Summary of Orders related to IBC 2016 passed by IBBI, NCLT, NCLAT, HC & SC during July to September 2020
Orders by Supreme Court
M/s Marathe Hospitality Vs. Mahesh Surekha & Ors. [SLP (C) No. 8139/2020]
The petitioner filed an appeal before the NCLAT. However, the NCLAT closed its functioning as one of its employees was suffering from COVID-19. The Supreme Court observed that the doors of justice cannot be closed and that NCLAT should find out a way for online hearing in such a situation. While dismissing the petition, it requested the NCLAT to start hearing the matter on interim stay, immediately on reopening.
Saurabh Jain & Anr. Vs. Union of India & Ors. [WP(s) (Civil) No(s). 679/2020]
The petitioners submitted that the Ministry of Finance (MoF) has, by a circular, directed personal guarantees issued by promoters/managerial personnel to be invoked. They further submitted that despite this circular, public sector undertakings continue not to invoke such guarantees resulting in huge loss not only to the public exchequer but also to the common man. The SC allowed the petitioners to withdraw the petition and approach the MoF with a representation within two weeks. It directed MoF to reply to the said representation within four weeks thereafter.
Jaypee Kensington Boulevard Apartments Welfare Association & Ors. Vs. NBCC (India) Ltd. & Ors. [CA Diary No(s). 14741/2020]
Appeals were filed by various stakeholders before the NCLAT against the order of approval of the modified resolution plan by the AA. The NCLAT in its interim order directed to implement the resolution plan subject to the outcome of the appeals. On further appeal, the SC agreed to the request of the parties that the appeals pending before the NCLAT should be withdrawn and be heard along with the appeals before the SC. It directed the IRP to continue to manage the affairs of the CD and stayed the operation of the interim order passed by the NCLAT.
The AA, by an order dated August 9, 2018, admitted an application filed in March 2018, seeking initiation of CIRP in respect of default that arose on July 8, 2011. On appeal against the said order, the NCLAT observed that the Code having come into force on December 1, 2016, the application made in 2018 is within limitation. It further observed that mortgage security having been provided by the CD, the limitation period of 12 years is available for the claim as per Article 61(b) of the Limitation Act, 1953 and hence the application is within limitation. The Supreme Court (SC) set aside the orders of the AA and NCLAT on the ground that the application under section 7 of the Code is barred by limitation.
The SC noted the following basics of the Code: (a) the Code is a beneficial legislation intended to put the CD back on its feet and is not a mere money recovery legislation; (b) CIRP is not intended to be adversarial to the CD but is aimed at protecting the interests of the CD; (c) intention of the Code is not to give a new lease of life to debts which are time-barred; (d) the period of limitation for an application seeking initiation of CIRP under section 7 of the Code is governed by Article 137 of the Limitation Act and is, therefore, three years from the date when right to apply accrues; (e) the trigger for initiation of CIRP by an FC is default on the part of the CD, that is, the right to apply under the Code accrues on the date when default occurs; (f) the default referred to in the Code is that of actual non-payment by the CD when a debt has become due and payable; (g) if default had occurred over three years prior to the date of filing of the application, the application would be time-barred, save and except in those cases where, on facts, the delay in filing may be condoned; and (h) an application under section 7 of the Code is not for enforcement of mortgage liability and Article 62 of the Limitation Act does not apply to the application.
The SC observed that the date of the Code’s coming into force is wholly irrelevant to the triggering of any limitation period for the purposes of the Code. There is nothing in the Code to even remotely indicate if the period of limitation for the purpose of an application under section 7 is to commence from the date of commencement of the Code itself. Similarly, nothing provided in the Limitation Act could be taken as the basis to support the proposition.
The NCLAT, by the impugned order, upheld the order of the AA requiring substitution of IRP. While disposing of the appeal, the SC observed that merely because a person was in the service of the FC and is getting pension does not disentitle him to act as the IRP. It, however, noted that the parties have agreed to substitute the IP. It observed that the substitution of the IP shall not reflect adversely upon the integrity of the IP concerned and the impugned order shall not be treated as a precedent.
M/s. Radha Exports (India) Pvt. Limited Vs. K.P. Jayaram & Anr. [CA No. 7474/2019]
The promoter of the appellant company had obtained a loan from the respondent. After part payment of the debt, the respondent requested the appellant company in 2004 to convert the balance amount into share application money for issuance of shares in the appellant company. The respondent requested the appellant company in 2007 to issue shares in the name of Mr. Krishnan against the said share application money and the amount would be treated as a personal loan from him to Mr. M. Krishnan. The respondents issued a demand notice on December 7, 2017, to which the appellant company, by a letter dated December 14, 2017, refuted the claims in the demand notice, inter alia claiming that all amounts due and payable to the respondent had duly been paid within 2007 and 2008. Thereafter, the respondent filed section 7 application as an FC in 2018. The AA did not admit the application holding that the respondents were not FCs, and in any case the claim of the respondents was hopelessly barred by limitation. On appeal, the NCLAT set aside the order of the AA. The appellant challenged the order of the NCLAT admitting the CD into CIRP. While setting aside the order of the NCLAT, the SC held that a personal loan to a promoter or a director of a company cannot trigger the CIRP. It also held: “the payment received for shares, duly issued to a third party at the request of the payee as evident from ofcial records, cannot be a debt, not to speak of nancial debt.”
The SC, while examining the bona fides of the Telecom Service Providers (TSPs) who have resorted to insolvency proceedings under the Code, framed, inter alia, the following questions for the AA to be decided in two months:
(a) Whether spectrum can be subjected to proceedings under the Code?
(b) Whether the proceedings under the Code are bona de?
(c) Whether TSPs can be said to be the owner based on the right to use the spectrum under licence granted to them? Whether ownership of spectrum belongs to the Government of India? Whether the spectrum is a natural resource, is the Government holding the same as cestui que trust (beneficiary of a trust)?
(d) Whether a licence can be transferred under the insolvency proceedings, particularly when the trading is subjected to clearance of dues by seller or buyer, as the case may be, as provided in Guideline Nos.10 and 11; whereas in insolvency proceedings dues are wiped off?
(e) When Government has declined permission to trade and has not issued NOC for trading on the ground of non-fulfilment of the conditions as stipulated in the Licence Agreement, whether the spectrum can be subjected to resolution proceedings which will have the effect of wiping off the dues of the Government, which are more than ` 40,000 crore?
(f) Whereas the dues of the Banks are much less, whether obtaining the Department of Telecommunication’s permission and its approval to the resolution plan would be a substitute for Trading Guideline Nos.10, 11, and 12?
(g) Whether spectrum licence is subjected to proceedings under the Code, and whether it overrides the provisions contained in the Indian Telegraph Act, 1885, Indian Wireless Telegraphy Act, 1933, and Telecom Regulatory Authority Act, 1997?
(h) In view of the fact that the licence contained an agreement between the licensor, licensee, and the lenders, whether on the basis of that, spectrum can be treated as a security interest and what is the mode of its enforcement?
(i) Whether the Banks can enforce it in the proceedings under the Code or by the procedure as per the law of enforcement of security interest under the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (SARFAESI Act) or under any other law?
(j) Whether dues under the licence can be said to be operational dues?
The Karad Urban Cooperative Bank Ltd. Vs. Swwapnil Bhingardevay & Ors. [CA Nos. 2955/2020 and 2902/2020]
The FC and the RP challenged the order of the NCLAT setting aside the approval granted by the AA to a resolution plan and remanding the matter back to the AA with a direction to have the resolution plan re-submitted before the CoC. The NCLAT had rejected the resolution plan on four grounds, namely, (a) the resolution plan suffered from issues of viability and feasibility; (b) the liquidation value mentioned by the successful resolution applicant (SRA) in its resolution plan tallied exactly with the liquidation value obtained by the RP, indicating a breach of confidentiality, in violation of Regulation 35(2); (c) the resolution plan does not note the fact that the ethanol plant and machinery shown as part of the assets of the CD, actually belonged to another company; and (d) the Expression of Interest invited interest for outright sale of the CD as a going concern, in violation of regulation 36A of the CIRP Regulations. The promoters/directors, who were appellants before the NCLAT, argued in support of the order of the NCLAT. The SC found such argument ‘like the wolf shedding tears for the lamb getting drenched in the rain’. It observed: “If all the factors that need to be taken into account for determining whether or not the corporate debtor can be kept running as a going concern have been placed before the Committee of Creditors and the CoC has taken a conscious decision to approve the resolution plan, then the adjudicating authority will have to switch over to the hands off mode.” It observed that the question of breach of confidentiality and leakage of confidential information can easily be tested on the touchstone of the benefit that accrued to the party who got the information and, in this case, no benefit accrued to the SRA. It noted that the advertisement as approved by the CoC was in accordance with the unamended regulation 36A of the CIRP Regulations, which did not mandate the publication of invitation of plans either in Form G or otherwise. Accordingly, it set aside the impugned order.
Sagufa Ahmed and Ors. Vs. Upper Assam Plywood Products Pvt. Ltd. & Ors. [CA Nos. 3007-3008/2020]
The appellants received the certified copy of the order dated October 25, 2019 on December 19, 2019. They, however, chose to file the statutory appeal before NCLAT on July 20, 2020. The NCLAT dismissed the application for condonation of delay as well as the appeal, on August 4, 2020, on the ground that it has no power to condone the delay beyond a period of 45 days. The appellants submitted that the NCLAT (i) erred in computing the period of limitation from the date of the order of the NCLT, contrary to section 421(3) of the Companies Act, 2013, and (ii) failed to take note of the lockdown as well as the order passed by the SC on March 23, 2020 extending the period of limitation for any filing from March 15, 2020 until further orders. The SC noted that the appellants chose to apply for a certified copy of the order after 27 days of pronouncement. After receiving the order, they did not file appeal till expiry of 45 days. They did not file the appeal on or before March 18, 2020 but filed it on July 20, 2020. The SC’s order extending the period of limitation came only on March 23, 2020. The SC observed: “What was extended by the above order of this Court was only “the period of limitation” and not the period upto which delay can be condoned in exercise of discretion conferred by the statute.” While dismissing the appeal, it observed that the said order was passed by the Court to benefit vigilant litigants who were prevented due to the pandemic and the lockdown, from initiating proceedings within the period of limitation prescribed by the general or special law.
Saurabh Jain & Anr. Vs. Union of India & Ors. [WP (Civil) No. 976/2020]
The petitioners, in pursuance of the order in WP(s) (Civil) No(s). 679/2020, submitted a representation to MoF, which responded that it has issued an advisory on August 26, 2020 to public sector banks for formalising policy and SOP regarding initiation of insolvency resolution process against PGs so that filing of insolvency applications in appropriate cases is made fully operationalised. On being satisfied of the response to the representation, the SC dismissed the petition.
Duff & Phelps India Private Limited Vs. Insolvency and Bankruptcy Board of India & Anr. [W.P. (C) 3936/2020]
The petitioner sought direction to set aside the order of the Disciplinary Committee (DC) of IBBI and to expunge certain observations made therein against him. The HC of Delhi observed that the nature of observations made in the order could prima facie cause grave prejudice to the petitioner and such observations should ordinarily be made after issue of a show cause to the concerned party. It may not be appropriate, however, to stay the operation of the impugned order in view of grave allegations made about the manner of functioning of the RP. Accordingly, it directed petitioner to give a representation to IBBI within three days and advised IBBI to pass a reasoned order uninfluenced by the observations made in the impugned order.
By another order, the HC permitted the petitioner to continue the assignments where it has been engaged by other RPs. It directed that such assignments shall not be terminated based on the observations made in the impugned order.
CA. Venkata Siva Kumar Vs. Insolvency and Bankruptcy Board of India (IBBI) & Ors. [W.P. No. 9132/2020 and W.M.P. No. 11134/2020]
The petitioner challenged regulation 7(2)(ca) of the IBBI (Insolvency Professionals) Regulations 2016, which stipulates that an IP shall pay a fee calculated at 0.25% of the professional fee earned for services rendered as such in the preceding financial year to the IBBI, alleging violative of Article 14, 19 and 21 of the Constitution. While dismissing the petition, the HC of Madras observed: “… we conclude that the IBBI does provide significant services, including in relation to IPs and that there is broad correlation between fees and services. Given the fact that direct or arithmetical correlation as between the fee received and service rendered is not necessary especially in the context of regulatory fees, we are of the view that Regulation 7(2)(ca) of the IP Regulations does not suffer from any constitutional infirmity on account of the absence of quid pro quo.” It held that the conferment of the power to charge a fee and the charging of such fee by using the annual remuneration as a measure does not amount to delegation of an essential legislative function to the IBBI.
As regards competence of the IBBI to levy fee, the HC observed: “From the above, we find that there can be no question whatsoever with regard to the powers of the IBBI to frame regulations with regard to the fee payable by IPs and insolvency professional agencies. As regards the charging of fees as a percentage of remuneration, we note that the fee making power is not subject to any fetters except that it should be for carrying out the purposes of the IBC. Given this statutory framework, we conclude that the IBBI is duly empowered under Sections 196 and 207 of the IBC to levy a fee on IPs, including as a percentage of the annual remuneration as an IP in the preceding financial year.”
Lalit Kumar Jain Vs. Union of India, Ministry of Law and Justice & Ors. [W.P. (C) 4849/2020]
The petitioner, a PG to a CD, challenged insolvency proceedings initiated against him. While staying the said proceeding, the HC of Delhi allowed the proceedings to continue in relation to the CD and the IRP to examine the liability of the petitioner.
Atin Arora Vs. Oriental Bank of Commerce [C.O. No. 3894/2019 with CAN 12340/2019]
The NCLT, Kolkata Bench admitted a section 7 application for initiation of CIRP against a CD. The petitioner, who is a director of the CD, filed an application for recall of the order inter alia on the ground that the said Bench did not have jurisdiction to entertain the application and the Bench at Cuttack has jurisdiction as the CD is located in Odisha. The NCLT, Kolkata Bench declined to recall the order, by the impugned order, stating that it had jurisdiction when section 7 application was filed. The petitioner challenged the impugned order. The respondent challenged the jurisdiction of the HC in deciding the matter when an appellate authority already exists under the Code. The HC of Calcutta observed: “There are no limits, fetters or restrictions placed on this power of superintendence and for all purposes, the HC as the custodian of justice within the territorial limits of its jurisdiction was armed with a weapon that could be wielded for the purpose of seeing that justice is meted out fairly and properly by the subordinate Courts or Tribunals.” It held that there is no bar on the HC to entertain an application under Article 227 of the Constitution of India, when a challenge is made to an order, which is otherwise amenable to be challenged by way of an appeal before the appellate forum if there is a patent error or miscarriage of justice apparent from the record. While noting that the Cuttack Bench of NCLT has exclusive jurisdiction to decide the matter, the HC set aside the orders of the NCLT, Kolkata Bench and directed it to transfer the proceedings to the NCLT, Cuttack Bench.
The petitioners challenged the order of the NCLT requiring all FCs to submit record of default from the IU along with the application under section 7 of the Code, and requiring the parties to submit such records in respect of applications filed earlier but waiting for admission. As regards authority of the NCLT, the HC observed: “Therefore, what becomes clear to me is that while both the NCLT and NCLAT have been conferred with powers to regulate their own procedure, such use of its power is circumscribed and subject to inter alia, the principles of natural justice as well as the provisions of CA, 2013 or the IBC, 2016, inclusive of any rules/ regulations made under the IBC, 2016 by the regulatory body, IBBI. Therefore, the powers of the NCLT and NCLAT is limited both by principles of natural justice as well as statutory provisions and regulations framed under such legislations.”
As regards evidence of debt, the HC of Calcutta observed: “On a close due diligence of the various provisions above, including section 7 of the IBC, 2016 read with Rule 4 of the AA Rules, 2016 and Form-1 therein, and regulation 8 of the CIRP Regulations, 2016, observations of the Supreme Court in paragraph 32 (provided above), it becomes crystal clear that apart from the financial information of the IU, eight classes of documents can be considered to be sources that evidence a “financial debt”. As regards evidence that can be provided along with section 7 application, the HC observed: “The three categories of evidence that can be provided are as follows: (a) record of the default recorded with the information utility; (b) such other record; (c) evidence of default as may be specified…. three different categories of documents are available to a financial creditor to prove proof of default by a corporate debtor.” As regards retrospective effect, the HC observed: “Therefore, any delegatee, let alone the NCLT, not even the IBBI can make regulations, by way of the impugned order or of such nature, to make a delegated legislation retrospective under the IBC, 2016.” Accordingly, the HC struck down the impugned order to be ultra vires the Code.
Arvind Kumar Rastogi Vs. The National Company Law Tribunal & Anr. [CM(M) 350/2020 & CM APPL 11249/2020 (stay)]
The HC of Delhi noted that the HC of Calcutta vide judgment dated August 18, 2020 in the matter of Univalve Projects Pvt. Ltd Vs. The Union of India & Ors. has struck down the order dated May 12, 2020 of the AA directing mandatory filing of default from the IU, as being ultra vires the Code and Regulations. Prior to the passing of the said order by HC of Calcutta, the AA vide another Order dated August 13, 2020 modified its earlier order dated May 12, 2020 directing filing of record of default from IUs, wherever the same is available. The HC of Delhi observed that since the order dated May 12, 2020 was struck down by the HC of Calcutta, the order dated August 13, 2020 modifying the earlier order dated May 12, 2020 cannot stand. While directing the respondents to file a fresh affidavit indicating their stand about the judgment of the HC of Calcutta, it stayed the operation of the order dated August 13, 2020.
The petitioner, a PG to a CD, challenged the order of AA appointing RP in the individual insolvency proceedings initiated under Part III of the Code. While staying the said proceeding, the HC of Delhi allowed the proceedings to continue in relation to the CD and the IRP to examine the liability of the petitioner. It restrained the petitioner from transferring, alienating, encumbering, or dealing with, or disposing of any of his assets, or his rights, or beneficial interest therein till the next date.
Vachaspati and Ors. Vs. Insolvency and Bankruptcy Board of India & Ors. [W.P.(C) 5711/2020]
The petitioner was aggrieved by the reply sent by IBBI in respect of his complaint. The HC of Delhi found that the complainant has been informed about the status of the complaint by way of a cryptic order and this is not in compliance with the Regulations. It agreed to examine whether the complainant has a right to participate in the proceedings that may be initiated by IBBI on a complaint.
Sandip Kumar Bajaj & Anr. Vs. State Bank of India & Anr. [I.A. No. G.A. 1/2020 in W.P.O. 236/2020]
The petitioners challenged the show cause notice issued by State Bank of India calling upon the petitioners to show cause as to why their names should not be included in the list of willful defaulters as per RBI Guidelines. They are the erstwhile promoters/directors/ guarantors of a CD, which is undergoing CIRP since March 17, 2020. They contended that by reason of moratorium in respect of the CD, the proceedings under the RBI Guidelines should be stayed. The HC of Calcutta held that section 14(3)(b), that the prohibits institution or continuation of suits and other proceedings against the CD, does not extend to a surety.
National Company Law Appellate Tribunal
Vijay Kumar V. Iyer Vs. Bharti Airtel and Ors. (CA(AT)(Ins) No. 530 & 700/2019]
The AA, by an order, permitted to set off certain amount to be paid by the Aircel Companies to the Airtel Companies. The RP challenged the said order. Two respondents submitted that the right of a party to apply set off is a well-known concept in accounting and that such right has been recognised for more than a century in the context of Insolvency /liquidation under Companies Act, Presidency Insolvency Act, and Provincial Insolvency Act. Another respondent opposed it being in violation of moratorium imposed under the Code and prejudicial to the interest of secured creditors. The NCLAT observed that the accounting conventions cannot supersede any express provisions in the specific law on the subject. Accordingly, it set aside the impugned order and directed the respondents to pay the amount whatever has been set off by them to the Aircel Entities.
Monotrone Leasing Private Limited Vs. PM Cold Storage Private Limited (CA(AT)(Ins) No. 99/2020]
The AA, by an order, rejected an application filed under section 7, inter alia, on the ground that the AA cannot act as a Recovery Tribunal and the CD is a solvent company. The NCLAT observed that the moment the AA is satisfied that a default has occurred, the application must be admitted unless it is incomplete and a presumption cannot be drawn that a solvent company cannot commit any default, as inability to pay off debts and committing default are two different aspects which are required to be adjudged on equally different parameters. It further observed that section 65 provides for penal action for initiating CIRP with a fraudulent or malicious intent or for any purpose other than resolution. This cannot be construed to mean that if a petition is filed under section 7, 9 or 10 of the Code without any malicious or fraudulent intent, then also such a petition can be rejected by the AA on the ground that the intent of the applicant was not resolution. As the proceedings under the Code are summary in nature, it is difficult to determine the intent of the applicant filing an application unless shown explicitly by way of documentary evidence.
Bank of Baroda on behalf of Committee of Creditors of Veda Biofuel Ltd. Vs. Mr. Sisir Kumar Appikatla, RP for Veda Biofuel Ltd. & Ors. (CA(AT)(Ins) No. 579/2020]
The AA rejected the resolution plan. The appellant filed an appeal on the ground that the resolution applicant was not disqualified under section 29A of the Code to submit a plan and the CoC had approved the resolution plan with an overwhelming majority of 96.39% and the decision taken by the CoC on the basis of its commercial wisdom could not be interdicted by the AA.
The NCLAT noted that Mr. Madhusudhan, one of the resolution applicants, and Mr. P. Vijay Kumar, who is erstwhile promoter and MD of the CD, and who had mismanaged the affairs of the CD rendering it insolvent, entered into a restructuring agreement whereby the latter would continue to hold substantial stake in the CD. Both entered into a settlement agreement with the applicant for withdrawal of application under section 12A. The CoC, however, did not consider the matter for withdrawal of application, but approved restructuring plan as resolution plan. The AA took the view that the former MD was virtually seeking backdoor access under the restructuring plan masqueraded as a resolution plan and therefore did not meet the requirements of section 30(2). While upholding the order of the AA, the NCLAT observed: “Adjudicating Authority has rightly declined to approve the Resolution Plan of Mr. Madhusudhan who was only used as a ploy to gain control of the Corporate Debtor by the very person who had pushed the Corporate Debtor into insolvency.”
Mr. Vishal Vijay Kalantri Vs. Mr. Shailen Shah (RP of Dighi Port Limited) & Ors. (CA(AT)(Ins) No. 466/2020]
The appellant challenged the order of the AA approving a resolution plan inter alia on grounds that the settlement offer was superior to the resolution plan and the resolution plan did not have approval of the Competition Commission of India (CCI) before its approval by CoC. While dismissing the appeal, the NCLAT held that the superiority of settlement offer in terms of maximisation of the value of the assets of the CD in comparison to the resolution plan cannot be accepted as it is a business decision resting upon the commercial wisdom of the CoC and is not amenable to judicial review. Placing reliance on Arcelormittal India Pvt. Ltd. Vs. Abhijit Guhathakurta, it held that the prior approval of CCI is directory and not mandatory.
GRIDCO Limited Vs. Surya Kanta Satapathy and Ors. (CA(AT)(Ins) No. 1271/2019]
The RP submitted that the plant of CD was damaged in a storm in June, 2018 resulting in stoppage of supply of power to the Appellant. Since the CD could not start the plant and pay its debts, CIRP commenced in February, 2019. The appellant terminated the power purchase agreement (PPA) in July, 2019, which was challenged. The AA directed restoration of PPA in October, 2019. Subsequently, the successful resolution applicant submitted resolution plan. The resolution applicant contended that it submitted the resolution plan primarily on the subsistence of the PPA and the plan was approved by the CoC and the AA. The NCLAT dismissed appeal against approval of resolution plan in January, 2020. The plan, therefore, attained finality. The challenge in this appeal was limited to direction of the AA to restore PPA. The appellant submitted that it was constrained to terminate PPA, as CD failed to restore the power supply despite being asked to do so and that it was willing to restore the PPA at revised rates. The NCLAT observed that clause 14 of the PPA reads: “…Neither party shall be entitled for claiming compensation for damages and loss in the event of force majeure…”. This clause covers vagaries of nature resulting in inability to continue to supply power. Further, clause 17.4 provides that the affected party, in the event of default in performance of obligation, is required to issue a default notice to the other. The appellant did not issue the termination notice. Therefore, termination of PPA in the given circumstances is not sustainable. It dismissed the appeal accordingly.
M.P. Agarwal Vs. Shri Lakshmi Cotsyn Ltd. & Anr. (CA(AT)(Ins) No. 620/2020]
The Appellant contented that its settlement proposal of ` 650 crore far exceeded the liquidation value of the assets of the CD and hence there was no justification for the CoC to reject the same. The NCLAT observed that it is the settled law that the CoC enjoys primacy in the matter of approval or rejection of resolution plan/settlement proposal and the AA as well as the appellate tribunal would be exceeding its jurisdiction in questioning the commercial wisdom of the CoC, and accordingly dismissed the appeal.
Committee of Creditors of Educomp Solutions Ltd. Vs. Ebix Singapore Pte. Ltd. & Anr. (CA(AT)(Ins) No. 203/2020]
The AA allowed withdrawal of resolution plan with cost and subject to other legal consequences, as the resolution applicant has chosen to withdraw the plan which has created doubt about its implementation. The respondents supported the impugned order on the grounds that the resolution plan was rendered commercially unviable on account of lapse of substantial time and severe and inordinate delays in the CIRP qua the CD; severe mismanagement and gross financial irregularities and fraud in the affairs of CD during 2014-2018 was subsequently uncovered; resolution plan is an offer and it binds the offeror only when it is accepted as per its term; etc. The NCLAT observed that the AA cannot enter into the arena of the majority decision of the CoC other than the grounds mentioned in section 32. It further noted that after due deliberations, when the resolution applicant had accepted the conditions of the resolution plan especially keeping in mind the ingredients of section 25(2)(h) of the Code to the effect that no change or supplementary information to the resolution plan shall be accepted after the submission date of resolution plan then it is not open to the resolution applicant to take a ‘topsy turvy’ stance and is not to be allowed to withdraw the approved resolution plan. It set aside the impugned order.
Mr. Devarajan Raman, RP of Poonam Drum & Containers Pvt. Ltd. Vs. Bank of India Ltd. (CA(AT)(Ins) No. 646/2020]
While disposing of an appeal, the NCLAT had directed the AA to decide the fee of RP. The AA accordingly allowed all expenditure incurred by the RP and directed payment of a consolidated amount of ` 5 lakh + GST towards his fee. The appellant submitted that the fee is inadequate and there are several judgments from the NCLAT where the fee has been left to the commercial wisdom of the CoC. Since the RP worked only for three months, the NCLAT found the amount not unreasonable. While dismissing the appeal, it observed that the fixation of fee is not a business decision depending upon the commercial wisdom of the CoC.
The last date for submission of resolution plans was January 8, 2019. The CoC opened two resolution plans on January 10, 2019 and discussed the plans on January 13, 2020. However, the RP accepted two more resolution plans – one on January 13, 2019 and the other on January 28, 2019 – after expiry of the deadline for submission of plans. The appellant contested the conduct of the RP accepting two resolution plans without extending the timeline. The AA issued two orders, one rejecting an application raising objections against the alleged illegalities committed in conduct of CIRP and the other approving a resolution plan. While setting aside both the orders on appeal, the NCLAT held as under:
(a) After the expiry of the deadline for submission of resolution plan, the RP, with the approval of CoC, is fully authorised to invite fresh invitation for expression of interest for submission of resolution plan. However, the RP accepted plans after the deadline without extending the deadline and this is arbitrary and illegal, which the CoC cannot ratify. Such ratification is not covered by commercial wisdom.
(b) A single member Bench heard the arguments on the application alleging various illegalities committed by the RP. However, a two-member Bench, which included a member who did not hear the argument, pronounced the impugned order. The NCLT Rules, 2016 provides for the Bench which hears the case to also pronounce the Order.
Sunil S. Kakkad Vs. Atrium Infocom Private Limited and Ors. (CA(AT)(Ins) No. 194/2020]
The CoC, in its 3rd meeting, passed a resolution unanimously to liquidate the CD as it was not working for the last five years and there was no possibility of resolution plan. The AA accordingly ordered liquidation. The appellant challenged the said order on various grounds, namely, liquidation is the last resort and it cannot and should not be passed
without following due process of resolution of the CD; the CoC decided to liquidate the CD without even inviting expression of interest, and taking any steps for resolution. The NCLAT held that the decision of CoC to liquidate the CD without taking any steps for resolution of the CD is covered under the Explanation to sub-clause (2) of section 33 of the Code and the same being decision on commercial wisdom, is non-justiciable given the law laid by the SC in case of K. Sashidhar Vs. Indian Overseas Bank.
Bharat Heavy Electricals Ltd. Vs. Mr. Anil Goel, Liquidator of Visa Power Limited & Anr. (CA(AT)(Ins) No. 22/2020]
The NCLAT set aside an auction conducted during the liquidation on noticing several irregularities, such as improper valuation reports, failure of the liquidator to prescribe pre-bid qualifications, discrepancy in the reserve price, discrepancy with regard to the actual quantity of items sold, the irregular conduct of the liquidator, etc. It, inter alia, directed as under:
“7) Copy of Judgement of the Adjudicating Authority and this Judgement may be sent to IBBI which may consider if actions, if any, are required to be initiated under Chapter – VI of IBC. If Respondent No.! – Liquidator, extends full cooperation in carrying out the Orders which we are passing, especially, to get back goods/material of Corporate Debtor and reauction, IBBI may consider the same as mitigating factor, in favour of Respondent No.! in action (if any) under Chapter – VI of IBC.
8) If it appears to Adjudicating Authority that Respondent No.! is not cooperating, it would be at liberty to replace him with another person as Liquidator.”
Invent Assets Securitisation and Reconstruction Pvt. Ltd. Vs. Xylon Electrotechnic Pvt. Ltd. (CA(AT)(Ins) No. 677/2020]
The AA, by an order, declined to admit an application on the ground that the financial debt was barred by limitation. The NCLAT reiterated that the period of limitation for filing of an application under section 7 would not be extended on the basis of pursuit of a remedy under the SARFAESI Act, 2002 or in a recovery proceeding before the DRT.
The respondents had booked dwelling units under a real estate project. Even after lapse of five years, the CD neither completed the construction of these units nor refunded the amount to them. The UP RERA issued a recovery certificate in favour of them. Being the decree holders with a recovery certificate, they filed a section 7 application which the AA admitted by an order. On an appeal against the said order, the NCLAT considered whether application filed by respondents under section 7 was maintainable. It noted that the respondents are no more allottees of a real estate project after issuance of recovery certificate. They approached the AA as decree-holders seeking execution of money due under the recovery certificate and not as allottees. The NCLAT held that a decree-holder, though included in the definition of creditor, does not fall within the definition of FC, and cannot seek initiation of CIRP as FC.
Edelweiss Asset Reconstruction Co. Ltd. Vs. Shri Shyam Sundar Rathi & Anr. (CA(AT)(Ins) No. 683/2020], August 14, 2020
While considering the application for liquidation of the CD, the AA directed the RP to produce details of assets of the CD along with the valuation report by two valuers. The NCLAT noted that that the CD was not a going concern and there being no resolution plan, the CoC unanimously decided to send the CD into liquidation. While setting aside the order, the NCLAT observed that the AA was left with no option in such a case but to order the liquidation of the CD and collection of material about the assets of the CD and valuation reports was not germane to the disposal of the application under section 33 of Code.
Shree Sidhivinayak Cotspin Private Limited & Anr. Vs. RP of Marurti Cotex Limited & Anr. (CA(AT)(Ins) No. 694/2020]
The AA approved a resolution plan with an observation that the resolution applicant has sought certain reliefs and concessions and it may apply to the relevant authority for the same and such authority may consider as per applicable laws. The appellant challenged the order of the AA on the ground that it has modified the resolution plan. The NCLAT observed that the AA has neither varied the terms of the approved resolution plan, nor denied any concession and held that the appeal is not maintainable.
Smt. Andal Bonumalla Vs. Tomato Trading LLP & Ors. (CA(AT)(Ins) No. 752/2020]
The AA admitted a section 9 application of a person who had given an advance to the CD for supply of sugar and the CD failed to supply sugar. While setting aside the order of admission, the NCLAT reiterated that advance payment for supply of goods cannot be treated as an operational debt and hence application under section 9 is not maintainable.
The appellant informed that the matter had been posted before a Single Bench of the AA. The NCLAT disposed of the appeal with a request to the President, NCLT to constitute a Bench consisting of a judicial member and a technical member to decide the matter in conformity with and in compliance with the order passed by SC in the WP No. 722 of 2019.
M/s. Vistara ITCL (India) Ltd. & Ors. Vs. Mr. Dinkar Venkatasubramanian & Ors. (CA(AT)(Ins) No. 703/2020]
The appellant had lent money to WLD and BRASSO for which the CD had created pledge of shares. The RP, however, refused to consider the appellant as a secured FC. The appellant filed an application before the AA seeking a direction to RP to include appellant No.1 in the CoC as a secured FC of the CD. The AA dismissed the application. While dismissing the appeal against the order of the AA, the NCLAT observed that the appellant had not advanced any money to the CD, and pledge of shares by the CD does not tantamount to a guarantee or indemnity and therefore the appellant is not an FC.
Park Energy Pvt. Ltd. Vs. Syndicate Bank & Ors. (CA(AT)(Ins) No. 270/2020]
The NCLAT observed that mere fact of debt being due and payable is not enough to justify the initiation of CIRP at the instance of the FC unless it establishes default on the part of the CD. The onus of proof of default lies on the FC and it must demonstrate that default has occurred on account of failure on the part of CD to discharge its liability.
E.C. John Vs. Jitender Kumar Jain & Ors. (CA(AT)(Ins) No. 249/2020]
The AA, by the impugned order, directed (a) the appellant not to disturb the possession of the liquidator or to create obstruction on a property of the CD; (b) quashing a civil suit on the file of Civil Court, and (c) Police to arrest the appellant for threatening and obstructing Liquidator. The appellant submitted that he was having possession of a part of property of CD on the strength of a letter dated August 17, 2002. The NCLAT noted that the said letter only states that the possession was handed over to the appellant ‘for management of the school’. It observed: “The Appellant does not show that he is in possession as owner or tenant, or licensee as such. Only giving property to manage school at the place would not be sufcient for the Appellant, to claim possession, when the Corporate Debtor goes in liquidation.” It upheld the direction of the AA as at (a) above. It set aside the direction at (b) above, being not legal. It substituted the direction at (c) above by a direction that the Police concerned should take suitable action as per law.
Phoenix ARC Private Limited Trustee of Phoenix Trust FY 16-18 Vs. Kotak Mahindra Prime Limited & Anr. (CA(AT)(Ins) No. 749/2019]
The AA directed the RP to adjust the payment of EMIs during the moratorium against the claim and admit the remaining amount. The NCLAT, by majority, dismissed the appeal with an observation that it was premature. One Technical Member, however, took a view that during the currency of moratorium, the sanctity of maintaining the integrity of the assets of the CD is a sine qua non for the CIRP. He observed: “In view of the blanket prohibition mandated by Section 14 after the initiation of CIRP it stands to reason that any change in the conditions of assets from what existed on the date of initiation of CIRP is not permitted in the normal course. The section 14 also does not give any authority to the RP or AA to accord any preferential treatment to any creditor.” If one creditor is given preferential treatment, it would lead to the collapse of the waterfall mechanism under the Code.
Kind Special Steels (India) Pvt. Ltd. Vs. Amtek Auto Ltd. (CA(AT)(Ins) No. 782/2020]
The SC had directed to invite fresh offers as the approved resolution plan was not implementable. The appellant sought a direction to the RP to admit his claim at this stage, which the AA declined. The NCLAT observed that the SC opened a limited window permitting invitation of fresh offers and not to recommence CIRP de novo and dismissed the appeal.
Deepakk Kumar Vs. M/s Phoenix ARC Pvt. Ltd & Anr. (CA(AT)(Ins) No. 848/2019]
The applicant sought review of a judgement of the NCLAT for correction of an error ‘apparent on the face of record’ leading to an error. The NCLAT observed that the power to review is not an inherent power under Rule 11 of the NCLT Rules, 2016 and hence a ‘review jurisdiction’ cannot be pressed into service as an ‘appellate jurisdiction’. It further noted that the Code, unlike the Companies Act, does not contain any provision for review and accordingly dismissed the application.
JM Financial Asset Reconstruction Company Ltd. Vs. Samay Electronics Pvt. Ltd. (CA(AT)(Ins) No. 807/2020]
In terms of the impugned order, the technical member admitted the application while the judicial member declined to admit it. The NCLAT directed the same Bench of the AA to make a reference to the President of the NCLT for placing the matter before a third member for hearing and the application would be decided in accordance with the opinion of the majority of the members.
Shailesh Chawla and & Vs. Vinod Kumar Mahajan, RP & Ors. (CA(AT)(Ins) No. 571-572/2020]
The AA directed its registry to send a copy of the impugned order to IBBI for consideration for initiation of prosecution. The NCLAT concluded that the AA was well within its ambit to make a recommendation for considering commencement of proceedings and not a recommendation for initiation of criminal proceedings and it is for the IBBI to take a final call after applying its independent overall assessment in an objective and dispassionate manner. It dismissed the appeal accordingly.
Bishal Jaiswal Vs. Asset Reconstruction Company (India) Ltd. & Anr. (CA(AT)(Ins) No. 385/2020]
A three-member Bench of the NCLAT, while hearing an appeal, thought it proper to refer the five-member judgement of the NCLAT in the matter of V. Padmakumar Vs. Stressed Assets Stabilization Fund and Anr. [CA(AT)(Ins)No. 57 of 2020] for reconsideration, as it involved an issue of great importance. It observed: “Hon’ble Supreme Court and various Hon’ble High Courts have consistently held that an entry made in the Company’s Balance Sheet amounts to an acknowledgement of debt under Section 18 of the Limitation Act, 1963, in view of the settled law, V. Padmakumar’s Case requires reconsideration.”
Mohan Gems & Jewels Pvt. Ltd. Through its Liquidator, Debashish Nanda Vs. Vijay Verma (CA(AT)(Ins) No. 849/2020]
While staying the impugned order, the NCLAT noted from the impugned order that AA has made certain observations regarding the legality of some regulations framed by the IBBI. It directed that the IBBI be impleaded as a necessary party.
Indian Overseas Bank Vs. Arvind Kumar (CA(AT)(Ins) No. 558/2020]
The appellant challenged the order of AA directing it to release the margin money held by it against a bank guarantee, which was invoked during the moratorium. It submitted that the margin money was adjusted towards the payment on account of the invocation of the said guarantee. The respondent submitted that such adjustment is barred under section 14. The NCLAT observed that ‘security interest’ as defined in section 3(31) does not include the ‘Performance Bank Guarantee’ and as such, it is not covered by section 14. It clarified that margin money is not a security, as argued by the respondent. If the bank guarantee expires without being invoked, the margin money reverses to the borrower, and in case the bank guarantee is invoked by the beneficiary, the margin money goes towards payment of bank guarantee to the beneficiary, and nothing remains with the financial institutions, which can be reversed to the CD. The NCLAT set aside the impugned order.
Kundan Care Products Ltd. Vs. Mr. Amit Gupta and Ors. (CA(AT)(Ins) No. 653/2020]
The appellant, who is successful resolution applicant assailed the impugned order rejecting its application for withdrawal of its resolution plan, on the ground that there is no legal basis for holding that an application for withdrawal of a resolution plan post approval is not maintainable. The NCLAT observed that a resolution applicant whose resolution plan stands approved by CoC cannot be permitted to alter his position to the detriment of various stakeholders. It rejected the argument that specific performance of the resolution plan cannot be compelled on four major grounds, namely, (a) There is no provision in the Code entitling the successful resolution applicant to seek withdrawal after its plan stands approved by the CoC; (b) The successful resolution plan incorporates contractual terms binding the resolution applicant, but it is not a contract of personal service which may be legally unenforceable; (c) The resolution applicant is estopped from wriggling out of the liabilities incurred under the approved plan and the principle of estoppel by conduct would apply to it; and (d) The value of the assets of the CD depletes with passage of time consumed in CIRP and in the event of successful resolution applicant walks out with impunity, the CD’s depleting value would leave all stakeholders in a state of devastation.
National Company Law Tribunal
Syndicate Bank Vs. Bothra Metals and Alloys Limited (CP(IB) No. 2579/MB.IV/2019]
The CD contested section 7 application, inter alia, on grounds of limitation. The AA noted that there was an acknowledgement of debt in the balance sheet of the CD all along. It is well-settled through various judgments of the SC that acknowledgement in the balance sheet of the company satisfies the requirements of section 18 of the Limitation Act, 1963, leading to a fresh period of limitation commencing from each such acknowledgement. The AA admitted the application.
M/s Shree Dev Chemicals Corporation Vs. Gammon India Limited (CP(IB) No. 3637/MB.IV/2018]
The CD challenged application for CIRP on the ground that the applicant, being an unregistered firm, cannot file ‘suit’ under section 69(2) of the Partnership Act, 1932. The AA held that the said provision applies only to a ‘suit’ and not to proceedings, while the applications filed under the Code are not ‘suits’ but only proceeding. Therefore, the bar under section 69(2) of the Indian Partnership Act does not apply to the applications under the Code.
M/s. Brand Realty Services Ltd. Vs. M/s. Sir John Bakeries India Pvt. Ltd., ((IB)1677(ND)/2019]
The applicant filed a section 9 application. The AA observed that the application was not against the invoices raised, but for breach of a settlement agreement. It held that default of instalment of settlement agreement does not come within the definition of operational debt and hence dismissed the application.
SBER Bank Vs. Varrsana Ispat Limited (IA(IB) No. KB/2020 in CP(IB) No. 543/KB/2017]
The Liquidator filed an application under sections 60(5) and 32A of the Code seeking permission to sell the assets of the CD which were attached by the Enforcement Directorate (ED), in view of section 32A. The ED objected to the application on three grounds: (a) An application under section 32A can be made only after the liquidation process is over or resolution plan is approved; (b) An application under section 32A can be filed only by the successful resolution applicant and not the liquidator; and (c) the rights of the parties had already been crystallised through proceedings before the PMLA Appellate Authority and hence subsequent change in law (insertion of section 32A) would not take away such rights which had attained finality. The AA held that section 32A is also applicable to the assets of the CD undergoing liquidation and a liquidator can file an application like the one in hand. It further held that a liquidator can proceed with the sale of the assets even if it is under attachment by the ED, to continue the time bound process of liquidation under the Code and upon completion of the sale proceedings, the buyer can take appropriate steps to release the attachment. The attachment and confiscation of properties of a CD undergoing CIRP or liquidation is void under section 32A of the Code.
Allahabad Bank Vs. Anil Kumar IRP for KSL & Industries Ltd. (IA 90/2020 in IA 691/2019 in C.P.(IB) 397/NCLT/AHM/2018]
The CIRP commenced on September 6, 2019. There has been a stalemate since the first meeting of the CoC on the appointment of IRP as RP. Keeping the time bound nature of CIRP, the AA, in exercise of its power under Rule 11 of the NCLT Rules, 2016, appointed another IP as IRP/RP and directed him to complete the CIRP as early as possible.
M/s. Om Logistics Ltd. Vs. M/s. NTL Electronics India Limited [(IA/1658/2020) in CP(IB) No. 814/ND/2019]
An OC sought a direction to the RP to include interest in the admitted claim. The AA studied the distinction between operational debt and financial debt, the requirements of default under sections 7 and 9 of the Code and the related case laws. It concluded that the claim of interest is not maintainable in case of operational debt.
A creditor filed an application against PG of a CD under section 97(3) of the Code. The respondent contended that section 99 of the Code requires the RP to submit the report to the AA with reasons for acceptance or rejection of the application. Since the application for approval of the resolution plan in CIRP of the CD is pending, the RP cannot file any report and therefore appointing the RP would be premature. The AA observed that the law does not envisage that the insolvency resolution of the personal guarantor should follow only when the process of CIRP of the CD has come to an end. It appointed RP accordingly.
LML Limited (under liquidation) through Liquidator Vs. Office of Commissioner of Income Tax, Mumbai [CA No. 389 of 2019 in CP(IB) No. 55/ALD/2017]
The liquidator sold certain properties relinquished by the secured creditors. Before proceeding to distribute the proceeds, she filed an application with the AA seeking guidance whether she is required to deposit capital gains on sale of secured assets and include it in the liquidation cost to be defrayed first and distribute the balance amongst the claimants. The AA opined that upon realisation of the liquidation estate of the CD, it must be distributed in accordance with the waterfall mechanism under section 53. The dues towards Government, be it tax on income or on sale of properties, would qualify as operational debt and must be dealt with accordingly. It noted that a secured creditor is entitled to effect sale under the SARFAESI Act and appropriate the entire amount towards its dues, without any liability to first pay capital gain. If the capital gain is first to be provided for, and then be included as liquidation cost, it would create an anomalous situation in the secured creditor getting a lesser remittance than what it could have realised had it not released the security into the common corpus. It is for this purpose that the provision of section 178 of the Income-tax Act, 1961 has been amended giving priority to the waterfall mechanism over government dues. The AA held: “We therefore hold that the tax liability arising out of the sale shall be distributed in accordance with the provision of Sec 53 of the Code. The applicability of Section 178 or 194 IA of the IT Act will not have an overriding effect on the water fall mechanism provided under Section 53 of the Code, which is a complete code in itself, and the capital gain shall not be taken into consideration as the liquidation cost.”
Bank of India Vs. V. Mahesh, Liquidator of Nagarjuna Oil Corporation Limited & Anr. [IA/497/2020 in MA/289/2018 in TCP/10/IB/2017]
The applicant challenged the order of the liquidator rejecting its claim on the ground of violation of natural justice, that is, he was not afforded an opportunity of being heard before the order of rejection. The AA observed that it is almost impracticable for the liquidator to follow the principles of natural justice before admitting or rejecting an application because he cannot be selective in his approach and if the same is applied universally it will make the timeline under the Code haywire and defeat the provisions of the Code. It also noted that the liquidator has passed a well-reasoned order in terms of section 40 of the Code and same cannot be referred as a non-speaking order. In view of the above observations, the appeal was dismissed.
Techno Electric & Engineering Co. Ltd. Vs. McLeod Russel India Ltd. [TP 38/2020]
The applicant filed a section 7 application on July 8, 2019 before Kolkata Bench. As the application remained unattended, it filed an appeal. The NCLAT disposed of the appeal, by an order on March 3, 2020, with a direction to the AA to accord priority and make all endeavour to pass the order within 15 days. The applicant filed a transfer application. Owing to shortage of members at Kolkata, the Principal Bench transferred the section 7 application to New Delhi Bench V with a direction to list it on October 20, 2020.
Invest Asset Securitisations & Reconstruction Pvt. Ltd. Vs. M/s. Mohan Gems & Jewels Pvt. Ltd. [I.A. 1490/2020 in CP(IB) No. 590(PB)/2018]
The liquidator filed an application seeking closure of liquidation process in accordance with regulation 45(3)(a) of the Liquidation Regulations on the premise that the CD was sold as a going concern. The AA, while dismissing the application as misconceived, inter alia, observed: (a) A company being, a juridical person with perpetual succession, cannot be sold. It can only be dissolved; (b) Selling of company in liquidation is unknown to law and beyond the discretion given to IBBI under section 240 (2) (y) of the Code; (c) Regulation 45(3) is repugnant to the mandate under section 54; and (d) Tribunals cannot test the vires of the parent legislation, as it is the creature of the said statute, but they are competent to test the vires of subordinate / delegated legislation.
Sundaresh Bhat Vs. Assistant Commissioner of State Tax & State Bank of India [IA No. 1043 of 2020 in CP(IB) No/ 490-MB-2018]
The AA passed an order for liquidation which was stayed by NCLAT with direction to RP to keep the CD as a going concern. On the direction of R1, R2 transferred ‘1.24 crore towards pre-CIRP dues of the CD to R1. The RP filed an application seeking return of the amount, being a transfer in violation of section 14 of the Code. Agreeing with the RP, the AA directed R1 to refund the sum to the account of the CD.
The DC passed a few orders with a variety of directions for contraventions of the provisions of law. The contraventions included: (a) an IP appointed a person, who is not a RV, for valuation in CIRP; (b) a person conducted valuation in a CIRP without having registration on the date of valuation; (c) an IP undertook assignment while not having AFA; etc. The DC has disposed of 37 show cause notices against IPs by September, 2020.
During the quarter, IBBI rejected six applications for registration as RV as the applicants failed to establish the qualifications and experience required for registration as RV.