IBC | When Matter Heard But No Order Pronounced On The Same Day, Limitation To Commence From The Date When Order Gets Uploaded: Supreme Court

Case Title: Sanjay Pandurang Kalate v Vistra ITCL (India) Limited and Others

Case No.: Civil Appeal Nos 7467-7468 of 2023

The Supreme Court bench comprising Chief Justice of India Dr Dhananjaya Y Chandrachud, Justice J B Pardiwala and Justice Manoj Misra, has held that when the NCLT hears a matter on a particular date but does not pronounce the order on the same date, then the limitation for filing an appeal from such order before the NCLAT under Section 61 of the Insolvency and Bankruptcy Code, 2016 (“IBC”), would commence from the date when the Order of NCLT gets uploaded.

However, in cases where matter was heard and order was pronounced on the same day by the NCLT, limitation would commence from the date of pronouncement of order and not its upload.

The NCLT heard a matter on 17.05.2023 but no order was pronounced or passed. The order was uploaded on 30.05.2023. The Appellant filed an appeal against the NCLT order. before NCLAT The issue was whether limitation under Section 61(2) of IBC would commence from 17.05.2023 or 30.05.2023.

The bench while differentiating between 'hearing' of a case and 'pronouncement' of order in view of NCLT Rules 2016, and has held that the time for filing an appeal would commence only when the order appealed from was uploaded, since prior to that date no order was pronounced.

IBC | When Matter Heard On A Particular Date But Order Pronounced Later, NCLT Not To Affix Date Of Hearing On Order: Supreme Court

Case Title: Sanjay Pandurang Kalate v Vistra ITCL (India) Limited and Others

Case No.: Civil Appeal Nos 7467-7468 of 2023

The Supreme Court bench comprising Chief Justice of India Dr Dhananjaya Y Chandrachud, Justice J B Pardiwala and Justice Manoj Misra, has held that when a matter is heard by the NCLT on a particular date but the order is pronounced on another date, then NCLT must refrain from affixing the date of hearing on the order. The requirement of pronouncement of order cannot be dispensed with, since under the NCLT Rules, 2016 there is a distinction between 'hearing' and 'pronouncement'.

The NCLT heard a matter on 17.05.2023 but no order was pronounced. The order was uploaded on 30.05.2023. The Appellant filed an appeal against the NCLT order before NCLAT under Section 61(2) of the Insolvency and Bankruptcy Code, 2016 (“IBC”), The issue was whether limitation under Section 61(2) of IBC would commence from 17.05.2023 or 30.05.2023.

The bench observed that,“To avoid situations such as these, in cases where the matter has been heard on a particular day but the order is pronounced on a later date, the NCLT must refrain from affixing the date of hearing on the order. Such an approach would be a violation of the NCLT Rules, which create a distinction between hearing and pronouncement and do not allow the NCLT to dispense with the requirement of pronouncement.”

The Bench has also appreciated the NCLAT Chairperson, Members and Registry for taking pro-active steps towards the observations made in Sanket Kumar Agarwal v. APG Logistics Private Limited, 2023 LiveLaw (SC) 406, wherein it was observed that filing of physical copies is not mandatory when e-filing has been done. “Such proactive action by tribunals is essential to ensure that the move towards a modernized and technology-friendly judiciary trickles down to every judicial forum across the country.”

Sec 240A IBC | Even If MSME Registration Obtained Post Commencement Of CIRP, Promoter Eligible To Submit Resolution Plan: Supreme Court

Case Title: Hari Babu Thota

Citation: 2023 LiveLaw (SC) 1051

The Supreme Court bench comprising Justice Sanjay Kishan Kaul and Justice Sudhanshu Dhulia, has held that the Promoter of a Corporate Debtor is eligible to submit a resolution plan in terms of Section 240A of the Insolvency and Bankruptcy Code, 2016 (“IBC”), even if the Corporate Debtor was registered as Micro Small Medium Enterprise (“MSME”) after commencement of Corporate Insolvency Resolution Process (“CIRP”).

The Bench has set aside an order passed by the National Company Law Appellate Tribunal (“NCLAT”), wherein the Promoter of a MSME Corporate Debtor was declared ineligible to submit a plan on the premise that the MSME certificate was obtained post commencement of CIRP.

IBC | Cut-Off Date To Determine Resolution Applicant's Eligibility Under S.240A Is Date Of Submitting Resolution Plan: Supreme Court

Case Title: Hari Babu Thota v. Other

Citation: 2023 LiveLaw (SC) 1051

The Supreme Court bench comprising Justice Sanjay Kishan Kaul and Justice Sudhanshu Dhulia, has held that for the purpose of Section 240A of Insolvency and Bankruptcy Code, 2016 (“IBC”), the cut-off date to determine the eligibility of a resolution applicant to submit a resolution plan, is the date on which the resolution plan was submitted and not the date on which Corporate Insolvency Resolution Process (“CIRP”) commenced.

The Bench has set aside an order passed by the National Company Law Appellate Tribunal (“NCLAT”), wherein the Promoter of a MSME Corporate Debtor was declared ineligible to submit a plan on the premise that the MSME certificate was obtained post commencement of CIRP, by relying on the ratio in Digamber Anand Rao Pingle v Shrikant Madanlal Zawar & Ors., Comp. App. (AT) (Ins.) No.43-43A/2021.

NCLAT

NCLAT New Delhi: Workers' Claim Through Sub-Contractor Can't Be Treated On Par With Corporate Debtor's Workmen

Case Title: Amit Kumar Pandey & Ors. vs. Pardeep Kumar Sethi, Resolution Professional (JMT Auto Ltd.) and Ors.

Case No.: Company Appeal (AT) (Insolvency) No. 1364 of 2023

The National Company Law Appellate Tribunal ('NCLAT'), New Delhi Bench, comprising Justice Ashok Bhushan (Chairperson), Barun Mitra (Technical Member), and Arun Baroka (Technical Member), held that the Claim of workers employed through sub-contractor filed through sub-contractor as Operational Debt cannot be treated as workmen of Corporate Debtor.

NCLT

NCLT New Delhi: Date Of Default Or Pleadings Can Be Amended At Any Stage Of The Matter Under IBC

Case Title: Piramal Enterprises Ltd. v. Kay Jay Leasing

Case No.: IA-1547/2023 in IB-359(ND)/2021

The National Company Law Tribunal (NCLT), New Delhi Bench, comprising of Shri Bachu Venkat Balaram Das (Judicial Member) and Shri Atul Chaturvedi (Technical Member), has allowed the application of the Applicant for amendment of the date of default and held that the amendment of pleadings (including date of default) in a Corporate Insolvency Resolution Process (CIRP) application filed under Section 7 of IBC can be done at any stage of the matter.

For Deciding Preliminary Issue Of Maintainability In Section 9 Petition, Not Necessary To Seek Written Response From Corporate Debtor: NCLT Delhi

Case title: Willis Lease Finance Corporation v Spicejet Ltd.

Case No.: IB NO. 249/(ND)/2023

The National Company Law Tribunal (“NCLT”), New Delhi Bench, comprising of Shri Mahendra Khandelwal (Judicial Member) and Shri Rahul Bhatnagar (Technical Member), has held that it is not necessary to seek written response of the Corporate Debtor at the stage of deciding maintainability of petition under Section 9 of IBC.

“However, in this regard, this Adjudicating Authority is of the view that, this application is being analyzed on a prima facie issue, i.e. on the issue of maintainability of Section 9 petition. The Civil Procedure Code in its strict sense is not applicable under the present case and only the principle underlying therein may be applied wherever necessary. However, for the limited purpose of deciding preliminary issue of maintainability, no fruitful purpose would be served, by seeking written response, from the Corporate Debtor, when the application is at the stage of maintainability, i.e. whether the Applicant, is an Operational Creditor under the provisions of IBC or not”, the Bench held.

In Absence Of Privity Of Contract, Servicer Of Aircraft Lessors Has No Locus Standi To File Insolvency Proceedings Against SpiceJet: NCLT Delhi

Case title: Willis Lease Finance Corporation v Spicejet Ltd.

Case No.: IB NO. 249/(ND)/2023

The National Company Law Tribunal (“NCLT”), New Delhi Bench, comprising of Shri Mahendra Khandelwal (Judicial Member) and Shri Rahul Bhatnagar (Technical Member), has held that a Servicer of Aircraft Lessors, who is neither a party in Aircraft Lease Agreements nor the issuer of invoices, has no locus standi to seek initiation of insolvency proceedings against Spicejet Ltd. in the capacity of an Operational Creditor.

The Bench has dismissed a petition filed under Section 9 of IBC by Willis Lease Finance Corporation, seeking initiation of Corporate Insolvency Resolution Process (“CIRP”) against Spicejet Ltd. for the amounts due to the Aircraft Lessors.

NCLT Kolkata: Debt Arising From Foreign Arbitral Awards Can't Be Considered Financial Debt, But Can Be Treated As “Other Debts”

Case Title: Rishima SA Investments LLC (Mauritius) vs Avishek Gupta

Case No.: I.A. (IB) No. 1131/KB/2022

The National Company Law Tribunal (“NCLT”), Kolkata Bench, comprising Smt. Bidisha Banerjee (Judicial Member) and Shri Arvind Devanathan (Technical Member), has held that the debt arising out of foreign arbitral awards cannot be considered as Financial Debt, however, it can be treated as “Other Debts”. The Bench further observed that since the claim has reached finality in the view of the decree of competent foreign arbitral forums and only the execution is pending before the High Court, the claim should be admitted in full, and provision should have been made from the Resolution Plan value.

NCLT Mumbai: Insufficiently Stamped Assignment Deed Transferring Loan To Corporate Debtor Is Void And No CIRP Can Be Initiated Under IBC

Case Title: Vinsari Fruitech Ltd. vs. Effort BPO Pvt. Ltd.

Case No.: CP (IB) No. 330/MB/2023

The National Company Law Tribunal ('NCLT'), Mumbai Bench, comprising of Justice V.G. Bisht (Retd.) (Judicial Member) and Mr. Prabhat Kumar (Technical Member), has held that the Transfer of loan from Principal Borrower to Corporate Debtor through assignment agreement, which is not stamped, is a void contract and CIRP under Section 7 of IBC cannot be initiated against such Corporate Debtor.

NCLT Mumbai: No Bar On Clubbing Multiple Purchase In A Single CIRP Petition Under IBC

Case Title: MM Aqua Technologies Ltd. vs. Clean Flow Cooling Tower Solutions Pvt. Ltd.

Case No.: C.P. (I.B) No. 861/MB/2022

The National Company Law Tribunal (NCLT), Mumbai Bench, comprising of Ms. Reeta Kohli (Judicial Member) and Ms. Madhu Sinha (Technical Member) held that Multiple Purchase Orders can be clubbed in a single Corporate Insolvency Resolution Process ('CIRP') application under Section 9 of IBC and the same is maintainable.

CCI

CCI Closes Complaint Against Survey Of India: Procurer Free To Prescribe Technical Conditions Under Tender

Case Title: XYZ (Confidential) And Surveyor General of India, Survey of India

Case No.: Case No. 24 of 2023

The Competition Commission of India ('CCI') comprising Ms. Ravneet Kaur (Chairperson), Mr. Anil Agrawal (Member), Ms. Sweta Kakkad (Member), and Mr. Deepak Anurag (Member), has closed the complaint against Surveyor General of India, Survey of India ('OP-1') and Technical Committee for Purchase of Plotter, Survey of India ('OP-2'). The complaint was filed alleging contravention of the provisions of Section 3 of the Competition Act, 2002 ('Act') while procuring LED Plotters with Folders, by the Survey of India, Department of Science and Technology ('SoI').

The CCI held that technical criteria or conditions within the tender documentation can be prescribed by the procurer as per its particular need.