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IBC Cases Weekly Round Up: 13th...

IBC Cases Weekly Round Up: 13th October To 20th October 2024

Mohd Malik Chauhan

28 Oct 2024 11:09 AM IST

'Breaches Discipline Of Law Laid Down In IBC' : Supreme Court Disapproves Of HC Deferring CIRP Under Article 226

Case Title: CoC of KSK Mahanadi Power Company Ltd. v. Uttar Pradesh Power Corporation Ltd. and Ors.

Citation : 2024 LiveLaw (SC) 815

The Supreme Court recently took exception to the Telangana High Court ordering the deferring of the Corporate Insolvency Resolution Process in the exercise of powers under Article 226 of the Constitution.

The Bench of Chief Justice of India DY Chandrachud , Justice J.B. Pardiwala and Justice Manoj Misra, held that the High Court was not justified in deferring the Corporate Insolvency Resolution Process (CIRP) when the main relief sought in the writ petition uto consolidate the CIRP of two companies was refused.

High Court

All Claims Before Approval Of Resolution Plan Are Extinguished Once Plan Is Approved U/S 31 Of IBC: Orissa High Court

Case Title: Orissa Manganese & Minerals Ltd. v. State of Odisha and Ors.

Case Reference: W.P.(C) No. 1497 of 2024 with W.P. (C) No. 2304 of 2024 and W.P.(C) No. 2307 of 2024

The Orissa High Court Bench of Mr. Justice D.Dash and Mr. Justice V. Narasingh held that all liabilities of the corporate debtor prior to approval of resolution plan stand extinguished once the plan is approved under section 31 of the Insolvency and Bankruptcy Code (IBC). In this case, three writ petitions were filed against demand letters issued by the state (opposite parties) demanding statutory dues.

It was observed as under:

“No surprise claim should be flung on the Resolution Plan as the Resolution Plan provides the Corporate Debtor's business on a clean state to the successful Resolution Applicant. Further, the Resolution Applicant “should start with fresh slate on the basis of the Resolution Plan approved shunning its prior status as 'Corporate Debtor'.”

Bombay High Court Holds Redevelopment Rights of Society Not Part Of Moratorium Process; Issues Writ Of Mandamus For Redevelopment, Upholding Right to Shelter

Case Title: Kher Nagar Sukhsadan Co-operative Housing Society Ltd. v. State of Maharashtra & Ors.

Case Number: Writ Petition No. 3893 of 2024

The Bombay High Court division bench of Justices Kamal Khata and M.S. Sonak has held that if the developer fails to meet its obligations under the Development Agreement, such as paying transit rent and completing construction within the specified time frame, there is a complete failure of consideration, and no rights accrue to it. The court awarded a writ of mandamus for permissions and approvals for redevelopment. It observed that the uncertain outcome of a Corporate Insolvency Resolution Process (CIRP) shouldn't deprive individuals of their basic right to shelter.

Resolution Professional At S.94/95 Stage Cannot Decide On Maintainability Of Petition By Entering Into Merits: Karnataka High Court

Case Title: Buoyant Technology Constellations Pvt. Ltd. vs. Manyata Realty & Ors.

Case Reference: WRIT APPEAL NO.498 OF 2024 (GM-RES)

The Karnataka High Court Bench of Justice N.V. Anjaria and K.V. Aravind, held that the role of the Registrar while registering the application under Section 95 of the Insolvency and Bankruptcy Code (IBC) is not adjudicatory in nature and this duty of the Registrar, NCLT was in no way adjudicatory trapping. Application of judicial mind towards merits has no place in discharge of a ministerial or clerical function.

Bombay High Court Upholds Suspension Of Resolution Professional For Deficiency In Discharge Of Duties

Case Title: Vijendra Kumar Jain v. Insolvency & Bankruptcy Board of India (IBBI) & Anr.

Case Number: Writ Petition No. 12320 of 2024

The Bombay High Court bench of Justices A.S. Chandurkar and Rajesh S. Patil has upheld that the suspension order passed by the Disciplinary Committee of the Insolvency and Bankruptcy Board of India (IBBI) against the Resolution Professional (RP) for lack of due diligence in verifying the Resolution Plan and non-intimation of the claims of an operational creditor.

NCLAT

Petition U/S 95 Of IBC Not Maintainable If It Is Filed To Thwart Already Initiated Arbitral Proceedings: NCLAT New Delhi

Case Title: Neon Laboratories Ltd. v. Mayank Shah and Anr.

Case Reference: Comp. App. (AT) (Ins) No. 1622 of 2023 & I.A. No. 5860, 5861 and 5862 of 2023

The National Company Law Appellate Tribunal (NCLAT), Principal Bench, New Delhi, comprising Mr. Justice Rakesh Kumar Jain (Judicial Member) and Mr. Indevar Pandey (Technical Member), held that petition under section 95 of the Insolvency and Bankruptcy Code (IBC) cannot be maintained if it is filed merely to scuttle the proceedings already initiated under section 9 of the Arbitration and Conciliation Act. In this case, an appeal was filed against the decision of the NCLT wherein a petition under section 95 of the Insolvency and Bankruptcy Code (IBC) was dismissed.

Set Off / Counter Claim Can Be Allowed At CIRP Admission Stage U/S 9 Of IBC: NCLAT New Delhi

Case Title: Khushbu Dye Chem Pvt. Ltd. v. Chemical Suppliers India Pvt. Ltd.

Case Reference: Company Appeal (AT) (Insolvency) No. 664 of 2024

The National Company Law Appellate Tribunal (NCLAT), Principal Bench, New Delhi, comprising Mr. Justice Ashok Bhushan (Chairperson), Mr. Barun Mitra (Technical Member) and Mr. Arun Baroka (Technical Member), held that set off/Counter Claim can be claimed at the Corporate Insolvency Resolution Process (CIRP) admission stage. In this case, an appeal was filed against the decision of the NCLT wherein the petition under section 9 of the Insolvency and Bankruptcy Code (IBC) was dismissed.

Look-Back Period Can't Be Extended Beyond 2-Yr Limit U/S 43(4) Of IBC For Related-Party Transactions: NCLAT

Case Title: Sidharth Bharatbhushan Jain & Ors. vs. State Bank of India & Ors.

Case Number: COMPANY APPEAL (AT)(INS) NO. 242 OF 2024

The National Company Law Appellate Tribunal, Principal Bench, New Delhi comprising Justice Yogesh Khanna (Judicial Member) and Mr. Ajai Das Mehrotra (Technical Member) has held that section 43 of the Insolvency and Bankruptcy Code (IBC) does not allow the extension of the look-back period beyond 2 years for related-party transactions.

Application U/S 65 Of IBC Can Be Considered Even Before Admission Of Insolvency Petition: NCLAT New Delhi

Case Title: Devashree Developers Pvt. Ltd. and Ors. v. Aravali Cylinders Pvt. Ltd.

Case Reference: Comp. App. (AT) (Ins) No. 1406 of 2023 & I.A. No. 5032 of 2023 with Comp. App. (AT) (Ins) No. 1430 of 2023 & I.A. No. 5118, 5119 of 2023

The National Company Law Appellate Tribunal (NCLAT), Principal Bench, New Delhi, comprising Mr. Justice Rakesh Kumar Jain (Judicial Member), Mr. Naresh Salecha (Technical Member) and Mr. Indevar Pandey (Technical Member), held that an application under section 65 of the Insolvency and Bankruptcy Code (IBC) can be considered even before formal admission of the Corporate Insolvency Resolution Process (CIRP) petitions.

Unilateral Entries In Financial Records By Corporate Debtor To Make Counter Claim Cannot Be Considered: NCLAT New Delhi

Case Title: Mr. Kailash Motilal Kakrania and Anr. v. Apurva Oil and Industries Pvt. Ltd.

Case Reference: Company Appeal (AT) (Insolvency) No. 1257 of 2023 & I.A. No. 4433 of 2023

The National Company Law Appellate Tribunal (NCLAT), Principal Bench, New Delhi, comprising Mr. Justice Rakesh Kumar Jain (Judicial Member) and Shri Ajai Das Mehrotra (Technical Member), held that unilateral entries made in the financial records by the corporate debtor to make a counter claim cannot be considered. In this case, an appeal was filed against a decision of the NCLT in which a petition under section 7 of the Insolvency and Bankruptcy Code (IBC) was dismissed.

Assets Of Partnership Firm Not Property Of Personal Guarantor, Not Covered By Interim Moratorium Merely Because S.95 Application Was Filed: NCLAT New Delhi

Case Title: Ramesh Kumar Chugh v. Assets Care & Construction Enterprises Ltd.

Case Reference: Company Appeal (AT) (Insolvency) No. 1726 of 2024

The National Company Law Appellate Tribunal (NCLAT), Principal Bench, New Delhi, comprising Mr. Justice Ashok Bhushan (Chairperson), Mr. Barun Mitra (Technical Member) and Mr. Arun Baroka (Technical Member), held that the assets held in the name of the partnership firm is not the personal property of the personal guarantor and cannot be subjected to the provisions of interim moratorium merely because a Section 95 application has been filed against a partner of the firm in respect of a personal guarantee given for a party other than the partnership firm.

After Lapse Of Extended Period Of 90 Days Of Insolvency Commencement Date, RP Not Obliged To Accept Any Claim: NCLAT New Delhi

Case Title: Commissioner of Income Tax (TDS-1), Mumbai v. Mr. Sundaresh Bhat (RP)

Case Reference: Company Appeal (AT) (Insolvency) No. 575 of 2023

The National Company Law Appellate Tribunal (NCLAT), Principal Bench, New Delhi, comprising Mr. Justice Ashok Bhushan (Chairperson) and Mr. Barun Mitra (Technical Member), held that after the lapse of extended period of 90 days of the insolvency commencement date, the RP is not obliged to accept any claim. The tribunal further held that the provisions of Income Tax Act do not create any charge or security interest in favour of the Appellant or provides any foundational basis for the Income Tax Department to be a secured Creditor.

NCLAT Permits Participation Of Erstwhile Promoter In CIRP Despite CoC's Disqualification, Cites Relaxation U/S 29A Of IBC

Case: Meir Commodities India Pvt. Ltd. v. Narayanam Nageswara Rao & Ors

Filing Number: Company Appeal (AT) (CH) (INS) No. 206 / 2024 (IA Nos. 563, 564 & 565 / 2024)

The National Company Law Appellate Tribunal (NCLAT) presided by Justice Sharad Kumar Sharma, Member (Judicial) and Jatindranath Swain Member (Technical) dismissed an appeal filed by the Meir Commodities Pvt ltd, challenging the participation of promoter of NCS Sugar ltd in the Corporate Insolvency Resolution Process (CIRP).

The NCLAT upheld the decision of High Court of Telangana and state the respondent should not be termed as “wilful defaulter” and should be allowed to participate in the Resolution process. Also, the Respondent had previously engaged in negotiations with the CoC and the RP and had also revised his plan. Therefore, he had the right to challenge the procedure of application.

Litigant Who Does Not Apply For Certified Copy Cannot Claim Benefit Of Limitation Period If Delay Is Caused Due To Receipt Of Free Copy Of NCLT Order : NCLAT New Delhi

Case Title: Shakir v. Fruitful Buildcon Pvt. Ltd

Case Reference: Comp. App. (AT) (Ins) No. 1893 of 2024 & I.A. No. 6999 of 2024

The National Company Law Appellate Tribunal, Principal Bench, New Delhi, comprising Justice Ashok Bhushan (Chairperson) Barun Mitra (Technical Member) Arun Baroka (Technical Member), held that the litigant who does not apply for the certified copy cannot then fall back and claim that he was awaiting the grant of the free copy to obviate the bar of limitation. The limitation for filing the appeal commences from the date of order is pronounced and litigant has to be vigilant in applying the certified copy of the order.

NCLAT Delhi Closes CIRP Against Jaypee Healthcare Ltd After Full Settlement Of Financial Creditors' Claims

Case Title: Jaypee Infratech Ltd. v. Jaypee Healthcare Ltd. & Ors.

Case Number: Company Appeal (AT) (Insolvency) Nos. 1301, 1186, and 1296 of 2024

The National Company Law Appellate Tribunal (NCLAT), New Delhi bench comprising Justice Ashok Bhushan (Chairperson), Barun Mitra (Technical Member), and Arun Baroka (Technical Member) has set aside the Corporate Insolvency Resolution Process (CIRP) initiated against Jaypee Healthcare Limited after the settlement amount was disbursed to financial creditors.

Any Claims Assessed After Liquidation Commencement Date Cannot Be Accepted By Liquidator: NCLAT New Delhi

Case Title: Assistance Provident Fund Commissioner (Legal), EPFO v. Chandra Prakash Jain (Liquidator)

Case Reference: Company Appeal (AT) (Insolvency) No. 1743 of 2024

The National Company Law Appellate Tribunal (NCLAT), Principal Bench, New Delhi, comprising Mr. Justice Ashok Bhushan (Chairperson), Mr. Barun Mitra (Technical Member) and Mr. Arun Baroka (Technical Member), held that when the claim has to be filed on the liquidation commencement date any claims subsequent including any on the basis of assessment subsequent to the liquidation commencement date cannot be given any credence by the liquidator.

NCLT

Raising Funds Through Share Subscription-Cum-Shareholders Agreement Is Financial Debt, Plea U/S 7 Of IBC Maintainable: NCLT

Case Title: Spectrum Trimpex Pvt. Ltd. v. VPhrase Analytics Solutions Pvt. Ltd.

Case Reference: CP (IB) 249/MB/2024

The National Company Law Tribunal (NCLT), Mumbai Bench, comprising Shri Kuldip Kumar Kareer (Judicial Member) and Shri Anil Raj Chellan (Technical Member), held that money raised through a share and subscription agreement in which an exit window with stipulated return is provided will constitute a financial debt for which a petition under section 7 of the Insolvency and Bankruptcy Code (IBC) can be filed. However, in this case, the petition was dismissed as debt amount failed to meet the threshold limit provided under section 4 of the IBC.

Order U/S 45A Of ESI Act Cannot Be Passed During Moratorium Period U/S 14 Of IBC: NCLT Allahabad

Case Title: Saurabh Chawla v. Employee State Insurance Corporation

Case Reference: IA No. 438/2023 in CP (IB) No. 81/ALD/2019

The National Company Law Tribunal, Allahabad Bench, comprising Shri Praveen Kumar Gupta (Judicial Member) and Shri Ashish Kumar Verma (Technical Member), held that proceedings under ESI Act cannot be initiated after admission of the corporate debtor into insolvency. In this case, an order passed by ESI authority was challenged by Resolution Professional (RP) in which the authority claimed unpaid contribution towards state insurance.

Authorised Officer Of Financial Creditor Can Also File Petition U/S 7 Of IBC: NCLT Mumbai

Case Title: Avendus Finance Private Limited v. Acute Retail Infra Private Limited

Case Reference: C.P. (IB)/913(MB)2023

The National Company Law Tribunal (NCLT), Mumbai Bench, Court V, comprising Ms. Reeta Kohli, Hon'ble Member (Judicial) Ms. Madhu Sinha, Hon'ble Member (Technical), held that general authorization given to an officer of the Financial Creditor by means of a power of attorney, would not disentitle such officer to act as the authorized representative of the Financial Creditor while filing an application under Section 7 of the Insolvency and Bankruptcy Code (IBC). In this case, a petition under section 7 of the IBC was filed.

Non-Obtaining Of NOC From Applicant Does Not Ipso Facto Invalidate Security Documents Executed In Favour Of Respondents: NCLT Mumbai

Case Title: Bank of Baroda v. Mr. Ajit Kumar and Ors.

Case Reference: IA No. 3/2024 ,CP (IB) 1738/MB/ of 2017

The National Company Law Tribunal, Mumbai Bench, comprising Anil Raj Chellan Kuldip Kumar Kareer (Member Technical) (Member Judicial), held that non-obtaining of NOC from the Applicant does not ipso facto invalidate the security documents executed in favour of Respondents.

Right To Replace Resolution Professional Not Provided To Operational Creditor, Only CoC Can Replace RP: NCLT Chennai

Case Title: Giriraj Enterprises v. State Bank of India and Anr.

Case Reference: IA/1693/2024 IN IA(IBC)/1512/CHE/2024 IN IBA NO.1099 OF 2019

The National Company Law Tribunal (NCLT), Chennai Bench, comprising Ravichandran Ramasamy, Jyoti Kumar Tripthi, Member Technical Member (Judicial) ,held that on reading of section 27 of the Insolvency and Bankruptcy Code (IBC), it is clear that the right of replacement of RP is not provided to the operational creditor and necessary party required for adjudication will be heard in lines of Principle of Natural justice.

IBC Cases Weekly Round Up: 13th October To 20th October 2024

Mohd Malik Chauhan

The National Company Law Tribunal, Mumbai Bench, comprising Anil Raj Chellan Kuldip Kumar Kareer (Member Technical) (Member Judicial), held that non-obtaining of NOC from the Applicant does not ipso facto invalidate the security documents executed in favour of Respondents.

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