution Plan’s approval and implementation.
27. 17-03-2021 Next Education India Pvt Ltd. VS K12 Techno
Services Pvt ltd.  (98/2019)
  • NCLT, Bengaluru rejected the Application u/s 9 of IBC on the grounds of:

(i) Claims being time barred &

(ii) pre-existing dispute.

  • Aggrieved by the Impugned Order, the present Appeal is preferred. The two main points for consideration in this Appeal are whether the AA was justified in holding that;

i) the Section 9 Application was barred by limitation

ii)that there was a ‘Pre-Existing Dispute’ prior to the issuance of the Demand Notice under Section 8(1) of the Code.

  • Addressing the first issue about Application barred by limitation. Master License Agreement dated 03.01.2011 was executed between CD & OC. During the transactions, 187 invoices were raised from 12.03.2011-30.06.2017 for Rs. 2,39,85,521.35/-. Letter dated 11.09.2015 sent by CD pertaining to an audit confirmation wherein there was an express admission for an amount of Rs. 2,46,61,404 which OC seeks to establish ‘Acknowledgement of debt’. An Addendum Agreement dated 01.07.2016 was entered into between the parties wherein an Rs. 2.69/- Crores was once again confirmed as payable by the CD. On delay in payment a Demand Notice dated 08.08.2017 issued to CD crystallizing the amount at Rs. 2,39,85,521.35 /-, which is unpaid from 2011 by cumulative invoices.
  • Contention by Appellant that the earliest invoice in the three years preceding 26.10.2017 is dated 02.04.2015 and the latest invoice is dated 30.06.2017 hence, the question of the Application being barred by limitation does not arise, cannot be sustained. Right to Application as per Article 137 of the Limitation Act, 1963 first accrued within three years of 12.03.2011 (i.e. date of default), which limitation ends on 12.03.2014, correspondence by CD on 12.09.2015 is beyond three years of the date of default. Hence, these documents do not extend the period of limitation. Therefore, Application u/s 9 is barred by limitation.
  • Addressing the second issue that whether there was any ‘Pre-Existing Dispute’ prior to the issuance of the Demand Notice. CD claims that an amount of Rs. 25/- Lakhs was failed to be spent on advertising by OC. The same is specifically denied by OC. E-mail correspondence between 2012-2015 relate to regular day-to-day issues nowhere in this correspondence any issue with respect to training or payment of Rs. 25/- Lakhs or any other breach of the clauses of the Master Licence Agreement has been raised. The Demand Notice under Section 8(1) dated 08.08.2017 and the Reply which was filed for the very first time raises these issues. NCLAT considered view that there is no ‘Pre-Existing Dispute’ between the parties.
  • Appeal is dismissed.
Limitation & Pre- existing dispute
28. 17-03-2021 Albanna Engineering LLC. VS Sanghvi Movers Ltd. & Ors. ( 481/2020)
  • Appeal has been filed against an Order dated 20.04.2020 passed by NCLT, Kochi Bench directing to invoke both the Bank Guarantees immediately provided by the parent Company of CD, i.e., Albanna Engineering LLC and to keep the proceeds in an interest-bearing fixed deposit with itself in the name and style of “Bharat Petroleum Corporation Limited-Account Albanna Engineering” until further Orders.
  • Findings of NCLAT are that the Appellant – M/s Albanna Engineering LLC has not been made a party in the Impugned Order passed by NCLT, Kochi Bench so considered view that the Impugned Order cannot be sustained in the eye of law and natural justice has been violated. Therefore, Order of NCLT is hereby set aside.
Rule of Natural Justice.
29.

 

18-03-2021

 

Gyanchand Mutha VS Aditya Birla Money Ltd. & Anr. (346/2020)
  • Appeal filed by shareholder of CD assailing the Order passed by NCLT, Jaipur for admitting an Application u/s 9 of IBC against CD.
  • The CD (R2) availed services of OC (R1) by opening a trading account and did trading from Sept, 2017-Nov, 2017. Notice dated 21.12.2017 was sent by OC claiming outstanding amount of with interest. On failure to receive any payment notice u/s 8 was issued dated 15.03.2018.
  • Since CD claims to be NBFC and is therefore, protected from Application of provisions of IBC as it does not falls within the purview of S.3(7) of IBC. AA has at the time of hearing the Application, directed the CD to show that it was still functioning as NBFC. Hence, CD via certificate issued by RBI tried to satisfy the AA that it was working as NBFC and that it was protected as the Company was still functioning as NBFC and had even filed its Returns with the Reserve Bank of India till 06.11.2019.
  • The contention of FC of being deceived by CD as it with malafied intention ticked on “public Limited Co’ instead of “financial institution” on the KYC form is held to be inappropriate and for such actions CIRP cannot be invoked.
  • Further, considering the position of law, it appears to NCLAT that the AA could not have initiated CIRP when the CD did not fall in the concerned definition of ‘Corporate Person’ under IBC.
  • Therefore, the Appeal is allowed & the Impugned Order is quashed & set aside. The Application u/s 9 of IBC filed by OC is dismissed.
CIRP cannot be  initiated against NBFC.
30. 22-03-2021 Abhinandan Jain VS Tanaya Enterprises Pvt Ltd (1017/2020)
  • The present Appeal is preferred against the Impugned Order dated 31.08.2020 passed by the NCLT, Mumbai Bench, admitting the Application filed by the Respondent, OC u/s 9 of IBC.
  • The main submissions of the Appellant Counsel are three fold:-

(a)Notice mandated under Section 8 of the IBC, 2016 was never served upon them.

(b)That the Application arises out of ‘time barred claims’.

(c)That there is a “Pre-Existing Dispute” prior to the filing of the Application u/s 9 of the IBC.

  • Addressing the first issue, NCLAT observed from the record that the Demand Notice was served by Registered Post to the Registered Address of the CD as per MCA records which is as per Rule 5 of the IBC (Application to Adjudicating Authority) Rules, 2016. Further contention made by Appellant that the ack. card is that of ‘Brahmecha Modi, Charted Accountants’ who has nothing to do with the CD is ultra virus to Rule 5 of the IBC 2016 and in the Statutory Provisions of S. 8 of the IBC. As long as it has been addressed properly and once served at the Registered Address, it is not the concern of the Applicant as to who receives it. Appellant also submitted that though the Ack. card of service of notice on Mr. Vipin Champawat Shantilal, is signed by him, being an Independent Director, he does not occupy any ‘Key Managerial Position’ and therefore cannot be said to be ‘effective service’. NCLAT safely construed that the Board of Directors has knowledge of the same. It is the Board of Directors who takes a call and acts on behalf of the CD and the Independent Director is a part of it. Be that as it may, the Respondent had issued a Legal Notice dated 20.08.2018 prior to the issuance of the Demand Notice in September 2018, addressed to the CD at the Registered Address. The same has not been denied by the CD. It was upheld that service of Demand Notice is satisfactorily served as mandated u/s 8 of IBC and is therefore, held sufficient.
  • Addressing the second issue, Appellant contended that the Petition filed by the OC was based on six invoices with dates ranging from 27.10.2014 to 31.10.2014 which were to be paid within 90 days as per the date of invoices. The last payment made by the CD was on 22.09.2016. Considering by NCLAT an established fact of maintaining a running account of CD & the manner in which such businesses are conducted and accounts are kept it would be material to see when the parties concerned treat the debt to be in default. Though the date of default in Demand Notice is stated to be 29.01.2015 it is pertinent to mention that the date of default mentioned in Form V of the Application is 22.09.2016 (last payment receipt date) and the Application was filed in October, 2018. Hence, Application fell within the period of limitation.
  • In respect to the third issue it was submitted by Appellant that there were transactions between one Mr. Puneet Shiv Kumar Agarwal and the OC through various group Companies. In an e-mail confirmation was sought from CD of its credit balance with the group companies. Appellant alleged that invoices are forged and fabricated & no amount was ‘due and payable. Further said that there is a ‘Pre-Existing Dispute’ between the parties established from the fact that the CD had filed an Application u/s 8 & 9 of IBC against the Companies of Mr. Punit Agarwal before NCLT, Mumbai. NCLAT held that it cannot fall within the definition of dispute relevant to the subject matter of the instant case, in the absence of any communication filed evidencing any ‘Pre-Existing Dispute’, prior to the filing of the S. 9 Application. The Appellant apart from raising a bald denial has not filed any substantive material in support of their contentions. The contention or the Appellant regarding false and fabricated invoices is unsustainable as the invoices on record bear the stamp of the CD by way of an ack.
  • For all the afore noted reasons, no illegality or infirmity found in the Impugned Order
    passed by NCLT, Mumbai. Hence, this Appeal is dismissed accordingly. Hence, this Appeal is dismissed accordingly.
Limitation, Pre- existing dispute &
servicing of demand notice.
31 24-03-2021 Kishanlal Likhmichand Bothra  VS
Canara Bank (704/2020)
  • Appeal filed by erstwhile Director of CD against an Impugned Order of NCLT, Mumbai dated 06.07.2020 for admitting an Application u/s 7 by FC.
  • Appellant contended that Application filed should have been dismissed on the grounds of limitation as the date of NPA is 03.12.2015 & filing date is 04.07.2019.
  • Respondent submitted that debt acknowledged in the books of accounts or balance-sheets can be treated as acknowledgments for extension of limitation u/s 18 of Limitation Act, 1963. Various OTS submitted by CD dated 02.07.2018, 26.03.2019,                19.08.2019 &

Resolution Plans dated 20.11.2018, 12.02.2019 to the FC.

NCLAT upheld that S. 18 of the Limitation Act is applicable to proceedings under IBC and that if there is ack. of debt in the balance-sheets or the OTS Proposal, the period of limitation would get extended if the ack. is made before the period of limitation expires.

  • Hence, Appeal is dismissed.
Limitation (Ack in balance sheet)
32 26-03-2021 Kolla  Koteswara Rao Vs. Dr SK Srihari   Raju  & Anr (717/2020)
  • Appeal is preferred by the Suspended Director of the CD challenging the Order of Admission. The main point for consideration in this Appeal are:-

(i) Whether the amounts paid by the R1 on behalf of the CD to the Lender Bank for compliance of the terms of the OTS would fall within the definition of Financial Debt under the Code.

(ii) Whether R1 being a Purchaser under an Agreement to Sell, executed pursuant to an OTS can claim to be a FC as defined under Section 5(7) of the Code.

  • Facts of the case: CD availed a financial loan from SBI (lender) of Rs. 21.50 Cr for the purpose of setting up a unit for manufacturing bulk drugs, formulation etc. On 30.11.2012 CD was classified as NPA. On 23.07.2014 Application u/s 9 of RDDB Act filed with DRT for recovery amt of Rs. 23.37 Cr. OTS entered between SBI & CD on 08.09.2017 for Rs. 11.70 crores. Agreement of sale entered between R1 (Purchaser) & CD (Seller) on 10.12.2017 with stipulation to sell the land allotted by TSIIC along with structure standing on the property and the Plant and machinery for the same consideration that was agreed between the parties to be the OTS amount payable to the Lender. As per Agreement to Sell the Corporate Debtor ought to obtain all necessary permissions including NOC from TSIIC and in the event, the CD had failed to do so the CD had to indemnify the FC. TSIIC cancelled the allotment vide letter dated 09.02.2018 and the OTS offer letter expired on May 2018. A Notice was issued by the R1 to the FC in October, 2018 seeking repayment of the amount of Rs. 2.35/- Crores paid by the first Respondent to the Lender on behalf of the CD along with interest @ 24% p.a.
  • NCLAT stated that the Agreement to Sell emanates from the OTS entered into between the CD and the Lender Bank and it is only in lieu of the consideration paid by the R1 to the Lender Bank on behalf of the CD, that the Agreement of Sale for the subject property was executed & in case of failure to execute & register the deed pay 24% p.a. int. establishes that the ‘debt’ satisfies the threefold criteria:- disbursal, time value of money & commercial effect of borrowing.
  • NCLAT addressing to second contention of Appeal stated the facts that as the disbursal of funds was by the R1 to the Lender Bank on behalf of the CD in pursuant to an OTS Settlement. There is no parent subsidiary relationship involved in this present matter. The loan was advanced to the CD and the amounts were disbursed by the R1 to the account of the CD. It was also pleaded that the specific intention of the R1 was to take over the land with the structures and the Plant and machinery so as to commence the business for which purpose the land was initially allotted by TSIIC. Hence, it can be safely construed that the R1 cannot be said to be having only a security interest over the assets of the CD.
  • NCLAT considered opinion that the ‘Debt’ is a ‘Financial Debt’ and the R1 is a FC. Hence, Appeal fails and is dismissed.
Determining Financial Debt & FC.

 

33 26-03-2021 Indian Overseas Bank VS RCM Infrastructure Ltd & Anr (736/2020)
  • Appeal filed by FC assailed the Order dated 15.07.2020 passed by NCLT Hyderabad bench, whereby it sets aside the sale of the assets of the CD.
  • The issues felt for consideration is

(a) whether after imposition of moratorium any transaction done with respect to the assets of the CD/Corporate Applicant deemed to be valid or not,

(b) whether provisions of IBC prevail over other laws?

  • CD was classified as NPA on 13.06.2016 by FC due to failure of loan repayment. Demand Notice u/s 13(2) of SARFAESI Act, 2002 was issued on 12.01.2018 to repay. Failing which in exercise of powers u/s 13(4) of SARFAESI Act took possession of two Secured assets which were mortgaged exclusively with the Appellant Bank which were actioned vide notice dated 27.11.2018 for Rs. 16.34 Crore each. Sale was confirmed on 13.12.2018 in favour of the successful bidders who deposited 25% of the bid amount & balance to be paid within 15 days. CD filed Application u/s 10 of IBC which was admitted & CIRP initiated from 03.01.2019 declaring moratorium. On 21.01.2019 Appellant filed its claim with IRP, balance 75% received on 08.03.2019 therefore revised claim filed on 11.03.2019. NCLAT is with the view that mere receiving of 25% of the sale proceeds does not conclude the sale unless the full amount is paid prior to imposition of moratorium.
  • Further Appellant contended that the Application filed by the Respondent/CD u/s 60(5) of IBC was indeed an attempt to redeem the property as the right of redemption stood extinguished as per S. 13(8) of the SARFAESI Act, 2002. NCLAT reiterated the fact that IBC is a complete Code itself and S. 238 of IBC has overriding effect over all other laws including SARFAESI Act, 2002. The sale of assets of the CD during moratorium is against the spirit of S. 14 of IBC.
  • Hence Appeal is dismissed as it’s devoid of merit.
During moratorium period receipt of balance sale
transaction is illegal & S. 238 of IBC has overriding effect
34 26-03-2021 Radico Khaitan Ltd Vs. BT & FC Pvt Ltd and Ors (919/2020)
  • The Appellant filed Appeal against an Order dated 02.09.2020 by NCLT, Hyderabad Bench whereby rejected the Application filed by the Appellant, for consolidation of two CIRPs.
  • NCLAT considers certain parameters whether fullfiled in the instant case while Ordering for consolidation of CIRP which are laid down by NCLT, Mumbai Bench in mentioned case law as follows:

(i) Common Control: R1 & R2 both are promoted by the same family Mr. & Mrs. Murlidher and there is unity of ownership and interest.

(ii) Common Directors: Mr. & Mrs. Murlidher holding directorship in R1 & R2.

(iii) Common assets: R1 conducts its business on an asset owned by R2, therefore, there is inter-dependency between both Respondents.

(iii) Common Liabilities: R1 & R2 have made themselves jointly and severally liable for the loans & have common creditors. Directors of R1 & R2 have given personal guarantees for the loans.

(v) Inter-dependence: Since R was conducting business on the land owned by R2 they are inter-dependent.

(vi) Pooling of resources: Being common directors as aforementioned common contacts & relationships are used to run R1 & R2.

(vi) Intricate links: R2 is associated company of the R1.

(viii) Common Financial Creditors: R1 & R2 had common FC.

  • Since all eight parameters are fulfilled consolidation of two CIRPs allowed & Impugned
    Order set aside.
Consolidation of two CIRPs.
35. 31-03-2021 Rajalakshmi Vardarrajan, RP of Arudaavis Labs Pvt Ltd VS G  Dhananjaya
Naidu (1077/2020)
  • Appeal is filed by RP against an Impugned Order dated 04.11.2020 directing the RP to vacate and handover the possession of leased premises to Respondent within 30 days. Respondent was given liberty to file claim Application within 30 days for the rental dues before the RP.
  • Factual matrix of the case: Application u/s 9 filed by Respondent on 30.07.2019 Claim for arrears of rent for period from 01.04.2014-01.08.2019 Rs.66,79,260/- submitted to RP & the same is admitted by RP. Lease deed initially executed in 2011 & renewed w.e.f. 01.06.2013 for 11 months. As per Section 12 CIRP period expired on 26.01.2020. RP did neither apply for extension for CIRP beyond the ordinary period of 180 days nor was a Resolution Plan approved or liquidation Order passed by the Adjudicating Authority before the expiry of CIRP period. Moratorium ceased to operate beyond 26.01.2020. Application for liquidation filed on 14.02.2020. Respondent filed before the AA on 05.08.2020 praying for handing over of leased premises as CIRP period had expired and moratorium had ceased to have effect from 27.01.2020. Same was allowed by the AA in terms of the Impugned Order. Liquidation of CD stands approved by the AA vide Order dated 12.01.2021.
  • The sole question arising for consideration in this Appeal is whether the Owner/ Lessor of land in actual physical possession of Corporate Debtor can recover the same while moratorium is in effect.
  • The Hon’ble Apex Court held that S. 14(1)(d) of the IBC, when it speaks about recovery of property “occupied”, does not refer to rights and interests created in property but only actual physical occupation of the property.
  • NCLAT find no force in the contention raised by the Appellant that the moratorium was in force on 04.11.2020 when the Impugned Order came to be passed.
  • Hence Appeal is dismissed.
Whether the Owner/ Lessor of land   in actual  physical possession of Corporate                Debtor can recover the same while moratorium is in effect

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Qualification: LL.B / Advocate
Company: Batatawala & Associates, Advocates
Location: Mumbai, Maharashtra, India
Member Since: 03 Oct 2020 | Total Posts: 2

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