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IBC Monthly Digest: November 2024

IBC Monthly Digest: November 2024

Mohd Malik Chauhan

4 Dec 2024 10:41 AM IST

Mr. Babu Manoharan Jaikumar Christhurajan V Mr. Umesh Garg & 2 Ors, Company Appeal (AT) (CH) (Ins) No.358/2022

Meenakshi and Kushal Goyal Versus Amit Agarwal and Ors., Company Appeal (AT) (Insolvency) No. 1022 of 2024

Clarion Health Food LLP Versus Goli Vada Pav Pvt. Ltd. and Anr., Company Appeal (AT) (Ins.) No. 1522 of 2023

Praveen Arya & Ors. Versus Anju Aggarwal (RP of Corporate Debtor ) & Anr, Company Appeal (AT) (Insolvency) No. 40 of 2024 With Company Appeal (AT) (Insolvency) No.45 of 2024 & Interlocutory Application No.140 of 2024

Getz Cables Private Limited Versus State Bank of India and Anr., Company Appeal (AT) (Insolvency) No.1953 of 2024

CA Ramasamy Shanmuggam, Liquidator of RLS Alloys Pvt. Ltd. Vs Insolvency and Bankruptcy Board of India, Company Appeal (AT) (CH) (Ins) No.413/2022

Raghavendra Joshi Residing Versus Indian Bank and Anr., I.A. No. 2247/2023 IN C.P. NO. 575(IB)/MB/2022

Bank of India vs. GF Toll Road Private Limited, CP (IB)/83 (MB)/2024 and CP (IB)/120 (MB)/2024

Supreme Court

'IBC Prevails Over SEZ Act', Supreme Court Rejects Noida SEZ's Claim

Case Title: Noida Special Economic Zone Authority Vs. Manish Agarwal & Ors., CIVIL APPEAL NOS. 5918-5919 OF 2022

Citation : 2024 LiveLaw (SC) 858

The Supreme Court dismissed the Noida Special Economic Zone's (NSEZ) plea challenging the NCLAT's decision to approve a resolution plan that granted Rs. 50 Lacs against NSEZ's admitted claim of about Rs. 6 Crore.

The NCLAT reduced the claim amount, partly due to penalties related to the renewal of the sub-lease and transfer charges.

The bench comprising Justices Abhay S. Oka and Augustine George Masih ruled that the Insolvency and Bankruptcy Code (IBC) prevails over the SEZ Act due to Section 238 of IBC's overriding effect, rejecting NSEZ's argument for exemptions from such payments.

Supreme Court Orders Liquidation Of Jet Airways On Failure Of Resolution Plan

Case Details : STATE BANK OF INDIA AND ORS. Versus THE CONSORTIUM OF MR. MURARI LAL JALAN AND MR. FLORIAN FRITSCH AND ANR.| C.A. No. 5023-5024/2024 and Connected

Citation : 2024 LiveLaw (SC) 866

The Supreme Court invoked its extraordinary powers under Article 142 of the Constitution to order the liquidation of Jet Airways in view of the "peculiar and alarming" circumstance that the resolution plan has not been implemented for five years.

The Court set aside the NCLAT Order which allowed the cash-strapped Jet Airways' ownership transfer to the Successful Resolution Applicant (SRA) without complete payment in accordance with the resolution plan.

'No Political Appointments' : Supreme Court Decries Poor Functioning Of NCLTs/NCLAT, Says Members Often Lack Domain Knowledge

Case Details : STATE BANK OF INDIA AND ORS. Versus THE CONSORTIUM OF MR. MURARI LAL JALAN AND MR. FLORIAN FRITSCH AND ANR.| C.A. No. 5023-5024/2024 and Connected

Citation : 2024 LiveLaw (SC) 866

In the judgment ordering the liquidation of Jet Airways, the Supreme Court made several critical remarks against the abysmal functioning of the National Company Law Tribunals and the National Company Law Appellate Tribunal benches.

Slamming the "growing tendency" of the NCLT and NCLAT members to ignore the orders of the Supreme Court, the Court stated that only persons of impeccable integrity should be appointed as the Tribunal Members. There should be no political appointment, the Court categorically stated.

High Court

Asset Deposited By Corporate Debtor As Security Before CIRP Commencement Continues To Be Asset Of Corporate Debtor: Bombay High Court

Case Title: Siti Networks Ltd. vs. Rajiv Suri (INTERIM APPLICATION (LODG.) NO. 31055 OF 2024 IN APPEAL NO. 597 OF 2016 IN SUIT NO. 2295 OF 2002)

Citation: 2024 LiveLaw (Bom) 600

The Bombay High Court bench of Justices B.P. Colabawalla and Somasekhar Sundaresan has held that monies or any other asset deposited by a corporate debtor in court prior to commencement of CIRP by way of security would continue to be the asset of the corporate debtor.

The court observed that the moratorium on the enforcement of a claim for execution of a decree has commenced, and upon failure of the CIRP, the asset would form part of the liquidation estate. As stated in Byju, the asset is intended to be distributed to creditors in proportion to what is owed to them, and one creditor cannot gain an advantage over the others by being paid out, particularly outside of the CIRP or liquidation.

NCLAT

Settlement Plan U/S 12A Of IBC Cannot Be Considered By CoC After Approval Of Resolution Plan: NCLAT

Case Title: Pratham Expofab Private Limited v. Mr. Anil Matta, Resolution Professional and Ors.

Citation: Company Appeal (AT) (Insolvency) No. 1803 of 2024

The NCLAT New Delhi Bench of Justices Ashok Bhushan and Barun Mitra affirmed that a settlement proposal under Section 12A of the IBC cannot be put before the CoC after the CoC has approved the resolution plan. The tribunal further observed that with the approval of the resolution plan by the CoC, the plan becomes inter se binding between the CoC and the SRA and hence no settlement proposal of the suspended management can be considered thereafter.

Recall Notice Issued During Cut-Off Period U/S 10A Of IBC Doesn't Alter Date Of Default If Default Occurred Before Cut-Off Period: NCLAT

Case Title: Sandip Narendrakumar Patel (Promotor/ExDirector) Yours Ethnic Foods Pvt. Ltd. vs. Svakarma Finance Pvt. Ltd. & Anr.

Case Number: Comp. App. (AT) (Ins) No. 1419 of 2023

The National Company Law Appellate Tribunal (NCLAT), New Delhi bench of Justice Rakesh Kumar Jain (Judicial Member), Mr. Naresh Salecha (Technical Member) and Mr. Indevar Pandey (Technical Member) has held that the issuance of a recall notice during the cut off period specified under Section 10A (i.e. from 25.03.2020 to 25.03.2021) does not defer the date of default if the default occurred before 25.03.2020. The Tribunal noted that the recall notice issued during the cut off period was a procedural step that had no bearing on the initial default date because the default occurred well before the cut-off period. The Tribunal held that the application under section 7 of the Insolvency & Bankruptcy Code (IBC) was not hit by section 10A.

IBC Shall Prevail Over TRAI Act, Any Penalty Imposed By TRAI To Be Recovered As Per Scheme Of IBC: NCLAT

Case Title: Telecom Regulatory Authority of India v. Reliance Communication Ltd. & Ors.

Case Reference: Company Appeal (AT) (Insolvency) No.355 of 2024

The NCLAT New Delhi Bench of Justices Ashok Bhushan (Chairperson), Barun Mitra and Arun Baroka held that the IBC being a special statute and having a non-obstante clause under section 238 of the IBC shall prevail over the TRAI Act therefore any penalty imposed by the TRAI on the corporate debtor would be recovered as per the scheme of the IBC. No special treatment can be given to the TRAI over other creditors of the corporate debtor.

When Repayment Plan Is Not Submitted, Creditors Are Entitled To File Application For Bankruptcy Against Debtor U/S 121 Of IBC: NCLAT

Case Title: SUDIP DUTTA @ SUDIP BIJOY DUTTA v. PRASHANT JAIN

Case Reference: Company Appeal (AT) (Insolvency) No. 1494 of 2024 & I.A. No. 5389 of 2024

The NCLAT New Delhi Bench of Justices Ashok Bhushan (Chairperson), Barun Mitra (Technical Member) and Arun Baroka (Technical Member) held that the creditors are entitled to file a Bankrupcty Application under section 121 of the IBC if no repayment plan as per section 106 of the IBC is submitted or if submitted but rejected by the Adjudicating Authority under section 115 of the IBC.

Resolution Professional Has Authority To Determine Creditor's Related Party Status: NCLAT

Case Title: Hari Vitthal Mission vs. Ravi Sethia & Ors.

Case Number: Company Appeal (Ins) No. 1206 of 2022 & I.A. No. 3657, 3658, 3659 of 2022 & 4766 of 2023

The NCLAT bench of Justice Rakesh Kumar Jain (Judicial Member), Mr. Naresh Salecha (Technical Member) and Mr. Indevar Pandey (Technical Member) has held that the Resolution Professional (RP) has the authority to determine the related party status of a creditor. The Tribunal also held that In all cases where the Corporate Debtor is controlled by a trust, the trust would fall under the category of a related party in section 5(24)(h) and (j) of the Insolvency and Bankruptcy Code, 2016 (IBC).

Petition U/S 7 Of IBC Is Maintainable For Default Which Occurred Post Consent Decree: NCLAT

Case Title: JUBIN KISHORE THAKKAR V. PHOENIX ARC PRIVATE LIMITED

Case Reference: Company Appeal (AT) (Insolvency) No. 1931 of 2024

The NLCAT New Delhi bench of Justices Ashok Bhushan (Chairperson), Barun Mitra (Technical Member) and Arun Baroka (Technical Member) affirmed that a final judgment and/or decree of any Court or Tribunal or any Arbitral Award for payment of money, if not satisfied, would fall within the ambit of a financial debt for which the creditor is entitled to initiate proceedings under Section 7 of the IBC. In this case, the consent decree was passed in which the corporate debtor was directed to pay the debts but the corporate debtor defaulted.

Condonation Of Delay Is Case Specific, No Inflexible Rule Can Be Laid Down To Condone Delay U/S 61 Of IBC: NCLAT

Case Title: Dhiren Shantilal Shah RP of High Ground Enterprise Ltd. v. Swastik Productions Pvt. Ltd

Case Reference: Company Appeal (AT) (Insolvency) No. 360 of 2024 & Interlocutory Application Nos.1223 of 2024

The NLCAT New Delhi bench of Justice Ashok Bhushan (Chairperson), Barun Mitra (Technical Member) and Arun Baroka (Technical Member) affirmed that the condonation of delay in filing of the Appeal is on facts of each case, no inflexible rule can be laid down while exercising jurisdiction to condone the delay. In Appeals filed under section 61 the IBC, the jurisdiction of the Tribunal to condone the delay in filing of the Appeal after expiry of the limitation period, is only 15 days, which jurisdiction can be exercised.

Once Pre-Existing Dispute With Regard To Operational Debt Is Established, Petition U/S 9 Of IBC Cannot Be Admitted: NCLAT

Case Title: Sandeep Behl v. Nirmal Trading Company and Ors.

Case Reference: Company Appeal (AT) (Insolvency) No. 36 of 2024

The NLCAT New Delhi bench of Justice Ashok Bhushan (Chairperson), Barun Mitra (Technical Member) affirmed that in Section 9 proceeding, there is no need to enter into final adjudication with regard to existence of dispute between the parties regarding operational debt. If the existence of a dispute prior to filing of an insolvency petition is established and the defence raised is not moonshine, spurious, hypothetical or illusory. For such disputed operational debt, Section 9 proceeding under IBC cannot be initiated at the behest of the Operational Creditor.

Security Deposit In Lease Agreement If Repayable Without Any Interest Cannot Be Classified As Financial Debt U/S 5(8) Of IBC: NCLAT

Case Title: COROB INDIA PVT. LTD. v. MR. BIRENDRA KUMAR AGRAWAL and Anr.

Case Reference: Company Appeal (AT) (Insolvency) No. 749 of 2024

The NLCAT New Delhi bench of Justice Ashok Bhushan (Chairperson), Barun Mitra (Technical Member) held that security deposit given, while entering into a lease agreement cannot be classified as financial debt under section 5(8) of the IBC when it had been advanced with a condition that it would be returned without any interest once the possession of the leased premise is handed over.

Liquidator's Reliance On Transaction Audit Report Sufficient To File Application For Avoidance Of Preferential Transactions U/S 43 Of IBC: NCLAT

Case Title: Alok Tripathi, Suspended Director v. Mohit K Gupta, Liquidator

Case Reference: Company Appeal (AT) (Insolvency) No. 1817 of 2024

The NLCAT New Delhi bench of Justices Ashok Bhushan (Chairperson), Barun Mitra (Technical Member) and Arun Baroka (Technical Member) held that when the Liquidator has got a Transaction Audit Report done and on the basis of which has come to a conclusion that this is a preferential transaction, it cannot be said that he has not formed an independent opinion before filing an application for avoidance of preferential transactions under section 43 of the IBC.

Filing Petition U/S 94 Of IBC By Guarantor Through RP Does Not Preclude Financial Creditors From Seeking Replacement Of RP: NCLAT

Case Title: Mr. Vinay Rai (Personal Guarantor) v. Technology Development Board and Ors.

Case Reference: Company Appeal (AT) (Insolvency) No. 1891 of 2024

The NLCAT New Delhi bench of Justices Ashok Bhushan (Chairperson), Barun Mitra (Technical Member) and Arun Baroka (Technical Member) held that financial creditors are entitled to file an application seeking replacement of the Resolution Professional under section 98 of the IBC if they are of the opinion that the RP would not work in an independent manner or has association with other parties to the litigation. The fact that personal guarantor has a vested right to initiate insolvency resolution process under section 94 of the IBC does not preclude the financial creditor from filing the application under section 98 seeking replacement of the RP.

Adjudicating Authority Cannot Enter Into Merits At S. 95 Application Stage Before Report Of RP Is Submitted U/S 99 Of IBC: NCLAT

Case Title:Central Bank of India Versus Deepen Arun Parekh

Case Reference: Company Appeal (AT) (Insolvency) No. 697 of 2024

The NLCAT New Delhi bench of Justice Ashok Bhushan (Chairperson), Barun Mitra (Technical Member) and Arun Baroka (Technical Member) affirmed that Adjudicating Authority cannot exercise its adjudicatory power at the stage of consideration of application under section 95 of the IBC by entering into the merits of the case. The power which is conferred on the adjudicating authority at this stage is to appoint a resolution professional. The Adjudicatory role comes into play when a report is submitted by the Resolution Professional under section 99 recommending either to admit or reject the application.

Directors Of Financial Creditors Not Disqualified From Filing Plea U/S 7 Of IBC Due To Sister Company's Default U/S 248 Of Companies Act: NCLAT

Case Title: CADILLAC INFOTECH PVT. LTD.Versus JKM INFRASTRUCTURE PVT. LTD and Ors.

Case Reference: Company Appeal (AT) (Insolvency) No. 1610 of 2024 & I.A. No. 5879 of 2024

The NLCAT New Delhi bench of Justice Ashok Bhushan (Chairperson) and Barun Mitra (Technical Member) held that directors of the financial creditors are not disqualified from filing a petition under section 7 of the IBC merely on the ground that sister company of the financial creditors in which they were holding the same position, defaulted under section 248 of the Companies Act in failing to continue its business for continuous period of 2 years. The default under section 164(2) of the Companies Act has to be proved to disqualify them from acting as the directors in other companies than which is in default.

Any Amount Proposed In Settlement Plan U/S 12A Of IBC Cannot Be Refunded If Plan Is Approved: NCLAT

Case Title: Globomet Engineering Private Limited Versus Shri Tejas J Parikh and Ors.

Case Reference: Company Appeal (AT) (Insolvency) No. 1080 of 2022

The NLCAT New Delhi bench of Justice Ashok Bhushan (Chairperson), Barun Mitra (Technical Member) and Arun Baroka (Technical Member) held that any amount proposed in the settlement plan under section 12A of the IBC cannot be refunded if the plan is later approved and the CIRP is closed. In this case, a settlement plan was proposed by the appellant in which 3 crores rupees was proposed to be given to the financial creditors. This plan was later approved.

Corporate Debtor's Property Cannot Be Recovered By Owner/Lessor During Moratorium Period U/S 14 Of IBC: NCLAT

Case Title: Chandrakant Khemka Versus Santanu Bhattacharjee and Ors.

Case Reference: Company Appeal (AT) (Ins.) No. 1064 of 2023

The NCLAT New Delhi bench of Justice Rakesh Kumar Jain (Judicial Member), Mr. Naresh Salecha (Technical Member) and Mr. Indevar Pandey (Technical Member) affirmed that properties occupied by the corporate debtor cannot be recovered by owner/lessor during the moratorium period under section 14 of the IBC. In this case, the NCLT had handed over the possession of the property of the CD to the respondents on the submission of RP that the property was no longer required. This submission of the RP was not backed by the decision of the CoC.
In Absence Of Pre-Existing Dispute, Petition U/S 9 Of IBC Must Be Admitted If Debt And Default Are Proved: NCLAT

Case Title: SURENDRA SANCHETI Versus GOSPELL DIGITAL TECHNOLOGIES CO. LIMITED and Ors.

Case Reference: Company Appeal (AT) (Insolvency) No. 583 of 2024

The NLCAT New Delhi bench of Justice Ashok Bhushan (Chairperson) and Barun Mitra (Technical Member) affirmed that once it is established that the corporate debtor has defaulted in the payment of operational debt which amount had clearly become due and payable above the threshold limit, and further if there is no credible or plausible evidence to show the existence of pre-existing dispute, application under section 9 must be admitted by the Adjudicating Authority.

Sale Of Corporate Debtor As Going Concern Under Liquidation Regulations Takes Precedence Over Scheme Of Compromise U/S 230: NCLAT

Case Title: Narottamka Trade & Vyapaar Pvt. Ltd., V SPP Insolvency Professionals LLP and Anr.

Case Reference: Company Appeal (AT) (CH) (Ins) No.305/2024 and (IA No.817/2024)

The NCLAT Chennai bench of Justice Sharad Kumar Sharma (Judicial Member) and Jatindranath Swain (Technical Member) affirmed that the sale of the Corporate Debtor as a going concern under Regulations 32(e) & 32A of the Liquidation Regulations is more transparent and effective; therefore, the sale of the Corporate Debtor as a going concern will have precedence, rather than resorting to the Scheme of Compromise under Section 230 (1) of the Companies Act, 2013.

NCLAT Orders Refund Of Pre-CIRP Electricity Dues Paid By SRA Under Protest For Restoration Of Electricity Connection

Case Title: Twentyone Sugars Limited vs. Maharashtra State Electricity Distribution Co. Ltd.

Case Number: COMPANY APPEAL (AT) (INS) NO.487/2023

The NCLAT bench comprising Justice Yogesh Khanna (Judicial Member) and Mr. Ajai Das Mehrotra (Technical Member) has allowed the refund of pre-Corporate Insolvency Resolution Process (CIRP) electricity dues paid by the Successful Resolution Applicant (SRA). Maharashtra State Electricity Distribution Co. (Respondent) had imposed the clearance of past dues as a precondition for restoring electricity connection. The Tribunal held that even if the payment was not made by the SRA/Appellant under protest, the Respondent was barred from recovering arrears that were extinguished by operation of law.

CoC Can Direct Liquidation Of Corporate Debtor Any Time Before Confirmation Of Resolution Plan U/S 33(2) Of IBC: NCLAT

Case Title: Sunil Surrendrakumar Kakkad Shareholder & Suspended Director of Sujyot Infrastructure Pvt. Ltd. Versus Sujyot Infrastructure Pvt. Ltd. and Anr.

Case Reference: Company Appeal (AT) (Insolvency) No. 1423 of 2024

The NLCAT New Delhi bench of Justice Ashok Bhushan (Chairperson), Barun Mitra (Technical Member) and Arun Baroka (Technical Member) has held that the CoC in its commercial wisdom can decide to liquidate the corporate debtor anytime after its constitution but before the confirmation of the Resolution Plan under section 33(2) of IBC. It is not mandatory that all steps related to revival of the corporate debtor through resolution plan must be exhausted before the liquidation can be directed.

Section 19(2) Application Can Be Preferred For Effective Conduct Of CIRP Despite Challenge To Admission Of CIRP: NCLAT

Case Title: M/s. Vilmar Agro Polymers Pvt. Ltd vs. SPC FAB Private Limited Saraswathi Nilayam & Anr.

Case Number: Company Appeal (AT) (CH) (Ins) No. 55/2024

The NCLAT, Chennai bench comprising Justice Sharad Kumar Sharma (Judicial Member) and Jatindranath Swain (Technical Member) has held that an application under section 19(2) of the Insolvency & Bankruptcy Code is maintainable when the Corporate Insolvency Resolution Process (CIRP) is admitted. The Tribunal observed that section 60(5) will not have a superseding effect to the provisions contained under section 19(2) read with section 14 for the purpose of effective conduct of CIRP proceedings

Property In Possession Of Corporate Debtor Sold When Petition U/S 7 Of IBC Was In Consideration Cannot Be Excluded From Assets: NCLAT

Case Title: Mr. Bhagawant Narayan Naik, Versus Ritesh R. Mahajan and Ors.

Case Reference:Company Appeal (AT) (CH) (Ins.) No. 394/2024 (IA Nos. 1072 & 1074/2024 & 1073/2024)

The NCLAT Chennai bench of Justice Sharad Kumar Sharma (Judicial Member) and Jatindranath Swain (Technical Member) has held that property that is sold which was in possession of the corporate debtor immediately before the judgment in a petition under section 7 of the IBC was reserved cannot be excluded from the purview of the assets of the corporate debtor.

NCLT Is Not Right Forum To Decide Whether Closure Of Factory Under Industrial Dispute Act Was As Per Law: NCLAT

Case Title: Rakesh J Shah & Ors. Vs. Sanjay Kumar Agarwal & Ors.

Case Reference:Company Appeal (AT) (Insolvency) No. 1490 of 2024

The NCLAT New Delhi bench of Justice Ashok Bhushan (Chairperson), Barun Mitra (Technical Member) and Arun Baroka (Technical Member) has held that the Adjudicating Authority is not the right forum to decide whether closure of the factory was in accordance with law. Such an issue should have been raised before the relevant authority under the Industrial Disputes Act and not before the Adjudicating Authority.

Revisiting Resolution Plan After Commencement Of Liquidation Process Is Against Principle Of Procedural Finality: NCLAT Chennai

Case Title: Mapletree Leather Goods Private Limited v. Savan Godiawala, C/o Deloitte Touche Tohmatsu India LLP

Case Number: Company Appeal (AT)(CH)(Ins) No.314/2020 (IA No.436/2021)

The National Company Law Appellate Chennai comprising of Justice Sharad Kumar Sharma, (Member Judicial) and Jatindranath Swain (Member Technical) dismissed two appeals filed by the Corporate Debtor seeking to challenge the order of NCLT, Bangalore by which it was directed to be put into the liquidation process and second to challenge the order of the same tribunal which dismissed the prayer of the Appellant for issue of an appropriate direction to the liquidator to put on hold the auction of the mmovable asset of the Corporate Debtor.
Performance Pay Does Not Qualify As Operational Debt For Which Proceedings U/S 9 Of IBC Cannot Be Initiated: NCLAT

Case Title: M Ramakanth v. M/s. Nagarjuna Fertiliser and Chemicals Limited

Case Reference:Company Appeal (AT) (CH) (Ins) No.213/2024

The NCLAT Chennai bench of Justice Sharad Kumar Sharma (Judicial Member) and Jatindranath Swain (Technical Member) has held that a variable claim like performance pay which is not certain and has to be determined based on the performance of the employee will not be an operational debt as it is not the payment due therefore proceedings under section 9 of the IBC cannot be initiated for such a claim.

Application U/S 95 Cannot Be Rejected On Grounds Of Pendency Of One Time Settlement Proposal: NCLAT

Case Title: Mohit Dewan v. Bank of Maharashtra and Anr.

Case Reference:Comp. App. (AT) (Ins) No. 2176 of 2024 & I.A. No. 8129 of 2024

The NCLAT New Delhi bench of Mr. Justice Ashok Bhushan (Chairperson), Mr. Barun Mitra (Technical Member) and Mr. Arun Baroka (Technical Member) has held that pendency of One Time Settlement Proposal (OTS) which is yet to be accepted, cannot be a ground to refuse initiation of insolvency process against the personal guarantors.

No Part Of Resolution Plan Can Be Given On Application Of Operational Creditor Till Plan Is Approved By Adjudicating Authority: NCLAT

Case Title: Pakhi Infra and Ors. v. Jabalpur MSW Pvt. Ltd.

Case Reference:Comp. App. (AT) (Ins) No. 2175 of 2024

The NCLAT New Delhi bench of Mr. Justice Ashok Bhushan (Chairperson), Mr. Barun Mitra (Technical Member) and Mr. Arun Baroka (Technical Member) has held that no part of the Resolution Plan can be given to the operational creditor till the Resolution Plan pending for approval before the Adjudicating Authority is approved. However, any objections to the approval of the plan can be raised before the Adjudicating Authority.

Sale Certificate Issued In Favor Of Successful Bidder Can Be Cancelled If Bid Amount Is Not Paid Within 90 Days: NCLAT

Case Title: S P Construction v. Narendra Kumar Sharma

Case Reference:Company Appeal (AT) (Insolvency) No. 858 of 2024

The NCLAT New Delhi bench of Mr. Justice Ashok Bhushan (Chairperson), Mr. Barun Mitra (Technical Member) and Mr. Arun Baroka (Technical Member) has held that as per Liquidation Regulations, the bid amount has to be paid within 90 days. If the amount is not paid, sale certificate issued in favor of the Successful Bidder can be cancelled and the security amount be forfeited.

Information Memorandum Based On Which Resolution Plan Is Submitted And Approved By CoC Cannot Be Modified: NCLAT

Case Title: Mrs. Supriya Singh Versus M/s Ansal Urban Condominiums Pvt. Ltd. and Ors.

Case Reference:Company Appeal (AT) (Insolvency) No. 1974 of 2024

The NCLAT New Delhi bench of Mr. Justice Ashok Bhushan (Chairperson), Mr. Barun Mitra (Technical Member) and Mr. Arun Baroka (Technical Member) has held that Information Memorandum prepared by the Resolution Professional based on which the Resolution Plan was submitted and later approved by the CoC, cannot be modified.In this case, the allotment units to homebuyers were cancelled by the erstwhile management of the Corporate Debtor and this information was also included in the Information Memorandum based on which the plan was submitted and approved.

Share Application Money Deposited With Corporate Debtor Cannot Be Treated As Financial Debt U/S 5(8) Of IBC: NCLAT

Case Title:M/s. MURLIDHAR VINCOM PVT. LTD. Versus M/s. SKODA (INDIA) PVT. LTD

Case Reference:Company Appeal (AT) (Insolvency) No. 1334 of 2024

The NCLAT New Delhi bench of Mr. Justice Ashok Bhushan (Chairperson), Mr. Barun Mitra (Technical Member) and Mr. Arun Baroka (Technical Member) has held that share application money deposited with the corporate debtor cannot be treated as financial debt under section 5(8) of the IBC. In this case, share application money was given for the allotment of shares but neither were shares allotted nor was money refunded.

Petition U/S 9 Of IBC Cannot Be Rejected On Grounds Of Raising Spurious Claim Of Pre-Existing Dispute: NCLAT

Case Title: Romi Datta Versus Sigma Supply Chain Solutions Pvt. Ltd and Anr.

Case Reference:Company Appeal (AT) (Insolvency) No. 1652 of 2023

The NCLAT New Delhi bench of Mr. Justice Ashok Bhushan (Chairperson) and Mr. Barun Mitra (Technical Member) has held that making belated entries in the books of account to show that goods were misappropriated cannot escape the conclusion that the dispute raised by the corporate debtor was merely a moonshine just to avoid the liability.

Impleadment Of Party After Closure Of Initial CIRP Plea Against Corporate Debtor: NCLAT Chennai Protects Operational Creditor's Claims

Case Title: Sathya Moorthy Sai Prasad vs Shapoorji Pallonji and Company Pvt. Ltd. & Anr.

Case No.: Company Appeal (AT) (CH) (Ins) No.134/2023 (IA Nos. 449/2023, 446/2023, 447/2023, 448/2023, 450/2023, 889/2023, 161/2024, 999/2024 & 1134/2024)

The National Company Law Appellate Tribunal (NCLAT), Chennai bench of Justice Sharad Kumar Sharma (Judicial Member) and Mr Jatindranath Swain (Technical Member) allowed the impleadment application filed by an Operational Creditor, on the ground that its application to initiate CIRP proceedings against the Corporate Debtor were closed due to initiation of CIRP by another creditor. The NCLAT exercised its discretionary power under Order 1 Rule 10 (2) of the CPC to allow the application.

Guarantor Cannot Become Financial Creditor Without Making Any Payment In Discharge Of Guarantee: NCLAT

Case Title: Mr. Suresh Kumar and Anr. Versus Central Bank of India

Case Reference: Company Appeal (AT) (Insolvency) No. 1592 of 2024

The NCLAT New Delhi bench of Mr. Justice Ashok Bhushan (Chairperson), Mr. Barun Mitra (Technical Member) and Mr. Arun Baroka (Technical Member) has held that guarantor cannot become a financial creditor without paying any amount towards discharging the liability of the principal borrower for whom the guarantee was given.

Once Plausibility Of Pre-Existing Dispute Is Established, Application U/S 9 Of IBC Must Be Rejected: NCLAT

Case Title: M/s. Kashyap lnfraprojects Pvt. Ltd. Versus M/s. Hi-Tech Sweet Water Technologies Pvt. Ltd.

Case Reference: Company Appeal (AT) (Insolvency) No. 33 of 2023

The NCLAT New Delhi bench of Justice Rakesh Kumar Jain (Judicial Member), Barun Mitra (Technical Member) and Indevar Pandey (Technical Member) has held that IBC bestows only summary jurisdiction upon the Adjudicating Authority. Once plausibility of a pre-existing dispute is noticed, it is not required of the Adjudicating Authority to make further detailed investigation. It is well settled that in a Section 9 proceeding, the Adjudicating Authority is not to enter into final adjudication with regarding the operational debt.

Application U/S 7 Of IBC Cannot Be Admitted In Absence Of Debt And Default: NCLAT New Delhi

Case Title: Mr. Atul Nathalal Patel Versus Mr. Manish Pardasani and Ors.

Case Reference:Company Appeal (AT) (Insolvency) No. 1008 of 2023

The NCLAT New Delhi bench of Justice Ashok Bhushan (Judicial Member) and Mr. Barun Mitra (Technical Member) has held that application under section 7 of the IBC cannot be admitted in absence of any debt and consequent default on the part of the corporate debtor. In this case, the corporate debtor had discharged the liability arising under the agreement despite this an application under section 7 was admitted.

Fraudulent Initiation Of CIRP Can Be Set Aside By NCLAT While Hearing Appeal U/S 61: NCLAT New Delhi

Case Title: Apnaghar Builders Pvt. Ltd. Versus Intense Fitness & Spa Pvt. Ltd. & Ors.

Case Number: Comp. App. (AT) (Ins.) No. 1025 of 2022 & I.A. No. 2964, 2965, 2966 of 2022

The NCLAT New Delhi bench of Justice Rakesh Kumar Jain (Judicial Member),Mr. Naresh Salecha (Technical Member) and Mr. Indevar Pandey (Technical Member) has held that fraudulent initiation of the CIRP can be set aside by the NCLT or as a corollary by NCLAT also as they have jurisdiction to decide whether any proceeding under the code has been initiated fraudulently or not. In this case, the financial creditor in connivance with the corporate debtor and ex management of the corporate debtor had initiated the CIRP under section 7 of the code.

Written Agreement Not Mandatory To Prove Financial Debt If It Can Be Proved From Other Materials On Record: NCLAT

Case Title: Ravi Auto Ltd. Vs. Surana Mercantiles Pvt. Ltd.

Case Number: Company Appeal (AT) (Insolvency) No. 1059 of 2022 & I.A. No. 3090 of 2022

The NCLAT New Delhi bench of Mr. Justice Ashok Bhushan (Judicial Member) and Mr. Arun Baroka (Technical Member) has affirmed that it is not necessary for financial debt to be proved by a written agreement if it can be established from other materials on record then application under section 7 can be admitted.In this case, the section 7 application of the financial creditor was rejected on the ground that there was not written agreement to prove the existence of financial debt.

Liquidator Can Recover Amount Which Belongs To Corporate Debtor By Filing Application U/S 60(5)(c) Of IBC: NCLAT

Case Title: Arkay Logistics Limited Versus Mr. Abhijit Guhathakurta

Case Number: Company Appeal (AT) (Insolvency) No.836 of 2024 & I.A. No.3021 of 2024

The NCLAT New Delhi bench of Mr. Justice Ashok Bhushan (Chairperson), Mr. Barun Mitra (Technical Member) and Mr. Arun Baroka (Technical Member) has held that liquidator can recover the amount of the corporate debtor by filing an application under section 60(5)(c) of the code before the NCLT as it is a matter which arises solely from or which relates to the insolvency of the Corporate Debtor.

If Interest On Principal Amount Crosses Threshold Limit, Application U/S 7 Of IBC Can Be Admitted: NCLAT

Case Title: Mrs. Rita Kedia Versus Ashika Global Securities Private Limited and Ors.

Case Number: Company Appeal (AT) (Insolvency) No. 1536 of 2023

The NCLAT Delhi bench of Justice Yogesh Khanna (Judicial Member) and Mr. Ajai Das Mehrotra (Technical Member) has affirmed that if interest on the principle amount disbursed to the corporate debtor crosses the threshold limit as provided under section 4 of the IBC, application under section 7 of the code can be admitted as interest is considered to be a disbursal against time value of money under section 5(8) of the code. In this case, although the principal amount was not claimed but the interest claimed crossed the threshold limit.

Interest On Operational Debt Cannot Be Claimed If There Is No Clause In Agreement For Payment Of Interest: NCLAT

Case Title: M/s Vedic Projects Pvt. Ltd. Versus Shri Sutanu Sinha

Case Reference: Company Appeal (AT) (Insolvency) No.1927 of 2024

The NLCAT New Delhi bench of Justice Ashok Bhushan (Chairperson) and Barun Mitra (Technical Member) held that no interest on principal amount can be claimed if there is no clause to this effect in the agreement executed between the parties. In this case, operational creditor while claiming its operational due also demanded payment of interest since it was an MSME and as per section 16 of the MSME Act, it was entitled to claim interest on the delayed payment. However, the RP rejected this demand and admitted only the principal amount.

Development Rights Constitute Property U/S 3(27) Of IBC, Can Be Included In Information Memorandum By RP U/S 29 Of Code: NCLAT

Case Title: K.H. Khan & Anr. Vs. Art Constructions Pvt. Ltd. & Ors.

Case Reference: Company Appeal (AT) (Insolvency) No. 1116 of 2024 and Company Appeal (AT) (Insolvency) No. 1117 of 2024

The NCLAT New Delhi bench of Justice Ashok Bhushan (Chairperson) and Barun Mitra (Technical Member) affirmed that development rights are property within the meaning of section 3(27) of the IBC which can be included in the Information Memorandum by Resolution Professional under section 29 of the IBC. The Tribunal further observed that the Adjudicating Authority has jurisdiction to enter into as to whether property included in the IM is asset of the corporate debtor under section 60 of the IBC and for decision of the question, the parties are not required to be relegated to the Competent Civil Court having jurisdiction

If Genuine Pre-Existing Dispute With Regard To Operational Debt Is Established, Petition U/S 9 Of IBC Must Be Rejected: NCLAT

Case Title: LAW & KENNETH SAATCHI & SAATCHI PRIVATE LIMITED Versus PATANJALI PARIDHAN PRIVATE LIMITED

Case Reference: Company Appeal (AT) (Insolvency) No. 1033 of 2023

The NCLAT New Delhi bench of Justice Yogesh Khanna (Judicial Member) and Mr. Ajai Das Mehrotra (Technical Member) affirmed that a petition under section 9 of the IBC can be rejected if the dispute raised by the corporate debtor with respect to the debt is genuine and not a moonshine or a bluster just to avoid the liability.

NCLAT Judge Records In Order His Brother's Message For Favour, Recuses From Matter

Case : Mr. Babu Manoharan Jaikumar Christhurajan V Mr. Umesh Garg & 2 Ors |Company Appeal (AT) (CH) (Ins) No.358/2022

A judicial member of the National Company Law Appellate Tribunal has recused from hearing a matter after his brother messaged him requesting favourable orders in the case.

Interestingly, in the recusal order, the judge extracted the entire message verbatim.

The extraordinary event took place before the bench presided by Justice Sharad Kumar Sharma at the NCLAT Chennai Bench. Justice Sharma stated in the order that he was "approached" by his real brother.

CoC Has Authority To Modify Resolution Plan To Comply With Directions Of Supreme Court: NCLAT

Case Title: Meenakshi and Kushal Goyal Versus Amit Agarwal and Ors.

Case Reference: Company Appeal (AT) (Insolvency) No. 1022 of 2024

The NCLAT has affirmed that the CoC is empowered to modify the resolution plan in order to comply with the directions issued by the Supreme Court. In this case,while resolution plan was pending before the Adjudicating Authority, the Supreme Court passed its decision in State Tax Officer in which it was held that the debts owed to a secured creditor, which would include the State under the GVAT Act, are to rank equally with other specified debts including debts on account of workman's dues for a period of 24 months preceding the liquidation commencement date.

Since Shareholders Of Corporate Debtor Do Not Fall Within Definition Of “Aggrieved Party”, Appeal Filed U/S 61 Of IBC Not Maintainable: NCLAT

Case Title: Clarion Health Food LLP Versus Goli Vada Pav Pvt. Ltd. and Anr.

Case Reference: Company Appeal (AT) (Ins.) No. 1522 of 2023

The NCLAT New Delhi bench of Justice Rakesh Kumar Jain (Judicial Member),Mr. Naresh Salecha (Technical Member) and Mr. Indevar Pandey (Technical Member) affirmed that a shareholder of the company is not the “aggrieved party” as per the provisions of the Code therefore appeal filed by him under section 61 of the Code would not be maintainable.

The 'Appellants' even as “shareholders” cannot be aggrieved merely by the admission of the 'Corporate Debtor' into 'Corporate Insolvency Resolution Process'. Such objection may render the object of I & B Code, 2016 illusory since any shareholder of any 'Corporate Debtor' against which Insolvency proceedings have been initiated can then seek to maintain a derivative action and sabotage a valid 'Corporate Insolvency Resolution Process' initiated by the Adjudicating Authority, the tribunal noted.

Allotment Of Commercial Space By Corporate Debtor Through Unregistered Allotment Letter Remains Their Asset, Can't Be Excluded From Resolution Plan: NCLAT

Case Title: Praveen Arya & Ors. Versus Anju Aggarwal (RP of Corporate Debtor ) & Anr

Case Reference: Company Appeal (AT) (Insolvency) No. 40 of 2024 With Company Appeal (AT) (Insolvency) No.45 of 2024 & Interlocutory Application No.140 of 2024

The NCLAT New Delhi bench of Justice Ashok Bhushan (Chairperson) and Barun Mitra (Technical Member) has held that allotment of commercial spaces by the corporate debtor through unregistered documents like allotment letter, lease deed etc.cannot divest the CD of their ownership. They would continue to remain the assets of the CD therefore they cannot be excluded from the Resolution Plan.

Filing Petition U/S 10 Of IBC Subsequent To Action Taken Under SARFAESI Act Cannot Be Termed Malicious Or Fraudulent: NCLAT

Case Title: Getz Cables Private Limited Versus State Bank of India and Anr.

Case Reference: Company Appeal (AT) (Insolvency) No.1953 of 2024

The NCLAT New Delhi bench of Justice Ashok Bhushan (Chairperson) and Arun Baroka (Technical Member) has held that merely because proceeding under Section 13, sub-section (2) and (4) of the SARFAESI Act has been initiated by the creditor prior to filing of Section 10 application, cannot be a ground to hold that Section 10 application is filed with malicious and fraudulent intent to be rejected under section 65 of the IBC.

Official Liquidator Cannot Institute S. 61 Proceedings To Challenge Directions Issued To IBBI: NCLAT Chennai

Case Title: CA Ramasamy Shanmuggam, Liquidator of RLS Alloys Pvt. Ltd. Vs Insolvency and Bankruptcy Board of India

Case Number: Company Appeal (AT) (CH) (Ins) No.413/2022

The National Company Law Appellate Chennai comprising of Justice Sharad Kumar Sharma (Member Judicial) and Jatindranath Swain (Member Technical) dismissed an appeal filed by the Liquidator of the Corporate Debtor M/s RLS Alloys Pvt. Ltd stating that the appeal is a pre-mature appeal and that the Liquidator cannot institute a Section 61 proceedings to challenge the directions given to the IBBI.

NCLT

Approved Resolution Plan Can Be Amended To Ensure Statutory Compliance U/S 31 Of IBC: NCLT Kolkata

Case Title: Kundan Minerals and Metals Limited v. (National Stock Exchange of India Limited, Mumbai

Case Reference: I.A. (IB) No. 1720/KB/2024

The NCLT Kolkata Bench of Justices D. Arvind and Bidisha Banerjee held that the approved resolution plan can be amended to ensure that it complies with the statutory provisions under section 31(e) of the IBC. In this case, an application seeking amendment to the approved resolution plan was filed by the SRA to increase the public shareholdings to 5% as mandated by Rule 19(5) of the SCRA Rules. The public shareholdings stood at 2.28% after the approval of the plan.

Extinguishment Of Promoters' Personal Guarantees In Resolution Plan Is Valid If Plan Complies With IBC Provisions: NCLT Mumbai

Case Title: Small Industrial Development Bank of India (SIDBI) V/s Harshad Deshpande and Anr.

Case Reference: IA No. 2573/2021 In CP (IB) 4367/MB/ of 2018

The NCLT Mumbai Bench of Justice Anil Raj Chellan (Technical Member) and Kuldip Kumar Kareer (Judicial Member) affirmed that the clause in the resolution plan for extinguishing the personal guarantees of promoters furnished in favour of all financial creditors or the commercial decision of the CoC to approve such release of personal guarantees, including guarantees executed in favour of dissenting financial creditors, will not contravene any provisions of the Code. Further, the dissatisfaction of a creditor in respect of payment under the Resolution Plan is of no consequence unless it violates any of the provisions of the Code.

Banking Companies Not Required To Exhaust MSME Revival Option Before Filing Petition U/S 7 Of IBC: NCLT, Mumbai

Case Title: Technology Development Board vs. M/s Perfect Infraengineers Limited

Case Number: C.P.(IB) No. 322/MB/2023

The NCLT, Mumbai Bench comprising Shri Prabhat Kumar (Technical Member) and Justice Shri V.G. Bisht (Judicial Member) has observed that restructuring process contemplated in the notification dated 29.05.2015 issued by the Ministry of Micro, Small and Medium Enterprises is another mode for revival and rehabilitation of the MSME Corporate Persons in addition to Insolvency and Bankruptcy Code, 2016 (IBC). The Tribunal held that it cannot be said that MSMED Act overrides the provisions of IBC, unless said so expressly in terms of Section 240A(2). Thus, it is not incumbent on the Banking companies to first exhaust the avenue of revival under the Notification before proceeding to file an application under section 7 of IBC for the resolution of financial defaults under the Code. The Tribunal also held that an application under section 7 can be adjudicated by the Tribunal even on application of one financial creditor, provided the debt due to such financial creditor exceeds the threshold limit. Therefore, another lender of Corporate Debtor need not be impleaded as party to proceed under section 7.

Reduction Of Share Capital Does Not Exempt Company From Fulfilling Other Statutory Obligations: NCLT Ahmedabad

Case Title: Mahan Industries Limited

Case Number: CP 8 of 2023 (Under Sec 66 of Companies Act, 2013)

The National Company Law Tribunal, Ahmedabad comprising of Dr V.G Venkata Chalapathy (Member Technical) and Chitra Hankare (Member Judicial) approved a Section 66 application of Companies Act, 2013 filed by the Mahan Industries, seeking confirmation in the reduction of its share capital.

Mere Possession Over Assets Of Corporate Debtor Under SARFAESI Act Does Not Bar Filing Of Petition U/S 7 Of IBC: NCLT Kolkata

Case Title: SREI Equipment Finance Ltd. v. Roadwings International Pvt. Ltd.

Case Reference: I.A. (IB) No. 1268/KB/2024 in Company Petition (IB) No. 224/KB/2023

The NCLT Kolkata bench of Ms. Bidisha Banerjee (Judicial Member) and Shri Arvind Devanathan (Technical Member) have held that mere possession over assets of the corporate debtor under the SARFAESI Act does not prevent the financial creditor from preferring an application under section 7 of the IBC.

Only Assets Are Transferred In Going Concern Sale Of Corporate Debtor Under Liquidation, Liabilities Must Be Settled U/S 53 Of IBC: NCLT Mumbai

Case Title: Mr. Ravikant Modi v. Mr. Anshul Gupta (Liquidator)

Case Reference: IA No. 929 of 2024 in CP (IB) No. 1088/MB/2020

The NCLT Mumbai bench of Ms. Reeta Kohli (Judicial Member) and Ms. Madhu Sinha (Technical Member) has held that in a sale of the corporate debtor in liquidation as a going concern, only assets are transferred and liabilities have to be discharged as per section 53 of the Code.

Threshold Limit For Initiating Insolvency Process Against Personal Guarantors Is Also ₹1 Crore: NCLT New Delhi

Case Title: Mudraksh Investfin Pvt. Ltd. v. Gursev Singh

Case Reference: RCP IB-21/ND/2024 Old No- IB-422/ND/2024

The NCLT New Delhi bench of Shri Subrata Kumar Dash (Technical Member) and Shri Ashok Kumar Bhardwaj (Judicial Member) had held that the threshold limit for initiating insolvency process against the personal guarantors under section 95 of the Code would be the same as is with respect to the corporate debtor under section 4 of the IBC i.e. 1 crore.

Article

Exploring The Priority Of Consideration For Insolvency Applications U/S 7 Of IBC Over Arbitration Applications U/S 8 Of Arbitration Act

In a recent decision titled Century Aluminium Company Limited v. Religare Finvest Limited (2024), the NCLAT grappled with an important question whether, when an insolvency petition under section 7 of the IBC is filed and yet to be admitted, subsequent filing of an arbitration application under section 8 of the Arbitration Act would be maintainable or not.

The tribunal observed that when the insolvency petition is filed and admitted or yet to be admitted, pendency or subsequent filing of the arbitration application is immaterial. The insolvency petition has to be decided first. The tribunal further observed that purpose of the IBC would be defeated if the insolvency petition is postponed just because a corresponding arbitration matter is pending.

IBBI Releases Discussion Paper On Real Estate Issues, Suggests Inclusion Of Land Authorities In CoC Meetings

On 7th November, 2024, the Insolvency and Bankruptcy Board of India (IBBI) has released a discussion paper on the issues related with the Real Estate with seven proposals.

This discussion paper is based on findings and recommendations from a recent study group by the Indian Institute of Insolvency Professionals of ICAI (IIIPI) that focused on improving real estate resolutions under IBC and coordination with RERA. It also includes issues and concerns raised during recent consultations with resolution applicants, Insolvency Professionals and other key stakeholders in the insolvency process.

Property Of Personal Guarantors Cannot Be Sold Under SARFAESI Act During Moratorium Period U/S 96 Of IBC: NCLT Mumbai

Case Title: Raghavendra Joshi Residing Versus Indian Bank and Anr.

Case Reference: I.A. No. 2247/2023 IN C.P. NO. 575(IB)/MB/2022

The NCLT Mumbai bench of Mr. Charanjeet Singh Gulati (Member Technical) and Justice Lakshmi Gurung (Member Judicial) has held that once a petition under section 95 of the IBC is filed, the interim moratorium under section 96 is triggered. During subsistence of the moratorium, property of the personal guarantors cannot be sold by the financial creditor under the SARFAESI Act even if sale auction notice was issued before commencement of the moratorium.
When Statutory Criteria U/S 7 Of IBC Is Satisfied, Tribunal Must Admit CIRP: NCLT, Mumbai

Case Title: Bank of India vs. GF Toll Road Private Limited

Case Number: CP (IB)/83 (MB)/2024 and CP (IB)/120 (MB)/2024

The National Company Law Tribunal (NCLT), Mumbai bench, comprising Justice V. G. Bisht (Retd.) (Judicial Member) and Sh. Prabhat Kumar (Technical Member) has held that the petition for initiation of Corporate Insolvency Resolution Process (CIRP) was admissible as the statutory criteria under Section 7 of the Insolvency and Bankruptcy Code, 2016 (IBC), viz. the existence of financial debt, default were satisfied. The Tribunal reiterated that the existence of an arbitral award in favour of the Corporate Debtor did not bar the admission of the CIRP petition. It observed that no "good reason" existed to dismiss the petition. The Tribunal also observed, “It is trite law that this Tribunal cannot enforce an alternate mode of resolution than provided in the Code.”