Partial Payment Of PF & Gratuity Dues Violative Of Section 30(2)(E) Of IBC: NCLAT Chennai Reiterates

Case Title: Mrs. C.G. Vijyalakshmi v Shri Kumar Rajan & Ors.

Case No.: Company Appeal (AT) (CH) (Ins.) No. 29 of 2021

The National Company Law Appellate Tribunal (“NCLAT”), Chennai Bench, comprising of Justice M. Venugopal (Judicial Member) and Ms. Shreesha Merla (Technical Member), has held that Provident Fund and Gratuity dues have to be paid in full to the workmen/employees till the CIRP commencement date. The Bench held that the approved resolution plan violated Section 30(2) of IBC, by paying only 35.13% of the PF and Gratuity dues and thus treating the workmen/employees as Secured Creditors.

Section 9 IBC Application Not A Suit, Hence Bar U/S 69(2) Of Partnership Act Not Attracted: NCLAT Delhi

Case Title: Rourkela Steel Syndicate v Metistech Fabricators Pvt. Ltd.

Case No.: Company Appeal (AT)(Insolvency) No. 924 of 2022

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson) and Mr. Barun Mitra (Technical Member), has held that an application under Section 9 of IBC is not a suit and hence, the bar under Section 69(2) of Indian Partnership Act, 1932 is not applicable to a Section 9 application. The Bench relied on the Supreme Court judgment in B.K. Educational Services (P) Ltd. v. Parag Gupta and Associates, (2019 11 SCC 633), wherein it was held that Section 5 of Limitation Act, 1963 is fully applicable to applications under Section 7 & 9 of IBC. Since Section 5 of Limitation Act is not applicable to a suit, this indicates that applications under Section 7 & 9 are not a suit.

Liquidator Has No Jurisdiction To Reject/Modify Already Admitted Claims, Can Approach AA For Modification: NCLAT Delhi

Case Title: Vijay Kumar Gupta v Canara Bank

Case No.: Company Appeal (AT) (Ins.) No. 1015 of 2021

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench, comprising of Justice Rakesh Kumar Jain (Judicial Member) and Mr. Naresh Salecha (Technical Member), has held that the Liquidator has no jurisdiction to reject or modify already admitted claims, if he receives any additional information. The Liquidator can only approach the Adjudicating Authority for modification of the admitted claims.

Income Tax Dues Are Government Dues; Income Tax Authority Is A Secured Creditor: NCLAT Delhi

Case Title: Principal Commissioner of Income Tax & Anr. v M/s Assam Company India Ltd.

Case No.: Company Appeal (AT) (Insolvency) No. 243 of 2022.

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench, comprising of Justice Anant Bijay Singh (Judicial Member) and Mr. Barun Mitra (Technical Member), has held that the dues of the Income Tax dues are Government dues and Income Tax Authorities are a secured creditor. The Bench placed reliance on Supreme Court judgment in State Tax Officer v Rainbow Papers Limited, Civil Appeal No. 1661 of 2020, wherein it was held that, “the State is a secured creditor under the GVAT Act. Section 3(30) of the IBC defines secured creditor to mean a creditor in favour of whom security interest is credited. Such security interest could be created by operation of law. The definition of secured creditor in the IBC does not exclude any Government or Governmental Authority.”

NCLT

NCLT Mumbai Excludes Moratorium Period In Calculation Of Limitation

Case Title: Piramal Capital & Housing Finance Ltd. v Manpreet Developers Pvt. Ltd.

Case No.: CP (IB) No.700/MB-IV/2022

The National Company Law Tribunal (“NCLT”), Mumbai Bench, comprising of Shri Kishore Vemulapalli (Judicial Member) and Shri Manoj Kumar Dubey (Technical Member), has held that if an entity which itself was admitted into CIRP and has undergone moratorium, files an application under IBC, then the period of moratorium would be excluded while computing limitation of such application. The Bench has admitted an application under Section 7 of IBC filed by DHFL (taken over by Piramal) against a Corporate Debtor and has excluded the moratorium period undergone by DHFL while computing limitation of the application.

NCLT Ahmedabad Bench Re-Constituted W.E.F 15th FEBRUARY 2023

File No.: 10/03/2023-NCLT

The National Company Law Tribunal, Ahmedabad Bench, has been re-constituted vide a Circular dated 09.02.2023 issued by NCLT. Dr. Deepti Mukesh (Judicial Member) of NCLT Ahmedabad Bench (Court No. II) has demitted office on 14.02.2023 on completion of her tenure.

The re-constitution has been made in partial modification of orders of even number dated 03.03.2022 and is effective from 15.02.2023 until further orders. The re-constituted NCLT Ahmedabad Bench shall comprise of:

NCLT Ahmedabad, Court Room No. II (Second Half)

1. Shri M.B. Gosavi (Judicial Member)
2. Shri Ajai Das Mehrotra (Technical Member)

Shri M.B. Gosavi (Judicial Member) shall first take up the matters of NCLT Ahmedabad Court No. I and NCLT Indore, and then attend the matters before NCLT Ahmedabad Court No. II.

HIGH COURT

Borrowers Pays Full Compromise Amount: Allahabad High Court Directs Bank To Reconsider Wilful Default

Case Title: Konarkagro Polytech Pvt. Ltd. & Ors. v Bank Of Baroda & Ors. [WRIT - C No. - 35965 of 2022]

Citation: 2023 LiveLaw (AB) 59

The Allahabad High Court Bench, comprising of Justice Manoj Kumar Gupta and Justice Vikram D. Chauhan, has directed the Bank to re-consider its decision of declaring the Borrowers (Petitioners) as wilful defaulters, as a One Time Settlement (OTS) was subsequently entered between the Bank and Borrowers and full compromise amount has been towards the Petitioner Company’s accounts. The Bench also granted liberty to the Borrowers to avail legal remedy if the Bank’s decision on their representation is not favourable to them.