“Inappropriate, Almost Bordering On Contempt”: SC Deprecates NCLAT Order Impeding Implementation Of SC Order

Case Title: Indiabulls Housing Finance Ltd. v Iirf India Realty Xii Ltd. & Ors.

Case No.: CIVIL APPEAL NO.9062/2022

The Supreme Court Bench comprising of Justice Sanjay Kishan Kaul and Justice Abhay S. Oka while adjudicating an appeal has set aside a status quo order passed by NCLAT Delhi which impeded the implementation of an order passed by the Supreme Court. The Bench has deprecated the NCLAT order while observing that the same is inappropriate and almost bordering on contempt.

“We fail to appreciate how a status quo order could have been passed by a Bench of the NCLAT seeking to impede the implementation of the order of this Court. If there was a grievance about the implementation of the order of the Court, only this Court could have got into it. We consider the conduct of the Bench not only inappropriate but almost bordering on contempt. We strongly deprecate the order passed by the NCLAT Bench. We thus, set aside the order of status quo in those proceedings and insofar as that appeal i.e. Company Appeal (AT) (INS.) No.1472/2020, is concerned, the same be placed before a Bench presided over by the Chairman.”

Borrowers Enter OTS ; Supreme Court Directs Bank To Re-Consider Decision Of Wilful Default

Case Title: Orbitz Irrigation Pvt. Ltd. & Ors. v Bank Of Baroda & Anr.

Case No.: Special Leave to Appeal (C) No.15751/2022

The Supreme Court Bench comprising of Justice Surya Kant and Justice J.B. Pardiwala, has directed the Bank to re-consider its decision of declaring the Borrowers (Petitioners) as wilful defaulters in light of changed circumstances, as the Bank had subsequently entered into One Time Settlement (OTS) with the Borrowers. The Borrowers have been making payments towards the OTS. The Bench has also granted liberty to the Borrowers to avail legal remedy if the Bank's decision on their representation is not favourable to them.

Sabka Vishwas Scheme: Supreme Court Grants Relief To Company Which Missed Deadline Due To IBC Moratorium

Case Title: Shekhar Resorts Limited vs Union of India

Case No.: 2023 LiveLaw (SC) 15, CA 8957 OF 2022

The Supreme Court Bench comprising of Justices M R Shah and Justice B V Nagarathna has remarked that “No one can be expected to do the impossible” while granting relief to a company which could not avail the benefit of settlement of tax dues under “Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019, due to moratorium under IBC being imposed on it. "The appellant cannot be punished for not doing something which was impossible for it to do. There was a legal impediment in the way of the appellant to make any payment during the moratorium. Even if the appellant wanted to deposit settlement amount within the stipulated period, it could not do so in view of the bar under the IBC as, during the moratorium, no payment could have been made. In that view of the matter, the appellant cannot be rendered remediless and should not be made to suffer due to a legal impediment which was the reason for it and/or not doing the act within the prescribed time." Allowing the appeal, the court directed that the payment of Rs.1,24,28,500/- already deposited by the appellant be appropriated towards settlement dues under “Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019” and the appellant be issued discharge certificate.

IBC - Delay In Filing CIRP Application Condonable On Sufficient Reasons: Supreme Court

Case Title: Sabarmati Gas Limited v Shah Alloys Limited

Case No.: 2023 LiveLaw (SC) 9, CA 1669 of 2020

The Supreme Court Bench comprising of Justices Ajay Rastogi and Justice C T Ravikumar has held that delay in initiating Corporate Insolvency Resolution Process (CIRP) is condonable on sufficient grounds. "When the limitation period for initiating CIRP under Section 9, IBC is to be reckoned from the date of default, as opposed to the date of commencement of IBC and the period prescribed therefor, is three years as provided by Section 137 of the Limitation Act, 1963 and the same would commence from the date of default and is extendable only by application of Section 5 of the Limitation Act, 1963 it is incumbent on the Adjudicating Authority to consider the claim for condonation of the delay when once the proceeding concerned is found filed beyond the period of limitation..As relates Section 5 of the Limitation Act showing 'sufficient cause' is the only criterion for condoning delay. 'Sufficient Cause' is the cause for which a party could not be blamed.

IBC- Once Resolution Plan Is Approved, No Modifications Are Permissible: Supreme Court

Case Title: SREI Multiple Asset Investment Trust Vision India Fund v Deccan Chronicle Marketeers & Ors.

Citation: 2023 LiveLaw (SC) 231

The Supreme Court Bench comprising of Justice Ajay Rastogi and Justice Bela M. Trivedi, has held that the declaration made by the NCLT to the effect that the trademarks “Deccan Chronicle” and “Andhra Bhoomi”, which originally belonged to Deccan Chronicle Holdings Ltd. (“DCHL/Corporate Debtor”), continues to be under the ownership of DCHL post the approval of resolution plan, would amount to impermissible modification of resolution plan as the same was silent on this aspect. The Bench upheld the NCLAT order wherein it was held that any right or ownership claimed after approval of Resolution Plan by CoC stands extinguished and accordingly the Successful Resolution Applicant could only use the Corporate Debtor's existing trademarks without financial implication, but such trademarks could no longer be considered under ownership of the Corporate Debtor.

IBC- Resolution Professional Entitled To Take Control Of Corporate Debtor's Rights In Assets Licensed To Third Parties : Supreme Court

Case Title: Victory Iron Works Ltd. v Jitendra Lohia & Anr.

Citation : 2023 LiveLaw (SC) 193

The Supreme Court Bench comprising of Justice V. Ramasubramanian and Justice Pankaj Mithal, has held that a resolution professional is entitled to take control of the rights of a corporate debtor in assets which are licensed to third parties. Such an action of the RP will come within the ambit of Section 25 of IBC. Further, the assets owned by a third-party, but in the possession of the Corporate Debtor held under contractual arrangements, are excluded from the definition of “assets” in Section 18 of IBC, however, the said exclusion does not extend to Section 25 of IBC. Therefore, the Explanation to Section 18 is inapplicable to Section 25 of IBC.

Insolvency Resolution Of Company Will Not Extinguish Director's Liability Under Section 138 NI Act: Supreme Court

Case Title: Ajay Kumar Radheyshyam Goenka v Tourism Finance Corporation of India Ltd.

Citation: 2023 LiveLaw (SC) 195

The Supreme Court bench comprising Justices Sanjay Kishan Kaul, Abhay S Oka and JB Pardiwala has held that approval of resolution plan of a corporate debtor under the IBC will not extinguish the criminal liability of its erstwhile director under Section 138 of the Negotiable Instruments Act 1881. The company's director cannot seek discharge from N.I. Act proceedings on the ground that creditor's debt stood settled in the proceedings under IBC.

IBC | Section 9 Petition Not To Be Dismissed If Few Invoices Are Time Barred But Remaining Invoices Are Not; Supreme Court

Case Title: M/S Next Education India Pvt. Ltd. v M/S K12 Techno Services Pvt. Ltd.

Citation: 2023 LiveLaw (SC) 270

The Supreme Court Bench comprising of Justice M.R. Shah and Justice C.T. Ravikumar, has held that when a petition under Section 9 of IBC is filed based on several invoices and some of the invoices are time barred, then NCLT must consider the remaining invoices which are within limitation and whether they cross the minimum threshold of Rs. 1 Crore. The Section 9 petition cannot be dismissed on the sole ground that some of the invoices are time barred.

IBC| Principle Of Commercial Wisdom Not Validate A Decision Taken By CoC In Contravention Of Law: Supreme Court

Case Title: M.K. Rajagopalan v Dr. Periasamy Palani Gounder

Citation: 2023 LiveLaw (SC) 403

The Supreme Court Bench comprising of Justice Dinesh Maheshwari and Justice Vikram Nath, has held that the principle of 'Commercial Wisdom' of the Committee of Creditors (“CoC”) cannot brush aside the shortcomings of the CoC in cases where decision making was done in contravention to a law which is in force for the time being. The Bench has upheld the NCLAT's order whereby the Successful Resolution Applicant was declared ineligible in terms of Section 88 of the Indian Trusts Act, 1882, since he had submitted two resolution plans, one in individual capacity and one in the capacity of Managing Trustee of the Trust.

IBC| Ineligibility Of Resolution Applicant As Per S.164(2)(b) Companies Act Can't Be Presumed Unless Competent Authority Declares Disqualification: Supreme Court

Case Title: M.K. Rajagopalan v Dr. Periasamy Palani Gounder

Citation: 2023 LiveLaw (SC) 403

The Supreme Court Bench comprising of Justice Dinesh Maheshwari and Justice Vikram Nath, has held that a resolution applicant cannot be rendered ineligible to submit a resolution plan under the Insolvency and Bankruptcy Code, 2016 (“IBC”), by assuming his/her disqualification under Section 164(2)(b) of the Companies Act, 2013, unless a categorical order disqualifying him/her to act as a director of any company is passed by the competent authority. Further, there is no concept of 'deemed disqualification' under Section 164(2)(b) of the Companies Act, 2013.

No Priority For Workers' Dues After Liquidation Of Company Under IBC: Supreme Court Upholds Section 327(7) Of Companies Act 2013

Case Title : Moser Baer Karamchari Union through its President Mahesh Chand Sharma vs Union of India W.P.(C) No. 421/2019 and connected cases.

Citation: 2023 LiveLaw (SC) 386

The Supreme Court Bench comprising Justices MR Shah and Sanjiv Khanna has held upheld the constitutional validity of Section 327(7) of the Companies Act, 2013, which holds that workers' dues will not get preferential payment in the event a company undergoes liquidation as per the provisions of the Insolvency and Bankruptcy Code 2016.

"The enactment of the IBC and Section 53 of IBC necessitated amendment to the Companies Act 2013. The object and purpose of amending the Companies Act 2013 and to exclude Sections 326 and 327 in the event of liquidation of a company under IBC seem to be that there may not be two different provisions in respect to the winding up/ liquidation of a company. Therefore, in view of the enactment of the IBC, it was necessary to exclude the applicability of Section 326 and 327 of the 2013 Act, which cannot be said to be arbitrary, as contended on behalf of the petitioners",

IBC | Date Of Order Pronouncement & Time Taken To Provide Certified Copy Excluded From Limitation Period For Appeal To NCLAT: Supreme Court

Case Title: Sanket Kumar Agarwal & Anr v APG Logistics Private Limited

Citation: 2023 LiveLaw (SC) 406

The Supreme Court Bench comprising Chief Justice of India Dr. Dhananjaya Y Chandrachud and Justice J B Pardiwala, has held that for the purpose of computing limitation for filing of appeal under Section 61(2) of the Insolvency and Bankruptcy Code, 2016, the time taken by Tribunal for providing certified copy of order to be challenged ought to be excluded from computation of limitation.

Further, the date on which the order was pronounced must be excluded while computing limitation for filing of appeal against such order. Accordingly, the Bench has set aside an order passed by the National Company Law Appellate Tribunal (“NCLAT”), wherein NCLAT had erroneously included the date of order pronouncement in limitation period and dismissed the appeal for being barred by limitation.

IBC | NCLT Has To Admit Sec 7 Petition If Debt Is Due; Decision In 'Vidarbha Industries' Based On Its Facts: Supreme Court

Case Title: M. Suresh Kumar Reddy v Canara Bank & Ors.

Citation: 2023 LiveLaw (SC) 428

The Supreme Court Bench comprising of Justice Abhay S. Oka and Justice Rajesh Bindal, has held that if the existence of a financial debt and its default on the part of Corporate Debtor has been proved, then the National Company Law Tribunal (“NCLT”) is left with no option apart from admitting the petition under Section 7 of the Insolvency and Bankruptcy Code, 2016 (“IBC”). The only ground on which a petition under Section 7 of IBC can be rejected is when the debt in question has not become due and payable(M. Suresh Kumar Reddy v Canara Bank & Ors.).

Further, the decision in Innoventive Industries Limited v. ICICI Bank and Another, (2018) 1 SCC 407, still holds good and the NCLT must admit a petition under Section 7 of IBC once existence of debt and default is established. The decision in Vidarbha Industries Power Limited v. Axis Bank Limited, 2022 LiveLaw (SC) 587, was passed based on the facts of that particular case and it did not hold anything contrary to the Innoventive Industries judgment.

Supertech Insolvency: Supreme Court Approves 'Project Wise Resolution' Plan

Case Title: Indiabulls Asset Reconstruction Company Limited v Ram Kishore Arora & Ors.

Citation: 2023 LiveLaw (SC) 436

The Supreme Court Bench comprising of Justice Dinesh Maheshwari and Justice Sanjay Kumar, has declined to grant any interim relief in respect of order passed by the National Company Law Appellate Tribunal (“NCLAT”) directing 'project wise insolvency resolution process' of Supertech Ltd.'s Eco Village-II project. The Bench has observed that constituting Committee of Creditors (CoC) for all the projects of Supertech Limited would affect the ongoing projects and cause hardship to the homebuyers.

The Bench has directed that during the pendency of the appeal, any process beyond voting on the Resolution Plan should not be undertaken without specific orders of the Supreme Court in respect to the Corporate Insolvency Resolution Process (CIRP) of Eco Village-II project.

Remedies Against Third-Parties Not Available Under Section 66 Of IBC: Supreme Court

Case Title: Glukrich Capital Pvt Ltd vs The State of West Bengal

Citation: 2023 LiveLaw (SC) 464

The Supreme Court Bench comprising of Justice Krishna Murari and Justice Sanjay Kumar, affirmed that the remedy against third party is not available under Section 66 of IBC. The Bench further held, “We are of the considered opinion that in such circumstances, it is for the Resolution Professional or the successful resolution applicant, as the case may be, to take such civil remedies against third party, for recovery of dues payable to corporate debtor, which may be available in law. The remedy against third party, however, is not available under Section 66 of IBC, and the civil remedies which may be available in law, are independent of the said Section"

Is Resolution Professional A 'Public Servant' Under Prevention Of Corruption Act? Supreme Court To Examine

Case Title: Sanjay Kumar Agarwal v. Central Bureau of Investigation

Citation: SLP(Crl) No. 7029/2023

The Supreme Court Bench comprising Justice AS Bopanna and Justice Prashant Kumar Mishra, has issued notice in a plea challenging the ruling of the Jharkhand High Court that a Resolution Professional (RP) will be considered a 'public servant' under Section 2(c)(v) and Section 2(c)(viii) of the Prevention of Corruption Act, 1988 (PC Act).

The High Court had opined that the Resolution Professional performs 'public duty' within the meaning of Section 2(b) of the PC Act and hence is a 'public servant' liable to be prosecuted under the Prevention of Corruption Act (“PC Act”). The impugned judgment was passed by the High Court while rejecting the petition praying for quashing of the entire criminal proceeding instituted against an Insolvency Professional, as well as the FIR registered for the offence under Section 7 (public servant taking gratification other than legal remuneration in respect of an official act) of the PC Act.

Google Appeals To Supreme Court Against NCLAT Order Upholding Rs. 1337.76 Crores Penalty Imposed By CCI

The tech giant Google has filed an appeal before the Supreme Court, challenging the order dated 29.03.2023 passed by the National Company Law appellate Tribunal (“NCLAT”), New Delhi, whereby the imposition of Rs. 1337.76 Crores penalty on Google by the Competition Commission of India (“CCI”) was upheld. Google has been penalized for abusing its dominant position in the Android OS app store market, which resulted in denial of market access for competing search apps.

IBC Overrides Electricity Act; Dues To Secured Creditors At Higher Footing Than Electricity Dues : Supreme Court

Case Title: Paschimanchal Vidyut Vitran Nigam Ltd vs Raman Ispat Private Limited

Citation: 2023 LiveLaw (SC) 534 | 2023 INSC 625

The Supreme Court Bench comprising of Justices S. Ravindra Bhat and Dipankar Datta, has observed that Section 238 of the Insolvency and Bankruptcy Code, 2016 overrides the provisions of the Electricity Act, 2003. It was opined that the provisions of the IBC treat the dues payable to secured creditors are at a higher footing than dues payable to Central or State Government.

In this case, the NCLT had set aside an attachment of the property of the respondent Raman Ispat Pvt. Ltd. (“Corporate Debtor”) which was over electricity charge dues to Paschimanchal Vidyut Vitran Nigam Limited (PVVNL) and held that PVVNL can realise its dues by participating in the liquidation process as per the IBC. The NCLAT also approved this view.

Further, noting that State Tax Officer v. Rainbow Papers Ltd. 2022 LiveLaw (SC) 743 dealt with a case relating to resolution process and not liquidation process, the Court opined that the judgment in Rainbow Papers has to be confined to the facts of that case.

EPFO Employees Must Comply With IBC Timeline For Filing Claims; Default Officers Must Face Action: Supreme Court

Case Title: Employees Provident Fund Organization V. Fanendra Harakchand Munot

Citation: 2023 LiveLaw (SC) 734 | CIVIL APPEAL NO. OF 2023

The Supreme Court Bench comprising Justice Sanjiv Khanna and Justice SV Bhatti, has held that the Commissioner and employees of the Employees Provident Fund Organization (EPFO) must ensure that they comply with the timelines under the Insolvency and Bankruptcy Code, 2016. The Apex Court also stated that in case of failure to comply with the timelines, action must be taken against erring employees.

"..we are of the view that the Commissioner and employees of the EPFO must take steps to ensure that there is compliance with the timelines provided under the Insolvency and Bankruptcy Code, 2016. Failure may have legal consequences. The employees of the EPFO must be aware of the consequences in order to ensure compliance. In case there is dereliction of duty, action should be taken against erring employees in accordance with law."

IBC - Liquidator Can't Cancel Valid Auction On Mere Expectation Of Fetching Higher Price; No Unfettered Discretion: Supreme Court

Case Title: Eva Agro Feeds Private Limited V. Punjab National Bank & Anr., Civil Appeal No(S). 7906/2021

Citation: 2023 LiveLaw (SC) 753

The Supreme Court Bench comprising Justice B V Nagarathna and Justice Ujjal Bhuyan, has held that even though the highest bidder in an auction sale under the Insolvency and Bankruptcy Code, 2016 has no indefeasible right to demand acceptance of his bid, the liquidator, if such a bid is rejected must furnish reasons for the same in the rejection order.

The mere expectation of the Liquidator that a higher price may be obtained is not a good ground to cancel an otherwise valid auction. The Court also held that once an auction is complete, the liquidator does not have absolute or unfettered discretion to cancel the auction, unless it is found that fraud or collusion had vitiated it.

“..while the highest bidder has no indefeasible right to demand acceptance of his bid, the Liquidator if he does not want to accept the bid of the highest bidder has to apply his mind to the relevant factors. Such application of mind must be visible or manifest in the rejection order itself.”

IBC | Cannot Ask Successful Resolution Applicant To Pay Arrears Payable By Corporate Debtor For Grant/Restoration Of Electricity Connection: Supreme Court

Case Title: Tata Power Western Odisha Distribution Limited & Anr. V Jagannath Sponge Private Limited

Citation: 2023 LiveLaw (SC) 788

The Supreme Court has held that under the Insolvency and Bankruptcy Code, 2016 (“IBC”), once the Resolution Plan stands approved by the National Company Law Tribunal (NCLT), the Electricity Department cannot demand payment of arrears, which were payable by the Corporate Debtor, from the Successful Resolution Applicant for restoration/grant of electricity connection.

The Bench comprising Justice Sanjiv Khanna and Justice S.V.N Bhatti, has held that the 'clean slate principle' would stand negated if the Successful Resolution Applicant is asked to pay the arrears payable by the Corporate Debtor for the grant of an electricity connection in her/his name.

IBC- Admitting Claims After Resolution Plan Has Been Accepted By COC Would Make CIRP An Endless Process: Supreme Court

Case Title: M/S. RPS Infrastructure Ltd V. Mukul Kumar

Citation: 2023 LiveLaw (SC) 773 | Civil Appeal No. 5590 of 2021

The Supreme Court Bench comprising bench of Justice Sanjay Kishan Kaul and Justice Sudhanshu Dhulia, has held that admitting claims after the Resolution Plan has been accepted by the Committee of Creditors (COC) under IBC, even though the Adjudicating Authority has yet to approve the plan, would make the Corporate Insolvency Resolution Process (CIRP) an endless process.

The Court was considering whether the claim pertaining to an arbitral award, in appeal under Section 37 of the Arbitration and Conciliation Act, 1996 (Act), could be admitted after the resolution plan had been approved by the COC. “We find it difficult to unleash the hydra-headed monster of undecided claims on the resolution applicant” the Apex Court said while dismissing the plea of the claimant.

“The mere fact that the Adjudicating Authority has yet not approved the plan does not imply that the plan can go back and forth, thereby making the CIRP an endless process. This would result in the reopening of the whole issue, particularly as there may be other similar persons who may jump onto the bandwagon. As described above, in Essar Steel, [1 (2020) 8 SCC 534] the Court cautioned against allowing claims after the resolution plan has been accepted by the COC.”

Homebuyers Who Secure RERA Decrees Can't Be Treated Differently From Other Financial Creditors Under IBC: Supreme Court

The Supreme Court bench comprising Justices S Ravindra Bhat and Aravind Kumar, has held that homebuyers cannot be treated differently from other "financial creditors" under the Insolvency and Bankruptcy Code (IBC) 2016 just because they have secured orders from the authority under the Real Estate (Regulation and Development) Act 2016.

The bench set aside an order of the National Company Law Appellate Tribunal which held that beneficiary of orders of the RERA Authority should be treated differently from other home buyer allottees. Home buyers who did not approach authorities under RER Act were given the benefit of 50% better terms than that given to those who approached RERA or who were decree holders.

IBC | Doctrine Of Election Can't Prevent Financial Creditor From Initiating CIRP Against Corporate Debtor: Supreme Court

Case Title: Tottempudi Salalith v State Bank Of India & Ors.

Citation: 2023 LiveLaw (SC) 914

The Supreme Court has held that the 'Doctrine of Election' cannot be applied to prevent a Financial Creditor from approaching the National Company Law Tribunal (NCLT) for initiation of Corporate Insolvency Resolution Process (“CIRP”) against a Corporate Debtor, under the Insolvency and Bankruptcy Code, 2016 (IBC).

The Doctrine of Election is embodied in the law of evidence, which bars prosecution of the same right in two different fora based on the same cause of action.

The Bench comprising Justice Aniruddha Bose and Justice Vikram Nath, has observed, “The question of election between the fora for enforcement of debt under the 1993 Act and initiation of CIRP under the IBC arises only after a recovery certificate is issued. The reliefs under the two statutes are different and once CIRP results in declaration of moratorium, the enforcement mechanism under the 1993 Act or the SARFAESI Act gets suspended. In such circumstances, after issue of recovery certificate, the financial creditor ought to have option for enforcing recovery through a new forum instead of sticking on to the mechanism through which recovery certificate was issued.

IBC | Time-Barred Recovery Certificate Can Be Segregated From Composite Claim Under Section 7: Supreme Court

Case Title: Tottempudi Salalith v State Bank Of India & Ors.

Citation: 2023 LiveLaw (SC) 914

The Supreme Court Bench comprising Justice Aniruddha Bose and Justice Vikram Nath, has held that in a composite application filed under Section 7 of the Insolvency and Bankruptcy Code, 2016 (“IBC”) based on several Recovery Certificates issued by Debt Recovery Tribunal, if any of the Recovery Certificate(s) is barred by limitation, then the same can be segregated from composite claim. However, as the decree (Recovery Certificate) would still be alive, it can be treated as a claim made in Corporate Insolvency Resolution Process (CIRP) in view of Public Announcement.

In 2019, a composite application under Section 7 of IBC was filed based on three recovery certificates, one of which dated back to 2015 and was hence barred by limitation.

“The application with respect to the two recovery certificates issued in the year 2017 is maintainable. In the event the Appellate Tribunal is of opinion that the CIRP could not lie so far as the recovery certificate of 2015 is concerned, as the decree would be still alive, the claim based on the said recovery certificate could be segregated from the composite claim and the Committee of Creditors shall, in that event, treat the sum reflected in the said recovery certificate as part of the claims made in pursuance of the public announcement. This direction we are issuing in exercise of our jurisdiction under Article 142 of the Constitution of India”, the Bench held.

IBC Resolution Plan Can't Ignore Government Dues: Supreme Court Dismisses Review Petitions Against 'Rainbow Papers'

Case title: Sanjay Agarwal v. State Tax Officer

Citation: 2023 LiveLaw (SC) 939

The Supreme Court has dismissed a batch of review petitions filed against a 2022 judgment which held that the definition of a secured creditor under the Insolvency and Bankruptcy Code, 2016 (“IBC”) 2016 included any government or governmental authority and that a resolution plan which ignored dues to the government was liable to be rejected.

A bench comprising Justices AS Bopanna and Justice Bela M. Trivedi was considering five review petitions filed against the 2022 judgment in State Tax Officer v. Rainbow Papers Ltd 2022 LiveLaw (SC) 743 delivered by a bench comprising Justices Indira Banerjee (since retired) and AS Bopanna.

“The submissions made by the counsels for petitioners that the court in the impugned judgment had failed to consider the waterfall mechanism as contained in Section 53 and failed to consider other provisions of IBC are factually incorrect. As evident from a bare reading of the judgment, the court had considered not only the waterfall mechanism under Section 53 but also other provisions of IBC for deciding the priority for the purpose of distributing proceeds from the sale as liquidation assets. In view of aforestated legal position, we are of the opinion the judgment sought to be reviewed does not fall within scope and ambit of review. So we're dismissing all the review petitions.”

IBC Resolution Plan Can't Ignore Government Dues: Supreme Court Dismisses Review Petitions Against 'Rainbow Papers'

Case title: Sanjay Agarwal v. State Tax Officer

Citation: 2023 LiveLaw (SC) 939

The Supreme Court has dismissed a batch of review petitions filed against a 2022 judgment which held that the definition of a secured creditor under the Insolvency and Bankruptcy Code, 2016 (“IBC”) 2016 included any government or governmental authority and that a resolution plan which ignored dues to the government was liable to be rejected.

A bench comprising Justices AS Bopanna and Justice Bela M. Trivedi was considering five review petitions filed against the 2022 judgment in State Tax Officer v. Rainbow Papers Ltd 2022 LiveLaw (SC) 743 delivered by a bench comprising Justices Indira Banerjee (since retired) and AS Bopanna.

“The submissions made by the counsels for petitioners that the court in the impugned judgment had failed to consider the waterfall mechanism as contained in Section 53 and failed to consider other provisions of IBC are factually incorrect. As evident from a bare reading of the judgment, the court had considered not only the waterfall mechanism under Section 53 but also other provisions of IBC for deciding the priority for the purpose of distributing proceeds from the sale as liquidation assets. In view of aforestated legal position, we are of the opinion the judgment sought to be reviewed does not fall within scope and ambit of review. So we're dismissing all the review petitions.”

IBC | Tax & Customs Dues To Be Paid As Per Waterfall Mechanism Under Section 53: Supreme Court

Case Title: Principal Commissioner of Customs V Rajendra Prasad Tak & Ors.

Citation: 2023 LiveLaw (SC) 952

The Supreme Court Bench comprising Justice Sanjiv Khanna and Justice S.V.N. Bhatti, has clarified that the dues of the Central Board of Indirect Taxes & Customs, Department of Revenue, will be paid as per the waterfall mechanism given under Section 53 of the Insolvency and Bankruptcy Code, 2016 (“IBC”).

Section 53 of IBC provides the order of priority in which proceeds from sale of liquidation assets is to be distributed amongst Corporate Debtor's creditors, stakeholders etc.

Supreme Court Upholds Constitutionality Of IBC Provisions Relating To Personal Guarantors; Says Adjudicatory Role Can't Be Read Into Sec 97

Case Title: Surendra B. Jiwrajika and Anr. vs. Omkara Assets Reconstruction Private Limited

Case No.: SLP(C) No. 016464/2021

The Supreme Court Bench comprising Chief Justice DY Chandrachud, Justices JB Pardiwala and Justice Manoj Misra, has upheld the constitutionality of the provisions of the Insolvency and Bankruptcy Code, 2016 (IBC) relating to Personal Guarantors' Insolvency Resolution, which were introduced through the amendments made in 2019.

The Court held that these provisions (Section 95 to 100 of IBC) cannot be held as unconstitutional for not affording an opportunity of hearing to the personal guarantors before the insolvency petition filed by creditors is admitted against them and the moratorium is automatically applied against them as soon as the insolvency petition is filed.

"The statute (IBC) does not suffer from any manifest arbitrariness to violate Art 14 of the Constitution,"

The bench further held that it cannot read an adjudicatory role into these provisions and that the entire process of timelines would be rendered negatory if the role of adjudicator is changed. For the Court to change the adjudicatory role envisaged under these provisions would amount to "rewriting the legislative functions", the Court said.

IBC | No Casual Interference With Commercial Wisdom Of CoC: Supreme Court Sets Aside NCLT Direction To Reevaluate Corporate Debtor's Assets

Case Title: Ramkrishna Forgings Limited v Ravindra Loonkar & Anr.

Citation: 2023 LiveLaw (SC) 1007

The Supreme Court bench comprising Justice Vikram Nath and Justice Ahsanuddin Amanullah, has set aside an order whereby the National Company Law Tribunal (“NCLT”) kept the approval of a resolution plan in abeyance while directing an Official Liquidator to conduct re-valuation of the Corporate Debtor's assets. Consequently, the order of National Company Law Appellate Tribunal (“NCLAT”) affirming the NCLT's order has also been set aside.

An application under Section 30(6) of the Insolvency and Bankruptcy Code, 2016 (“IBC”) was filed by the Resolution Professional before NCLT, seeking approval of the resolution plan submitted by Successful Resolution Applicant(SRA). The valuation of Corporate Debtor's assets was already done Resolution Professional as per the provisions of IBC and its Regulations. However, the NCLT kept the resolution plan in abeyance and appointed an Official Liquidator to conduct re-valuation of assets.

The Bench has held, “In the case at hand, we find that there was no occasion before the Adjudicating Authority NCLT to be swayed only on the per se ground that the hair-cut would be about 94.25% and that it was not convinced that the fair value of the assets have been projected in proper manner as the bid of the appellant was very close to the fair value of the assets of ACIL. Ordering revaluation of the assets, by the OL, Ministry of Corporate Affairs, Government of India, in-charge of the particular area, cannot be justified.”

IBC | For Rejection Of A Resolution Plan Under Section 31(2), NCLT Must Pass A Reasoned Order: Supreme Court

Case Title: Ramkrishna Forgings Limited v Ravindra Loonkar & Anr.

Citation: CIVIL APPEAL No.1527 OF 2022

The Supreme Court bench comprising Justice Vikram Nath and Justice Ahsanuddin Amanullah, has held that when the NCLT exercises its power under Section 31(2) of the Insolvency and Bankruptcy Code, 2016 to not approve a resolution plan, then a reasoned order must be passed. It was emphasized that recording of cogent reasons while passing an order is the duty of Courts and Tribunals.

The Supreme Court has set aside an order whereby the NCLT kept the approval of a resolution plan in abeyance while directing an Official Liquidator to conduct re-valuation of the Corporate Debtor's assets. Consequently, the order of NCLAT affirming the NCLT's order has also been set aside.

The Bench has further cautioned that the NCLT may direct re-valuation of Corporate Debtor's assets when necessary, but strictly within the domain permitted by IBC.

The Bench has held, “It is worthwhile to note that the Adjudicating Authority has jurisdiction only under Section 31(2) of the Code, which gives power not to approve only when the Resolution Plan does not meet the requirement laid down under Section 31(1) of the Code, for which a reasoned order is required to be passed. We may state that the NCLT's jurisdiction and powers as the Adjudicating Authority under the Code, flow only from the Code and the Regulations thereunder.”

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.

IBC- Properties Sold In Auction Sale Before Declaration Of Moratorium Can't Be Treated As Liquidation Asset: Supreme Court

Case Title: Haldiram Incorporation Pvt. Ltd. v Amrit Hatcheries Pvt. Ltd.

Citation: 2023 LiveLaw (SC) 1029

The Supreme Court bench comprising Justices Aniruddha Bose and Justice Vikram Nath, has observed that the properties of a defaulting borrower sold in an auction sale could not be treated as liquidation assets if the sale was concluded before the declaration of a moratorium under the Insolvency and Bankruptcy Code, 2016 (“IBC”).

The Bank had advanced loan to Corporate Debtor and the latter mortgaged two sets of properties to the bank. On default of payment, one of the properties were sold to the Auction Purchaser via auction sale. While the Auction Purchaser completed the payment on 16.08.2019, Corporate Debtor was admitted into CIRP on 20.08.2019. This also resulted in the declaration of a moratorium by the NCLT.

The NCLT held the issue of the sale certificate and handing over of the property as illegal and the subject property should continue to be assets of the Corporate Debtor. The NCLT had proceeded on the basis that sale was not concluded. Thus, while commencing the resolution process, the Liquidator was directed to take possession of the subject properties. When challenged, the NCLAT dismissed the appeal. The Supreme Court has set aside the order passed by the NCLAT.

NCLAT

Nature Of Financial Debt Doesn't Change Upon Breach Of Consent Terms: NCLAT Delhi

Case Title: Priyal Kantilal Patel v IREP Credit Capital Pvt. Ltd. & Anr.

Case No.: Company Appeal (AT) (Insolvency) No. 1423 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 the nature of financial debt would not change on account of breach of the consent terms. The Bench has upheld the initiation of CIRP against a Corporate Debtor upon a subsequent Section 7 petition, which was filed after the Corporate Debtor breached the consent terms entered into in the earlier Section 7 petition.

“The mere fact that in earlier company petition, consent terms was arrived, which consent terms was breached by the corporate debtor, the financial debt which was claimed by the financial creditor would not be wiped out nor the nature and character of financial debt shall be changed on account of breach of the consent terms. Permitting such interpretation shall be giving premium to the corporate debtor who breach the consent terms.”

NCLAT Delhi Sets Aside The Order Of Private Sale Of Bhuvee Stenovate Private Limited

Case Title: State Bank Of India V. Bhuvee Stenovate Pvt. Ltd. & Ors.

Case No: Comp. App. (AT) (Ins.) No. 1013 of 2022

The National Company Law Appellate Tribunal (NCLAT) Bench has set aside the order of NCLT Kolkata which permitted a private sale of Bhuvee Stenovate Private Limited for an amount of Rs.61.05 Crores, even though the request for Private Sale had been made by the Intervener purchaser Laser Solar LLP.

The order and consequent sale was set aside by the NCLAT Bench, while laying down the law relating to sale proceeds during liquidation. It was held as under:

· Liquidator has to conduct the Private Sale and give opportunity to others to compete

· Liquidator has to seek permission from the Adjudicating Authority to proceed with a Private Sale

· Liquidator has to prepare a strategy to approach interested buyers for assets to be sold by a Private Sale.

· Adjudicating Authority could not have concluded the sale of the Corporate Debtor without giving an opportunity to the liquidator to take steps for Private Sale.

Assets Of Subsidiary Company Cannot Be Dealt With In CIRP Of Holding Company: NCLAT Delhi

Case Title: Greater Noida Industrial Development Authority (GNIDA) v Roma Unicon Designex Consortium

Case No.: Company Appeal (AT) (Insolvency) No. 180 of 2022

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson), Dr. Alok Srivastava (Technical Member) and Mr. Barun Mitra (Technical Member), has held that the assets of the Subsidiary Company cannot be dealt with in the CIRP of Holding Company. A parcel of land was leased by Greater NOIDA Authority to the subsidiary of Corporate Debtor (Holding Company). In the CIRP of Corporate Debtor, the approved Resolution Plan proposed to transfer the subsidiary's land to the Successful Resolution Applicant, without obtaining Greater NOIDA Authority's consent. The Bench has set aside the orders approving the resolution plan of the Successful Resolution Applicant.

“Misconceived, Not Maintainable”: NCLAT Delhi Dismisses Appeal Filed By IBBI

Case Title: Insolvency & Bankruptcy Board of India v GTL Infrastructure & Ors.

Case No.: Company Appeal (AT) (Ins) No. 103 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Rakesh Kumar Jain (Judicial Member) and Mr. Naresh Salecha (Technical Member), has dismissed an appeal filed by the Insolvency and Bankruptcy Board of India (“IBBI”), challenging the dismissal of a Section 7 petition in a matter to which IBBI was not a party. The IBBI filed the appeal while contending that the petition was dismissed upon a wrong interpretation of Section 7 by the Adjudicating Authority. The NCLAT Bench observed that IBBI is not aggrieved by the Adjudicating Authority's order and has nothing to do with the litigation between the Financial Creditor and Corporate Debtor.

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.”

Principal Amount Paid In Full, Section 9 Application Not Maintainable For Recovery Of Interest: NCLAT Delhi

Case Title: Rohit Motawat v Madhu Sharma

Case No.: Comp. App. (AT) (Ins) No. 1152 of 2022

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 an application under Section 9 of IBC being pursued only for interest component, while principal amount has been paid in full, is not maintainable. The spirit of IBC is resolution of debt and not for 'recovery'. Reliance was placed on Karnataka High Court judgment in Jyothi Limited Vs. Boving Fouress Limited, Company Petition No. 48 of 1998, wherein it was held that interest cannot be claimed over an invoice which is a unilateral document, unless it is signed by the parties.

No Acknowledgement Of Liability Based On An Unrealized Cheque: NCLAT Chennai

Case Title: M/s. Primee Silicones (Chennai) Pvt. Ltd. v M/s. UCAL Fuel Systems Ltd.

Case No.: Company Appeal (AT) (CH) (Ins.) No. 299 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 a cheque which has not been encashed, cannot amount to an 'acknowledgement of liability' in terms of Section 18 of the Limitation Act, 1963.

NCLAT Extends Benefit Of Limitation Computation To Appeals Filed Between 01.11.2022 To 23.12.2022

F.No. 23/4/2022-Estt./NCLAT

On 24.12.2022 the National Company Law Appellate Tribunal (“NCLAT”) had issued fresh directions for computation of limitation for filing of appeals before NCLAT. Earlier the benefit of order dated 24.12.2022 was only available to appeals filed on and after 24.12.2022. However, the NCLAT vide an Order dated 21.02.2023 has extended the benefit of Order dated 24.12.2022 to appeals which have been filed between 01.11.2022 to 23.12.2022.

Directions For Computation Of Limitation

On 24.12.2022, the NCLAT had issued fresh directions for computation of limitation for filing of appeals before NCLAT. The directions are as follows:

• The Limitation shall be computed from the date of e-filing.
• The hard copy has to be filed within 7 days of e-filing. However, the Competent Authority is at liberty to notify to extend the period of filing hard copy in case of any unforeseen exigency.
• In a case where hard copy is filed after 7 days, the appeal will be placed before the Tribunal for appropriate order.
• The requirement of filing Appeals by electronic mode shall continue along with mandatory filing of the Appeals as per Rule 22 of the NCLAT Rules, 2016.

NCLAT Delhi Stays Insolvency Proceedings Against Zee Entertainment Enterprises Ltd.

Case Title: Punit Goenka v Indusind Bank Ltd. & Anr.

Case No.: Company Appeal (AT) (Insolvency) No. 232/2023.

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Barun Mitra (Technical Member), has stayed the NCLT order dated 22.02.2023, whereby Corporate Insolvency Resolution Process (“CIRP”) was initiated against Zee Entertainment Enterprises Ltd. Zee Entertainment Enterprises Ltd. (formerly Zee Telefilms Ltd.) is an Indian media conglomerate owned by Essel Group, engaged in media and entertainment business. Zee had given India its first private satellite TV channel in 1992 and now also runs Over The Top (OTT) online streaming platform named Zee5.

Defences Of 'Pre-Existing Dispute' Or 'No Amount Due' Can Be Raised Directly In Reply To Section 9 Application: NCLAT Delhi

Case Title: Greymatter Entertainment Pvt. Ltd. v Pro Sportify Pvt. Ltd.

Case No.: COMPANY APPEAL (AT) (INSOLVENCY) NO. 1043 of 2021

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson) and Ms. Shreesha Merla (Technical Member), has held that IBC does not prevent the Corporate Debtor from establishing defences of 'Pre-existing dispute' or 'No amount due' through its Reply to Section 9 application and supporting documents, even if it failed to respond to the Section 8 Demand Notice within 10 days of receipt.

Shifting Entire Blame On IRP Not Justified; Creditors Must Also Play Catalytic Role In CIRP: NCLAT Delhi

Case Title: Shri Guru Containers v Jitendra Palande

Case No.: Company Appeal (AT) (Insolvency) No.106 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench comprising of Justice Ashok Bhushan (Judicial Member) and Shri Barun Mitra (Technical Member), has held that creditors must not shift the entire blame on the IRP on grounds of non-performance of duty and make him the scapegoat. It is equally important for the creditors to play a catalytic role in the insolvency resolution process given the creditor-driven regime of IBC. The rigours of similar standards of discipline should also apply on the creditors.

NCLAT Delhi Sets Aside Rs. 25000 Cost Imposed On Resolution Professional By AA

Case Title: Sanjai Kumar Gupta v Gouri Prasad Goenka

Case No.: Company Appeal (AT) (Insolvency) No.70 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Barun Mitra (Technical Member), has set aside an order whereby the Adjudicating Authority had imposed a cost of Rs. 25,000/- on Resolution Professional for allegedly filing a frivolous application. The Bench observed that the orders of the Adjudicating Authority depicted that Suspended Director was neither cooperating with the Resolution Professional nor complying with the directions of Adjudicating Authority. Further, the Adjudicating Authority directed personal appearance of Suspended Director twice and noted the non-cooperation of the latter. The sudden turn of events where the application was rendered infructuous and frivolous by the Adjudicating Authority is not explained in the order dated 02.12.2022.

NCLAT Delhi Upholds Liquidation Of M/S Ajanta Offset And Packaging Limited

Case Title: Govind Prasad Todi & Anr. v Satya Narayan Guddeti & Ors.

Case No.: Company Appeal (AT) (Insolvency) No. 1125 of 2022

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Barun Mitra (Technical Member), has directed the liquidation of the Corporate Debtor, M/s Ajanta Offset and Packaging Limited. Bench had also set aside the approval of the Resolution Plan by the Suspended Board of Directors. It has been held that the Successful Resolution Applicants, being the suspended promoters of the Corporate Debtor, cannot avail the exemptions from ineligibility under clause (c) and (h) of Section 29A of the Code. They could not submit a Resolution plan by registering as an MSME in view of section 240A of the Code after the initiation of the Corporate Insolvency Resolution Process.

AA Empowered To Direct Tenant To Vacate Premises Of Corporate Debtor: NCLAT Delhi

Case Title: M/s. Jhanvi Rajpal Automotive Pvt. Ltd. v R.P. of Rajpal Abhikaran Pvt. Ltd. & Anr.

Case No.: Company Appeal (AT) (Insolvency) No. 1417 of 2022

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson), Dr Alok Srivastava (Technical Member) and Mr. Barun Mitra (Technical Member), has held that the Adjudicating Authority is empowered under Section 60(5) of IBC to direct a tenant to vacate the property of Corporate Debtor. The NCLAT Bench has upheld the decision of Adjudicating Authority directing the Tenant to vacate the Corporate Debtor's property, which impeded implementation of the approved Resolution Plan.

NCLAT Delhi Upholds Dismissal Of Wave Megacity's Section 10 Application By AA

Case Title: Wave Megacity Centre Private Limited v Rakesh Taneja & Ors

Case No.: Company Appeal (AT) (Insolvency) No. 918 of 2022

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson) and Mr. Barun Mitra (Technical Member), had upheld the dismissal of Section 10 of IBC application on behalf of Wave Megacity Centre by the Adjudicating Authority. The Bench observed that the Adjudicating Authority is not obliged to admit application under Section 10 of IBC if the same has been filed fraudulently upon malicious intent.

When COC Approves A Resolution Plan, It Is Presumed To Be Viable And Feasible: NCLAT Delhi

Case Title: Rajesh Kumar & Ors. v Rabindra Kumar Mintri & Anr.

Case No.: Company Appeal (AT) (Insolvency) No.1489 of 2022

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson), Shri Kanthi Narahari (Judicial Member) and Shri Barun Mitra (Technical Member), has held that when the Committee of Creditors (CoC) approves a Resolution Plan in its commercial wisdom, it is presumed that the Resolution Plan is viable and feasible. The Bench further observed that it is incumbent upon the Authorized Representative of the homebuyers to obtain instructions to vote for any agenda item where CoC obtain votes. Where there is no voting of the CoC in an agenda item, the Authorized Representative's opinion can be taken note of and considered in the CoC meeting.

NCLAT Issues Fresh Directions For Computation Of Limitation In Filing Of Appeals, Withdraws Earlier Directions

F.No. 23/4/2022-Estt./NCLAT

The National Company Law Appellate Tribunal (“NCLAT”) vide an Order dated 24.12.2022 has issued fresh directions for computation of limitation for filing of appeals before NCLAT. The period of limitation shall be computed from the date of e-filing and hard copy has to be filed within 7 days of e-filing. However, the Competent Authority is at liberty to extend the period of filing hard copy in case of any unforeseen exigency. If hard copy is filed after 7 days, the appeal will be placed before the Tribunal for appropriate order. Further, the requirement of filing Appeals by electronic mode shall continue along with mandatory filing of the Appeals as per Rule 22 of the NCLAT Rules, 2016.

The directions are effective from 24.12.2022 onwards. NCLAT has also recalled its previous circular dated 21.10.2022 bearing F.No.10/37/2018-NCLAT regarding computation of limitation.

Google V Competition Commission: NCLAT Directs Google To Deposit 10% Of Penalty As Interim Measure

Case Title: Google LLC & Anr. v Competition Commission of India

Case No.: Competition Appeal (AT) (ND) No.01 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Rakesh Kumar (Judicial Member) and Dr. Alok Srivastava (Technical Member), has admitted Google's appeal against CCI order dated 20.10.2022, subject to deposit of 10% of penalty amount of Rs. 1337.76 Crores. The Bench has declined to grant any interim relief. The appeal has been filed by Google against the order of Competition Commission of India (CCI), wherein it was concluded that Google perpetuated its dominant position in the online search market, resulting in denial of market access for competing search apps. Further, Google abused its dominant position in the Android OS app store market, to protect its position in online general search. The appeal before NCLAT is next listed on 03.04.2023 for final hearing.

Re-Constituted Bench Cannot Pass An Order Without Re-Hearing The Parties: NCLAT Delhi

Case Title: Rajesh Narang v Durha Vitrak Pvt. Ltd.

Case No.: COMPANY APPEAL (AT)(INS) NO.612/2021

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Rakesh Kumar (Judicial Member) and Dr. Ashok Kumar Mishra (Technical Member), has held that after re-constitution of Bench no order should be passed without re-hearing the matter. It was further observed that when the first order was passed on 20.05.2021, one of the Technical Member was not a party at the time of hearing and reserving orders. For this reason alone, the order dated 20.05.2021 was declared void and fresh hearing was conducted on 31.05.2021. The Bench observed that the order dated 20.05.2021 was reproduced in order dated 31.05.2021, without further hearing or rehearing. The Bench set aside the Order of liquidation dated 31.05.2021 and remitted the matter back to Adjudicating Authority to re-examine and consider changing the Resolution Professional.

AA Obliged To Direct For Liquidation Only If COC'S Decision To Liquidate Is In Accordance With IBC: NCLAT Delhi

Case Title: Hero Fincorp Limited v M/s Hema Automotive Private Limited

Case No.: Company Appeal (AT) (Insolvency) No.1540 of 2022

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson) and Ms. Shreesha Merla (Technical Member), held that the Adjudicating Authority's obligation to direct for liquidation shall arise only when the CoC's decision to liquidate is in accordance with IBC. The CoC resolved to liquidate the Corporate Debtor after preparation of the Information Memorandum and before the period for inviting Expression of Interest could expire. The NCLAT Bench upheld the Adjudicating Authority's decision to reject the liquidation application.

NCLAT Delhi Upholds Removal Of Shree Ram Urban Infrastructure's Resolution Professional By AA

Case Title: Srigopal Choudary v SREI Equipment Finance Ltd.

Case No.: Company Appeal (AT) (Ins) No. 1443 of 2022

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Rakesh Kumar (Judicial Member) and Ms. Shreesha Merla (Technical Member), has upheld the Adjudicating Authority's decision to remove the Resolution Professional of Shree Ram Urban Infrastructure Ltd. The Bench has held that an authority empowered to appoint also has the right to remove/dismiss. Further, if the Resolution Professional is not convening the meeting of CoC for his replacement, then Adjudicating Authority can invoke its inherent jurisdiction and replace the Resolution Professional.

Google Play Store Dispute: NCLAT Delhi Directs Google To Deposit 10% Of Penalty Amount

Case Title: Alphabet Inc. & Ors. v Competition Commission of India & Ors.

Case No.: Competition App. (AT) No. 4 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Rakesh Kumar (Judicial Member) and Dr. Alok Srivastava (Technical Member), has admitted Google's appeal against CCI order dated 25.10.2022 subject to deposit of 10% of penalty amount of Rs. 936.44 Crores. The Bench has declined to grant any interim relief. The matter is next listed on 17.04.2023.

On 25.10.2022, the CCI Bench by invoking its powers under Section 27 of the Competition Act, had imposed monetary penalty of Rs. 936.44 Crore on Google for abusing its dominant position with respect to its Play Store policies, apart from issuing a cease-and-desist order. The Commission had also directed Google to modify its conduct within a defined timeline. In January 2023, Google filed an appeal before the NCLAT, challenging the Order passed by CCI imposing a penalty of Rs. 936.44 Crore on Google.

“No Concept Of Automatic Restoration Of Any Water Connection”: NCLAT Delhi

Case Title: Maharashtra Industrial Development Corporation v Bhadrashree Steel & Power Ltd. & Ors.

Case No.: Company Appeal (AT) (Insolvency) No. 1497 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 water connection cannot be automatically restored to a Successful Resolution Applicant. A proper application has to be made seeking restoration of water connection.

“We only observe that there is no concept of automatic restoration of any water connection and a proper application is required to be made following the procedure and only benefit Successful Resolution Applicant can claim is extinguishment of the dues which are not part of the Resolution Plan.”

NCLAT Delhi Upholds Dismissal Of Application Seeking Restraint On Oyo From Proceeding With IPO

Case Title: Jagadish v Oyo Hotels & Homes Pvt. Ltd.

Case No.: Company Appeal (AT) (Insolvency) No. 1408 of 2022

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson) and Mr. Barun Mitra (Technical Member), has upheld the Adjudicating Authority's order rejecting applications filed by Operational Creditor to direct Oyo not to proceed with its IPO and furnish its financial statements. The reliefs sought by the Operational Creditor have been regarded as premature, since CIRP has not yet been initiated against Oyo. Oyo Hotels & Homes Pvt. Ltd. (“Corporate Debtor”) owns and operates a chain of hotels across India under the banner 'OYO'. Recently, the Corporate Debtor announced Initial Public Offering (IPO) of its shares and the IPO is still under process.

'Filed Only For Recovery Of Balance Interest Amount': NCLAT Delhi Upholds Dismissal Of Section 9 Petition

Case Title: Permali Wallace Pvt. Ltd. v Narbada Forest Industries Pvt. Ltd.

Case No.: Company Appeal (AT) (Insolvency) No. 36 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson) and Mr. Barun Mitra (Technical Member), has held upheld the Adjudicating Authority's dismissal of a Section 9 petition, which was filed merely for recovery of balance interest amount in view of a settlement agreement and not for resolution of the Corporate Debtor. The Bench placed reliance on the Supreme Court judgment in Swiss Ribbon Pvt. Ltd. v Union of India, (2019) 4 SCC 17, wherein it was held that IBC is not a recovery proceeding.

Section 17 Of Limitation Act Inapplicable Where Limitation Is Prescribed For Appeal: NCLAT Delhi

Case Title: Maharashtra State Electricity Distribution Company Ltd. v NRC Ltd. & Anr.

Case No.: Company Appeal (AT) (Insolvency) No. 13 of 2023.

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson) and Mr. Barun Mitra (Technical Member), has held that Section 17(1) of Limitation Act, 1963 deals with period of limitation in the case of any suit or application. On the face of it, Section 17(1)(c) does not come into play in an Appeal when limitation is prescribed for an Appeal.

Landowner In A Development Agreement Not A Financial Creditor: NCLAT Delhi

Case Title: Ashoka Hi-Tech Builders Pvt. Ltd. v Sanjay Kundra & Anr.

Case No.: Company Appeal (AT) (Insolvency) No. 46 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson) and Mr. Barun Mitra (Technical Member), has held that a landowner in a development agreement is not a financial creditor within the meaning of Section 5(8) of IBC and cannot be included in the Committee of Creditors. The Bench observed that the Development Agreement clearly states that the Landowner was a collaborator in the development agreement and not a financial creditor. There was no disbursement for time value of money by the Landowner within meaning of Section 5(8) of the IBC.

Operational Creditors Only Entitled To Minimum Of The Liquidation Value: NCLAT Delhi

Case Title: Dharmindra Constructions Pvt. Ltd. & Anr. v Rajendra Kumar Jain

Case No.: Company Appeal (AT) (Insolvency) No.1477 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 Operational Creditors are only entitled for minimum of the liquidation value.

The Bench observed that the Liquidation value of the Appellant/Operational Creditor was Nil. Even the Operational Creditors which are Government and whose verified claim is Rs. 295.18 Crores, were paid NIL. The requirement for the obligation for payment of amount to the Operational Creditor is under Section 30(2)(b) and the plan had not violated the said provision.

No Condonation Beyond 45 Days, IBC Overrides Limitation Act : NCLAT Chennai

Case Title: M/s. Platinum Rent A Car (India) Pvt. Ltd. v M/s. Quest Offices Limited

Case No.: Comp App (AT) (CH) (Ins) No.448/2022

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 Section 238 of IBC overrides Section 12 of the Limitation Act, 1963. The Bench declined to condone a delay of 55 days in filing of appeal, which was caused due to time taken to obtain certified copy of order. The Bench further held that Rules of Procedure neither create any right in favour of a person, nor create a Cause of Action. If a Statute requires a certain remedy to be exercised in a particular manner and time, then the same cannot be exercised in any other manner except for the one specified.

After Adoption Of Swiss Challenge Method, RA Not Allowed To Submit Revised Plan: NCLAT Delhi

Case Title: Jindal Stainless Ltd. v Mr. Shailendra Ajmera

Case No.: Comp. App. (AT) (Ins.) No. 1058 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 after adoption of Swiss Challenge Method to find out the best plan, one Resolution Applicant cannot be allowed to submit a revised plan. The Bench placed reliance on the Supreme Court judgment in Ngaitlang Dhar vs. Panna Pragati Infrastructure Private Limited & Ors., Civil Appeal Nos. 3665-3666 of 2020, and held that after adoption of Swiss Challenge Method to find out the best plan, one Resolution Applicant cannot be allowed to submit a revised plan.

The Bench observed that the decision of CoC to vote on the Resolution Plan after completion of Challenge Process and not to further accept any modification of the plan, should not be interfered with. The Application was filed by Shyam Sel and Power Ltd. on 07.08.2022, when CoC had already resolved the vote on all the plans and voting had also commenced w.e.f. 07.08.2022.

Withdrawal Application U/S 12a Can't Be Entertained After Approval Of Resolution Plan By COC: NCLAT Delhi

Case Title: Hem Singh Bharana v M/s Pawan Doot Estate Pvt. Ltd. & Ors.

Case No.: Company Appeal (AT) (Insolvency) No.1481 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 once the Committee of Creditors approve a resolution plan, no withdrawal application under Section 12A of IBC can be entertained. Approval of a Resolution Plan by the CoC prohibits the Resolution Applicant to modify or withdraw from the Plan, the same embargo is placed on CoC from changing its stand. It was observed that the Supreme Court in Ebix Singapore laid down that after approval by the CoC of a Resolution Plan, CoC itself is bound by its decision and cannot be allowed to go back from its decision and pass any other resolution.

NCLAT Rejects Reliance Capital's Creditor Plea To Vacate Status Quo Order

Case Title: Vistra ITCL v. Torrent Investments

Case No.: CA(AT)(Ins) 87/2023

The National Company Law Appellate Tribunal (NCLAT), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson) and Mr. Barun Mitra (Technical Member), disposed off the appeal filed by the Reliance Capital Creditor namely Vistra ITCL against the NCLT Mumbai order dated 23.01.2023. Torrent Investment which emerged as the successful bidder for Reliance Capital with a bid of Rs. 8640 Crores, filed an application before NCLT Mumbai challenging the fresh revised bid of Rs. 9400 Crores submitted by Hinduja Group and the NCLT Mumbai vide its order dated 03.01.2023 directed to maintain status quo.

Subsequently, the COC of Reliance Capital decided to hold another round of auction which was challenged by Torrent Investment before NCLT Mumbai. NCLT Mumbai heard the parties reserved the order on 23.01.2023 and directed the parties to maintain the status quo regarding the CIRP of Reliance Capital until the order is pronounced in the week commencing 30^th January. Vistra ITCL contended that NCLT cannot interfere with the COC commercial wisdom to approve an extended round of challenge for the Prospective Resolution Applicants of Reliance Capital. The NCLAT Bench was not inclined to pass any interim order and thereafter Vistra ITCL sought permission to withdraw the appeal and accordingly, the appeal was dismissed as withdrawn.

Benefit U/S 10A Of IBC Can Only Be Claimed When Default Occurs During Prohibited Period: NCLAT Delhi

Case Title: Vishal Agarwal v ICICI Prudential Real Estate AIF-I & Anr.

Case No.: Company Appeal (AT) (Insolvency) No. 1016 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 benefit under Section 10A of IBC can only be claimed when there is clear default during the prohibited period. The Bench upheld admission of a Section 7 petition wherein default had occurred prior to 25.03.2020.

Shareholders Have No Locus To Challenge The Initiation Of CIRP Against Corporate Debtor: NCLAT Chennai

Case Title: Nirej Vadakkedathu Paul v Sunstar Hotels and Estates Private Limited

Case No.: Company Appeal (AT) (CH) (Ins.) No. 142 of 2022.

The National Company Law Appellate Tribunal (“NCLAT”), Chennai Bench, comprising of Justice M. Venugopal (Judicial Member) and Shri Naresh Salecha (Technical Member), has held that shareholders of Corporate Debtor have no locus to challenge the initiation of CIRP against the Corporate Debtor. The Bench has upheld the initiation of CIRP against M/s McDowell Holdings Limited.

NCLAT Delhi Upholds Remitting Of Resolution Plan Back To COC For Compliance Of Sec 30(2) IBC

Case Title: Noble Marine Metals Co Wll V Kotak Mahindra Bank Limited & Ors.

Case No.: Company Appeal (AT) (Insolvency) No. 653 of 2022.

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson) and Ms. Shreesha Merla (Technical Member), has upheld the order of Adjudicating Authority whereby a Resolution Plan was remitted back to the Committee of Creditors for making changes, only to the extent of a clause which provided for mandatory release of the personal guarantee given by the Promoters of the Corporate Debtor. The Bench held that of a Resolution Plan does not satisfy the parameters of Section 30(2)(e) of IBC, then the same can be sent back to CoC for review.

'Assets', Have Proved To Be `Fictitious'/`Fraudulent', Created In The`Books Of Accounts', With An Intent To `Defraud' The 'Creditors'; NCLAT Chennai

Case Title: Mr. Shibu Job Cheeran & Ors. v Mr. Ashok Velamur Seshadri

Case No.: Company Appeal (AT) (CH) (Ins.) No. 350 of 2021

The National Company Law Appellate Tribunal (“NCLAT”), Chennai Bench, comprising of Justice M. Venugopal (Judicial Member) and Shri Naresh Salecha (Technical Member), has held that for an application under Section 66 of IBC to succeed, it must be proved that (i) Directors participated in carrying on business of the Corporate Debtor despite knowing likely insolvency of the Corporate Debtor; and (ii) Business of the Corporate Debtor has been carried out with an intent to defraud the creditors.

Lease Premium & Lease Rent Not Included In Explanation To Section 14(1)(D) Of IBC: NCLAT Delhi

Case Title: Sunil Kumar Agarwal v New Okhla Industrial Development Authority.

Case No.: Company Appeal (AT) (Ins.) No. 622 of 2022.

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Rakesh Kumar Jain (Judicial Member) and Mr. Naresh Salecha (Technical Member), has held that Explanation to Section 14(1)(d) of IBC does not include lease premium or lease rent amount.

NCLT Cannot Decide Controversies Relating To Attachment Of Property Under Benami Prohibition Act: NCLAT Chennai

Case Title: Mr. P. Eswaramoorthy v The Deputy Commissioner of Income Tax (Benami Prohibition)

Case No.: Company Appeal (AT) (CH) (INS) No. 188 of 2022

The National Company Law Appellate Tribunal (“NCLAT”), Chennai Bench, comprising of Justice M. Venugopal (Judicial Member) and Shri Naresh Salecha (Technical Member), has held that NCLT is not the proper Fora to determine the controversies revolving around the Attachment of Property under the Prohibition of Benami Property Transactions Act, 1988 (“PBPT Act”). The Section 60(5) of IBC does not confer jurisdiction upon NCLT to determine any questions relating to the Corporate Debtor and no remedy can be sought under the same with regards to the PBPT Act. Further, Moratorium imposed under Section 14 of IBC does not affect a Provisional Attachment Order issued under the PBPT Act.

Unsuccessful Resolution Applicant Has No Locus Standi To Challenge The Approved Resolution Plan: NCLAT Chennai

Case Title: M.K. Rajagopalan v S. Rajendran & Anr.

Case No.: Company Appeal (AT) (CH) (INS) No. 58 of 2023

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 an Unsuccessful Resolution Applicant has no locus standi to assail a Resolution Plan or its implementation since it is not a stakeholder as per Section 31(1) of IBC.

Financial Creditor Who Does Not Attend Proceedings, Cannot Claim That Cirp Has Been Wrongly Conducted: NCLAT Delhi

Case Title: Consolidated Finvest & Holdings Ltd. v Subhash Kumar Kundra

Case No.: Company Appeal (AT) (Insolvency) No. 312 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson) and Mr. Barun Mitra (Technical Member), has held that a Financial Creditor who does not attend the CIRP proceeding, cannot be heard in saying that CIRP has wrongly been conducted. The Bench has also upheld the imposition of Rs. 10 Lakhs cost by the Adjudicating Authority on the Financial Creditor for filing frivolous application.

GOOGLE V CCI: NCLAT Delhi Upholds Imposition Of Rs. 1337.76 Crores Penalty On Google, For Abuse Of Dominant Position In Android Market

Case Title: Google LLC & Anr. v Competition Commission of India

Case No.: Competition Appeal (AT) (ND) No.01 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson) and Dr. Alok Srivastava (Technical Member), has dismissed Google's appeal against CCI order dated 20.10.2022, wherein the Competition Commission of India had imposed a penalty of Rs. 1337.76 Crores on Google for abusing its dominant position in the Android OS app store market, which resulted in denial of market access for competing search apps. The Bench observed that the CCI's investigation into Google's conduct was not violative of principles of natural justice. Certain directions by the CCI have been set aside by the NCLAT.

“IBC Does Not Contemplate Multiplicity Of Applications Against The Same Personal Guarantor”: NCLAT Chennai

Case Title: Union Bank of India v Mr. P.K. Balasubramanian

Case No.: Comp. App. (AT) (CH) (Ins.) No. 293 of 2022

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 when the Insolvency Resolution Process commences against a Personal Guarantor, the claims of all Creditors are taken care of. The IBC does not contemplate multiplicity of applications against the same Personal Guarantor.

NCLAT Delhi Upholds Subsequent Reduction Of Claim By The IRP, Based On An Arbitral Award

Case Title: Intec Capital Ltd. v Uday Kumar Bhaskar Bhat

Case No.: Company Appeal (AT) (Insolvency) No.361 of 2023.

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Barun Mitra (Technical Member), has upheld the decision of the IRP whereby the claim of financial creditor was reduced after having been once admitted, based on an arbitral award which came into knowledge of IRP subsequently. The Bench held that the IRP is empowered to change the claim amount in the event any additional material comes into picture.

Financial Creditor Who Does Not Attend Proceedings, Cannot Claim That Cirp Has Been Wrongly Conducted: NCLAT Delhi

Case Title: Consolidated Finvest & Holdings Ltd. v Subhash Kumar Kundra

Case No.: Company Appeal (AT) (Insolvency) No. 312 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson) and Mr. Barun Mitra (Technical Member) has held that a Financial Creditor who does not attend the CIRP proceeding, cannot be heard in saying that CIRP has wrongly been conducted. The Bench has also upheld the imposition of Rs. 10 Lakhs cost by the Adjudicating Authority on the Financial Creditor for filing frivolous application.

GOOGLE V CCI: NCLAT Delhi Upholds Imposition Of Rs. 1337.76 Crores Penalty On Google, For Abuse Of Dominant Position In Android Market

Case Title: Google LLC & Anr. v Competition Commission of India

Case No.: Competition Appeal (AT) (ND) No.01 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson) and Dr. Alok Srivastava (Technical Member), has dismissed Google's appeal against CCI order dated 20.10.2022, wherein the Competition Commission of India had imposed a penalty of Rs. 1337.76 Crores on Google for abusing its dominant position in the Android OS app store market, which resulted in denial of market access for competing search apps.

NCLAT Chennai To Conduct Physical Hearings On Tuesday, Wednesday And Thursday

The National Company Law Appellate Tribunal (“NCLAT”), Chennai Bench, has issued a circular dated 01.04.2023, intimating that cases before NCLAT Chennai will be taken up through only Physical Mode on Tuesday, Wednesday and Thursday. Further, matters would be heard in Virtual Mode every Monday and Friday. In case if any Member of NCLAT Chennai is on leave on a particular day, then the cases will be heard through Virtual Mode on that particular day. The aforesaid arrangement shall continue until further orders by the Chairperson or Judicial Member of NCLAT.

Claim For Pre-CIRP Dues Not Been Filed, Electricity Department Not Entitled To Recover Such Dues Or To Disconnect Electricity: NCLAT Delhi

Case Title: Swastik Aqua Ltd. & Anr. v Jharkhand Bijli Vitran Nigam Ltd. & Anr.

Case No.: Company Appeal (AT) (Insolvency) No. 847 of 2022

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Barun Mitra (Technical Member), has held that if the Electricity Department does not file any claim for its pre-CIRP electricity dues, then it is neither entitled to recover the pre-CIRP electricity dues, nor entitled to disconnect the connection of Corporate Debtor over such non-payment.

Allocation Of Meagre Amount Cant Be A Ground To Question The Resolution Plan: NCLAT Delhi

Case Title: Pani Logistics v Vikas G. Jain & Ors.

Case No.: Company Appeal (AT) (Insolvency) No. 205 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Barun Mitra (Technical Member), has held that mere allocation of meagre amount cannot be a ground to question the resolution plan. The allocation in the resolution plan to the creditors can be questioned when the plan value earmarked for them is less than the liquidation value. The NCLAT Bench has upheld the NCLT's order, wherein it was held that the Operational Creditors cannot claim a higher amount when Financial Creditors have not been paid in full in the Resolution Plan.

No Scope For Condonation Of Delay Beyond 15 Days, Much Less 45 Days: NCLAT Delhi

Case Title: Diwakar Sharma v Anand Sonbhadra

Case No.: Company Appeal (AT) (Ins.) No. 1446 of 2022

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Rakesh Kumar Jain (Judicial Member) and Shri Naresh Salecha (Technical Member), has held that there is no scope for condonation of delay beyond the period of 15 days much less 45 days, as there is no window available for NCLAT to exercise its jurisdiction for condonation of delay.

Threshold Limit Of Rs. 1 Crore Applicable From The Date Of Filing And Not From Date Of Registration Of Petition: NCLAT Delhi

Case Title: Royal Manpower Services v Faridabad Autocomp System Pvt. Ltd.

Case No.: Company Appeal (AT) (Insolvency) No. 370 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Kanthi Narahari (Technical Member), has held the revised minimum threshold of Rs. 1 Crore is applicable from the date of filing of petition and not from the date of registration. The Bench revived a petition under Section 9 of IBC having a default lesser than Rs. 1 Crore, which was filed in 2019 but got registered in 2021. It has been observed that the subsequent registration of the petition will not change the date of filing.

S. 66 Of IBC: Fraud Includes A Debt Which Debtor Has No Intention To Repay: NCLAT Delhi

Case Title: Shri Baiju Trading and Investment Private Limited v Mr. Arihant Nenawati & Ors.

Case No.: Company Appeal (AT) (Ins.) No. 699 of 2021

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Rakesh Kumar Jain (Judicial Member) and Shri Naresh Salecha (Technical Member), has held under that 'fraud' for the purpose of Section 66 of IBC would consist of debts which the Debtor has no intention to repay or does not expect to be able to pay. Further, fraud may also happen by way of false representation, without there being any intention to pay back. The expression 'any persons' in Section 66 of IBC includes a knowing party to the carrying out of fraudulent transactions.

Creditor Who Don't Submit Claim Or Raises Issues In CIRP, Has No Right To Challenge Resolution Plan: NCLAT Delhi

Case Title: Madhya Pradesh Paschim Kshetra Vidyut Vitaran Co. Ltd. v Jagdish Kumar & Anr.

Case No.: Company Appeal (AT) (Ins) No. 1113 of 2020

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Rakesh Kumar Jain (Judicial Member) and Shri Naresh Salecha (Technical Member), has held that a creditor who neither submits its claim before the IRP/Resolution Professional, nor raises any issue during the entire CIRP period, cannot be allowed to challenge resolution plan which has already been implemented.

AA Not Required To Assess The Correct Amount Of Debt At Admission Stage: NCLAT Delhi

Case Title: Manmohan Gupta v MDS Digital Media Pvt. Ltd. & Anr.

Case No.: Company Appeal (AT) (Insolvency) No.202 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Barun Mitra (Technical Member), has held that the Adjudicating Authority is not required to express any opinion on the correctness of debt amount at the admission stage of petition. Rather, it is the Resolution Professional who would subsequently assess the correct debt amount at the time of collation of the claims.

Subsequently Modified OTS Proposal Would Further Refresh The Limitation Period: NCLAT Chennai

Case Title: M/s. State Bank of India v M/s. Hackbridge Hewittic and Easun Limited

Case No.: Company Appeal (AT) (CH) (Ins.) No. 05 of 2021

The National Company Law Appellate Tribunal (“NCLAT”), Chennai Bench, comprising of Justice M. Venugopal (Judicial Member) and Shri Naresh Salecha (Technical Member), has held that submission of a One Time Settlement (“OTS”) proposal is acknowledgement of debt in terms of Section 18 of Limitation Act, 1963. Further, any fresh or subsequent/modified OTS proposal would further extend the limitation period by three years.

NCLAT Delhi Upholds Rejection Of 'Discovery & Inspection' Application Filed By Corporate Debtor In Section 9 Petition

Case Title: Baba Baidnath Spinners Pvt. Ltd. v Textile Solutions

Case No.: Company Appeal (AT) (Insolvency) No. 426 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Judicial Member) and Shri Barun Mitra (Technical Member), has upheld the rejection of an application for discovery and inspection of documents field by the Corporate Debtor in a petition under Section 9 of IBC. The Bench held that the worth of document filed by the Operational Creditor is to be considered at the time of considering the Section 9 petition. Further, the embargo to file relevant documents in support of its case is on the Operational Creditor alone.

NCLAT Delhi Admits YEIDA's Appeal Against Jaypee Infratech Resolution Plan On Additional Compensation To Farmers

Case Title: Yamuna Expressway Industrial Development Authority v Monitoring Committee of Jaypee Infratech Ltd. & Ors.

Case No.: Company Appeal (AT) (Insolvency) No. 493 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Barun Mitra (Technical Member), has admitted the appeal filed by the Yamuna Expressway Industrial Development Authority (“YEIDA”) against the approved resolution plan of M/s. Suraksha Realty Ltd. and M/s. Lakshdeep Investments & Finance Pvt. Ltd. for Jaypee Infratech Ltd. YEIDA has challenged the approved Resolution Plan on limited ground of allocation of Rs. 10 Lakhs as against a claim for Rs. 1,689.017 Crores for paying additional compensation to the farmers.

Allegation That IRP/RP Did Not Conduct CIRP As Per Law, Not A Ground To Challenge Resolution Plan: NCLAT Delhi

Case Title: Brijesh Singh Bhadauriya v Pinakin Shah

Case No.: Company Appeal (AT) (Insolvency) No. 456 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Barun Mitra (Technical Member), has held that the order approving the Resolution Plan cannot be interfered with on a mere allegation that the IRP or the Resolution Professional has not conducted the CIRP in accordance with law.

Not Mandatory To File Hard Copies; NCLAT Dispenses The Requirement Of Physical Filing In Addition To E-Filing

File No.: 10/37/2018-NCLAT

The National Company Law Appellate Tribunal (“NCLAT”) has issued a circular dated 15.05.2023, directing that the physical filing of hard copies alongwith appeals, interlocutory applications, reply, rejoinders etc., which have been electronically filed, is not mandatory now.

The NCLAT had rolled out its e-filing portal available at: (https://efiling.nclat.gov.in), for electronic filing of Appeals/Interlocutory Applications/Reply/Rejoinder etc. w.e.f. 04.01.2021. However, it was mandatory to file a hard copy of the concerned appeal/application/reply/rejoinder etc. after the e-filing gets concluded. Through the circular dated 15.05.2023, the NCLAT has modified its earlier filing procedure and has dispensed with the 'mandatory' requirement of filing hard copies after e-filing.

Disposed Petition On Consent Terms Can Be Revived On Breach Of Terms, Irrespective Of Liberty Granted Or Not: NCLAT Delhi

Case Title: IDBI Trusteeship Services Limited v Nirmal Lifestyle Limited

Case No.: Company Appeal (AT) (Insolvency) No. 117 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Barun Mitra (Technical Member), has held that when a petition is withdrawn by placing on record the consent/settlement terms, then the petition is liable to be revived if consent terms provide for its revival in the event of default. The Bench has further held that it is inconsequential whether or not the NCLT has granted any liberty for revival, the petition is liable to be revived if consent terms placed on record contains a clause for revival.

Litigant Has No Right To Ask NCLT Member To Recuse Himself From Hearing: NCLAT Delhi

Case Title: Ishrat Ali v The Cosmos Cooperative Bank Ltd. & Anr.

Case No.: Company Appeal (AT) (Insolvency) No. 420 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Naresh Salecha (Technical Member), has held that a litigant has no right under Rule 62 of NCLT Rules, 2016 to seek recusal of a NCLT Member from hearing a case.

“The litigant has no right to ask the member to recuse himself. The present is a case where request was made by the Appellant to the Member to recuse from hearing the proceeding. Rule 62 cannot be put to such interpretation and giving any such right to litigant shall lead to disastrous and unwelcome results”, the Bench ruled.

Go Airlines | NCLAT Upholds Initiation Of Insolvency Proceedings, Aircrafts To Remain In Possession Of Go Airlines

Case Title: SMBC Aviation Capital Ltd. Vs. Interim Resolution Professional of Go Airlines (India) Ltd.

Case No.: Comp. App. (AT) (Ins) No. 593 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Barun Mitra (Technical Member), has upheld the NCLT order whereby Corporate Insolvency Resolution Process (“CIRP”) was initiated against Go Airlines (India) Limited.

The Bench has rejected an appeal filed by the Lessors challenging the NCLT's direction to keep the leased aircrafts intact in the possession of Go Airlines. Since the Lessors had challenged the imposition of moratorium on leased aircrafts (third party assets) when the lease agreement stood terminated prior to CIRP, the NCLAT has granted liberty to IRP and the Lessors to file application(s) before the NCLT with respect to their claims relating to the leased aircrafts.

Not Mandatory To Issue Notice To The Creditors At Pre-Admission Stage Of Section 10 Application: NCLAT Delhi

Case Title: SMBC Aviation Capital Ltd. Vs. Interim Resolution Professional of Go Airlines (India) Ltd.

Case No.: Comp. App. (AT) (Ins) No. 593 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Barun Mitra (Technical Member), has held that IBC does not contain any provision which requires that a notice be served upon the creditors of the Corporate Applicant at pre-admission stage of Section 10 application.

“….since the statutory Scheme does not contain any obligation of issuing notice to the creditors by the Corporate Applicant, any objector appearing at the time of hearing has to be heard and the objection may be noted by the Adjudicating Authority and thereafter the appropriate decision can be taken. We, thus, conclude that the mere fact that no notice was issued to the creditors or any opportunity was given to the objectors before proceeding to hear, the Corporate Applicant, cannot be held to vitiate any procedure or violating the principles of natural justice, more so when objectors were heard by the Adjudicating Authority.”

Delay In Filing Of Appeal Under Section 42 Of IBC Is Condonable Under Section 5 Of Limitation Act: NCLAT Delhi

Case Title: Canara Bank v Commercial Tax Department Circle 09, Indore, Madhya Pradesh & Anr.

Case No.: Company Appeal (AT) (Insolvency) No. 655 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Barun Mitra (Technical Member), has held that delay in filing the Appeal under Section 42 of IBC is condonable in exercise of power under Section 5 of the Limitation Act, 1963.

Home Buyers Have No Right To File Intervention Application Prior To Admission Of Section 7 Petition: NCLAT Delhi

Case Title: Vikash Kumar Mishra & Ors. v Orbis Trusteeship Service Pvt. Ltd. & Anr.

Case No.: Comp. App. (AT) (Ins) No. 246 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench, comprising of Justice Rakesh Kumar Jain (Judicial Member) and Shri Naresh Salecha (Technical Member), has held that an intervention application filed by the homebuyers in petition under Section 7 of IBC is not maintainable before such petition gets admitted. The right to file such application would accrue after admission of the Section 7 petition. The homebuyers of 'Sikka Kaamna Greens' project had filed an intervention application supporting the case of the Corporate Debtor (Builder) that the petition under Section 7 of IBC must be rejected. Both NCLT and NCLAT rejected the application on grounds of maintainability.

NCLAT Reprimands RP For Seeking Police Help For Security Of Assets Of Corporate Debtor Instead Of Private Security

Case Title: RP Modern Syntex (India) Ltd. v Supdt. of Police Anandpura, Vadodra Gujarat & Ors.

Case No.: Company Appeal (AT) Insolvency No. 682 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Naresh Salecha (Technical Member), has held for security of private property of the Corporate Debtor, the Resolution Professional cannot seek deployment of police at site. Instead, the Resolution Professional is required to hire security personnel for the said purpose and make payment to them.

“We are of the view that Resolution Professional should know that what prayers may be granted by the Adjudicating Authority and prayers which were made by the Resolution Professional requesting the Adjudicating Authority to direct deployment of police/gunmen at the site was wholly uncalled for. For security of private property, the RP has to hire security personnel for which payment has to be made for them. Prayers in the Applications were wholly inappropriate and has rightly been not considered.”

Third Party Cannot Obtain Copy Of Resolution Plan Pending Approval By AA: NCLAT Delhi

Case Title: Rupinder Singh Gill v Three C Universal Developers Pvt. Ltd.

Case No.: Comp. App. (AT) (Ins) No. 729 of 2021

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench, comprising of Justice Rakesh Kumar Jain (Judicial Member) and Dr. Alok Srivastava (Technical Member), has held that a party who is not a Claimant, Creditor or a participant in the CIRP of the Corporate Debtor, is not entitled to be given a copy of the Resolution Plan which is pending approval or rejection before the Adjudicating Authority. The IBC also does not contain any such provision.

Home Buyers Have No Right To File Intervention Application Prior To Admission Of Section 7 Petition: NCLAT Delhi

Case Title: Vikash Kumar Mishra & Ors. v Orbis Trusteeship Service Pvt. Ltd. & Anr.

Case No.: Comp. App. (AT) (Ins) No. 246 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench, comprising of Justice Rakesh Kumar Jain (Judicial Member) and Shri Naresh Salecha (Technical Member), has held that an intervention application filed by the homebuyers in petition under Section 7 of IBC is not maintainable before such petition gets admitted. The right to file such application would accrue after admission of the Section 7 petition. The homebuyers of 'Sikka Kaamna Greens' project had filed an intervention application supporting the case of the Corporate Debtor (Builder) that the petition under Section 7 of IBC must be rejected. Both NCLT and NCLAT rejected the application on grounds of maintainability.

Delay In Filing Of Appeal Under Section 42 Of IBC Is Condonable Under Section 5 Of Limitation Act: NCLAT Delhi

Case Title: Canara Bank v Commercial Tax Department Circle 09, Indore, Madhya Pradesh & Anr.

Case No.: Company Appeal (AT) (Insolvency) No. 655 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Barun Mitra (Technical Member), has held that delay in filing the Appeal under Section 42 of IBC is condonable in exercise of power under Section 5 of the Limitation Act, 1963.

IBC: NCLAT Five Member Bench Lays Down Grounds For Recall Of Judgment

Case Title: Union Bank of India (Erstwhile Corporation Bank) Vs. Dinkar T. Venkatasubramanian & Ors.

Case No.: CA (AT) (Ins.) No. 729 of 2020

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson), Justice Rakesh Kumar (Judicial Member), Justice Rakesh Kumar Jain (Judicial Member), Dr. Alok Srivastava (Technical Member) and Mr. Barun Mitra (Technical Member), has held that NCLAT has the power to recall its judgment by invoking inherent powers under Rule 11 of the NCLAT Rules, 2016. However, the power of recall does not include re-hearing of a case to find out any apparent error in the judgment.

“Power of recall of a judgment can be exercised by this Tribunal when any procedural error is committed in delivering the earlier judgment; for example; necessary party has not been served or necessary party was not before the Tribunal when judgment was delivered adverse to a party. There may be other grounds for recall of a judgment. Well known ground on which a judgment can always be recalled by a Court is ground of fraud played on the Court in obtaining judgment from the Court”, the Bench held.

IBC: NCLAT Has No Power To Review Its Judgment, Rules NCLAT Five Member Bench

Case Title: Union Bank of India (Erstwhile Corporation Bank) Vs. Dinkar T. Venkatasubramanian & Ors.

Case No.: CA (AT) (Ins.) No. 729 of 2020

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson), Justice Rakesh Kumar (Judicial Member), Justice Rakesh Kumar Jain (Judicial Member), Dr. Alok Srivastava (Technical Member) and Mr. Barun Mitra (Technical Member), has held that the power of review is not conferred upon the NCLAT. However, the NCLAT has the power to recall its judgment by invoking inherent powers under Rule 11 of the NCLAT Rules, 2016.

“The power to review is not conferred upon this Tribunal but power to recall its judgment is inherent in this Tribunal since inherent power of the Tribunal are preserved, powers which are inherent in the Tribunal as has been declared by Rule 11 of the NCLAT Rules, 2016”, the Bench ruled.

NCLAT Reprimands RP For Seeking Police Help For Security Of Assets Of Corporate Debtor Instead Of Private Security

Case Title: RP Modern Syntex (India) Ltd. v Supdt. of Police Anandpura, Vadodra Gujarat & Ors.

Case No.: Company Appeal (AT) Insolvency No. 682 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Naresh Salecha (Technical Member), has held for security of private property of the Corporate Debtor, the Resolution Professional cannot seek deployment of police at site. Instead, the Resolution Professional is required to hire security personnel for the said purpose and make payment to them.

The Bench has expressed its displeasure on the prayer made by the Resolution Professional and has observed that, “We are of the view that Resolution Professional should know that what prayers may be granted by the Adjudicating Authority and prayers which were made by the Resolution Professional requesting the Adjudicating Authority to direct deployment of police/gunmen at the site was wholly uncalled for.

Since CoC Is Re-Constituted Post Approval Of Plan, It Must Be Again Examined By The New CoC: NCLAT Delhi

Case Title: Dauphin Cables Pvt. Ltd. v Praveen Bansal Resolution Professional & Ors.

Case No.: Company Appeal (AT) (Insolvency) No. 634-636 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Naresh Salecha (Technical Member), has held that when the Committee of Creditors (CoC) is re-constituted post approval of a resolution plan, due to recategorization of a creditor, then the approved resolution plan must be placed again before the reconstituted CoC for its consideration.

IBC | Sec. 9 Petition For Implementation Of Arbitral Award Is Not Maintainable: NCLAT Chennai

Case Title: M/s. KK Ropeways Limited v M/s. Billion Smiles Hospitality

Case No.: Comp. App (AT) (CH) (INS.) No. 246 / 2021

The National Company Law Appellate Tribunal (“NCLAT”), Chennai Bench, comprising of Justice M. Venugopal (Chairperson) and Ms. Shreesha Merla (Technical Member), has upheld that a petition filed under Section 9 of IBC for implementation of an Arbitral Award is not maintainable and not in tune with the objective of IBC. The Bench has further held that arbitration and IBC proceedings cannot go on together.

Avoidance Application(S) Can Continue Post Completion Of CIRP: NCLAT Delhi

Case Title: Kapil Wadhawan v Piramal Capital & Housing Finance Ltd. & Ors.

Case No.: Company Appeal (AT) (Insolvency) No. 437 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Barun Mitra (Technical Member), has held that avoidance application(s) can continue even after completion of CIRP.

The Bench placed reliance on Section 26 of IBC to interpret that proceedings of avoidance application are a different stream and do not affect the CIRP. Similarly, Section 36(3)(f) of IBC indicates that post completion of CIRP, the statute envisages recoveries through proceedings for avoidance transactions. Further, Regulation 38(2)(d) of CIRP Regulations shows the legislative intent that Resolution Plan must provide for the manner in which avoidance transactions would be pursued after approval of Plan.

Resolution Professional Empowered To Keep Claims In Abeyance: NCLAT Chennai

Case Title: Anheuser Busch Inbev India Limited v Mr. Pradeep Kumar Sravanam

Case No.: Comp. App (AT) (CH) (INS.) No. 12 / 2023

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 it is within the power of the Resolution Professional to keep the claim(s) submitted by the creditors in abeyance, for plurality of reasons. The Bench has permitted the Resolution Professional to keep a claim in abeyance, in respect of which arbitration proceedings were ongoing and the Corporate Debtor's counter claim was pending determination before the Arbitral Tribunal.

SRA Can Pursue Avoidance Application Post Completion Of CIRP, If Plan Contains A Clause To That Effect: NCLAT Delhi

Case Title: Kapil Wadhawan v Piramal Capital & Housing Finance Ltd. & Ors.

Case No.: Company Appeal (AT) (Insolvency) No. 437 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Barun Mitra (Technical Member), has held that avoidance application(s) can be pursued by the Successful Resolution Applicant (“SRA”) post completion of CIRP, if the approved Resolution Plan contains a specific clause for pursuing such applications by the SRA.

Further, when a Resolution Plan specifically empowers the SRA to pursue the avoidance applications, then said provisions of the Plan shall bind everyone including the erstwhile Administrator/Resolution Professional.

NCLAT Delhi Terminates Insolvency Proceedings Against ZEE Entertainment Enterprises Ltd., As Parties Enter Settlement

Case Title: Punit Goenka v Indusind Bank Ltd. & Anr.

Case No.: Company Appeal (AT) (Insolvency) No. 232/2023.

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Barun Mitra (Technical Member), has closed the Corporate Insolvency Resolution Process against Zee Entertainment Enterprises Ltd. The Bank and Zee Entertainment Enterprises Ltd. have entered into a Settlement Agreement and the latter has paid the amount towards the same.

No Provision In IBC For Constitution Of COC With A Single Operational Creditor: NCLAT Chennai

Case Title: V. Duraisamy v Jeyapriya Fruits and Vegetables Commission Agent

Case No.: Company Appeal (AT)(CH)(Ins) No.25/2022

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 IBC does not contain any provision for constitution of the Committee of Creditors (CoC) with a single Operational Creditor, when no claims are received by the IRP after public announcement. The Bench has terminated the CIRP of a Corporate Debtor in which claim was received from the only Operational Creditor and there was no Financial Creditor to constitute the CoC.

Section 7 IBC | Ruling In 'Vidarbha Industries' Inapplicable When Corporate Debtor Admits Due Debt Amount: NCLAT Delhi

Case Title: Mohan Nathuram Sakpal v State Bank of India

Case No.: Company Appeal (AT) (Insolvency) No. 1527 of 2022

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench, comprising of Justice Rakesh Kumar Jain (Judicial Member) and Shri Naresh Salecha (Technical Member), has held that the ruling given in Vidarbha Industries Power Limited v. Axis Bank Limited is inapplicable to proceedings under Section 7 of IBC when the Corporate Debtor has clearly admitted the due debt amount. The Bench held as under:

“We have heard Counsel for the parties and are of the considered opinion that in the given facts and circumstances of the case Vidarbha Industries Power Limited (Supra), relied upon by the Appellant, is not applicable because there is a clear admission on the part of the Corporate Debtor of the amount of debt due in view of the letter dated 31.01.2018.”

Section 61(2) | Holidays Can Be Excluded Only From Limitation Period Of 30 Days, Inapplicable To Further 15 Days Period: NCLAT Delhi

Case Title: Sandeep Anand v Gopal Lal Baser

Case No.: Company Appeal (AT) (Ins) No. 767 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Barun Mitra (Technical Member), has held that while computing limitation in filing of appeal, the benefit of excluding public holiday or holiday is only available with respect to 30 days limitation period given under Section 61(2). Such benefit would not apply to the further 15 days period given under Proviso to Section 61(2) of IBC.

Notice Period Of 30 Days Should Be Given For E-Auction, Even Though There Are No Timelines Under Liquidation Regulations: NCLAT Delhi

Case Title: Naren Seth v Sunrise Industries & Ors.

Case No.: Company Appeal (AT) (Insolvency) No. 401 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson) a nd Shri Naresh Salecha (Technical Member), has held that a notice period of thirty days should be given in e-auction to obtain best value, even though Insolvency & Bankruptcy Board of India (Liquidation Process) Regulations, 2016 do not provide any timelines. The Bench has set aside an e-auction which was concluded by the Liquidator within five days of issuing Sale Notice.

NCLAT Delhi Stays Insolvency Proceedings Against DB Realty Ltd., Grants Opportunity To Deposit Ots Amount

Case Title: Imtiyaz Javed Siddiqui v Bank of India & Anr.

Case No.: Company Appeal (AT)(Insolvency) No. 819 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Barun Mitra (Technical Member), has stayed the Corporate Insolvency Resolution Process (“CIRP”) proceedings initiated against DB Realty Ltd. The Bench has granted DB Realty Ltd. an opportunity to deposit the amount offered in their One Time Settlement (“OTS”) proposal with the Tribunal. The matter is next listed on 06.09.2023.

Payment Of Performance Linked Incentive Fee By COC Is Discretionary, NCLT Or NCLAT Can't Interfere With COC's Decision: NCLAT Delhi

Case Title: Ravindra Kumar Goyal v Committee of Creditors of Yashasvi Yarns Limited & Anr.

Case No.: Company Appeal (AT) (Insolvency) No. 809 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Barun Mitra (Technical Member), has held that the payment of performance linked incentive fee to the IRP/RP under Regulation 34B of CIRP Regulations lies within the discretion of CoC. If the CoC refuses to pay such incentive fee, then the NCLT or NCLAT do not possess the jurisdiction to interfere with CoC's decision.

Homebuyers of 'Lotus Aren 1' Noida Are Given Flats In Lieu Of Their Claims, Approves Resolution Plan: NCLAT Delhi

Case Title: M/s. Dhankalash Distributors Pvt. Ltd. v Arena Superstructures Pvt. Ltd.

Case No.: CP (IB) No.875(PB)/2020

The National Company Law Tribunal (NCLT), Principal Bench, comprising of Chief Justice (Retd.) Ramalingam Sudhakar (President) and Shri Avinash K Srivastava (Technical Member), has approved the resolution plan of M/s. Purvanchal Projects Pvt. Ltd. for M/s. Arena Superstructures Pvt. Ltd (Lotus Group company). The Resolution Plan is valued at Rs. 584 Crores. The Homebuyers/Allottees of Lotus Arena I project would be given flats in lieu of their dues.

The resolution plan proposes to pay the Secured Financial Creditors an amount of Rs. 70 Crores against an admitted claim of Rs. 200.27Crores. The Unsecured Financial Creditors would be paid Rs. 50 Lakhs against their admitted claim of Rs. 2 Crores. The admitted claim of Homebuyers/Allottees amounts to Rs. 497.8 Crores. The Resolution plan proposes to pay off these dues by delivering flats to the homebuyers. The timeline for completion of construction of the Project and delivery of Flats to homebuyers is 36 months (after the Transfer Date).

Dissenting Financial Creditor Entitled To Liquidation Value Commensurate Only With Security Interest: NCLT Delhi

Case Title: M/s. Dhankalash Distributors Pvt. Ltd. v Arena Superstructures Pvt. Ltd.

Case No.: CP (IB) No.875(PB)/2020

The National Company Law Tribunal (NCLT), Principal Bench, comprising of Chief Justice (Retd.) Ramalingam Sudhakar (President) and Shri Avinash K Srivastava (Technical Member), has held that a co-joint reading of Sections 52, 53 and 30(2)(b) of IBC reveals that a Dissenting Financial Creditor is at best entitled to the liquidation value commensurate with its security interest. Any amount unpaid thereafter, would fall under Section 53(1)(e)(ii) of IBC, which would rank below the unsecured creditors.

There Can't Be Discrimination Between One Class Of Creditors'; NCLAT Delhi Directs Modification Of Resolution Plan

Case Title: Akashganga Processors Pvt. Ltd. v Shri Ravindra Kumar Goyal & Ors.

Case No.: Company Appeal (AT) (Insolvency) No.1148 of 2022

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Barun Mitra (Technical Member), has directed the Successful Resolution Applicant to allocate funds to Operational Creditors in the Resolution Plan, who were left unpaid while other Operational Creditors were proposed to be paid. “However, when the Successful Resolution Applicant was making payment to other two Operation Creditors, there cannot be any discrimination between payment of one class of Creditors.”

The Resolution Plan was earlier rejected by the NCLT for being violative of Section 30(2)(e) and 30(2)(f) of IBC. However, the NCLAT permitted its implementation post modification.

There Can't Be Discrimination Between One Class Of Creditors'; NCLAT Delhi Directs Modification Of Resolution Plan

Case Title: Akashganga Processors Pvt. Ltd. v Shri Ravindra Kumar Goyal & Ors.

Case No.: Company Appeal (AT) (Insolvency) No.1148 of 2022

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Barun Mitra (Technical Member), has directed the Successful Resolution Applicant to allocate funds to Operational Creditors in the Resolution Plan, who were left unpaid while other Operational Creditors were proposed to be paid. “However, when the Successful Resolution Applicant was making payment to other two Operation Creditors, there cannot be any discrimination between payment of one class of Creditors.”

The Resolution Plan was earlier rejected by the NCLT for being violative of Section 30(2)(e) and 30(2)(f) of IBC. However, the NCLAT permitted its implementation post modification.

NCLAT Delhi Stays Insolvency Proceedings Of Container Corporation Of India Ltd., A Navratna Enterprise

Case Title: Container Corporation of India Ltd. (CONCOR) v Roadwings International Pvt. Ltd. & Anr.

Case No.: Company Appeal (AT) (Ins.) No. 887 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Barun Mitra (Technical Member), has stayed the insolvency proceedings against Container Corporation of India Ltd., which is a navratna enterprise of Government of India. The alleged default was based on an Arbitral Award which was challenged before the High Court and the matter is pending adjudication.

Container Corporation of India Ltd. (CONCOR) is a public sector company, engaged in transportation and handling of containers and is listed with the NSE and BSE on stock exchange.

Liquidator To Fix The Reserve Price Based On Average Of Two Valuation Reports Received In The CIRP Process: NCLAT Delhi

Case Title: Amit Ahirrao v Anagha Anasingharaju & Anr.

Case No.: Company Appeal (AT) (Insolvency) No. 842 of 2022

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Barun Mitra (Technical Member), has held that the Liquidator while auctioning the assets has to fix the reserve price based on average of two valuation reports received in the CIRP process.

“We, however, are of the view that the Liquidator while proceeding to sell the assets in accordance with Liquidation Process Regulation, 2016 has to take the reserve value as per Schedule-I of the Liquidation Regulation. The reserve price has to be value of assets arrived at as per Regulation 35(1), as noted above. We, thus, are of the view that the Liquidator while proceeding to sell the assets has to take reserve price on the basis of average of two valuation reports received in the CIRP process.”

NCLAT Delhi Upholds Reduction Of Resolution Professional's Fee By NCLT

Case Title: Rohit J. Vora v Religare Finvest Ltd. & Ors.

Case No.: Company Appeal (AT)(Insolvency) No. 104 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Barun Mitra (Technical Member), has upheld the NCLT order whereby the fee of the Resolution Professional was reduced from Rs. 3.75 Lakhs + GST to Rs. 1 Lakh + GST.

The Bench observed that there was deficiency in the Resolution Professional's performance, such as failure to publish Form G, invite Expression of Interest and to obtain any successful resolution plan for the Corporate Debtor within 180 days from the initiation of CIRP.

“Given the material on record and the facts and circumstances in the present matter, we are therefore inclined to agree with the finding of the Adjudicating Authority that the active CIRP period having expired with no substantial work to be taken up further and the Covid pandemic also having generally disrupted work, the scaling down of the fees to Rs 1 lakh was not discriminatory or unfair.”

Differential Payments Can Be Made To Assenting And Dissenting Unsecured Financial Creditors: NCLAT Delhi

Case Title: Peter Beck and Partner Vermoegensverwaltung GMBH v Sharon Bio-medicine Limited & Ors.

Case No.: Company Appeal (AT) (Insolvency) No. 912 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Barun Mitra (Technical Member), has held that differential payments can be made between the unsecured Financial Creditors who voted in favour of the plan and the ones who voted against it. The Bench ruled that, “we are of the view that assenting financial creditors entitled for payment as proposed in the plan and dissenting financial creditor is entitled as per the minimum entitlement as per Section 30(2)(b).”

Go Airlines | NCLAT Delhi Permits Lessor To Conduct Inspection Of Leased Aircraft Engines

Case Title: Engine Lease Finance B.V. v Resolution Professional of Go Airlines (India) Ltd. & Anr.

Case No.: Comp. App. (AT) (Ins.) No.1088 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Barun Mitra (Technical Member), while adjudicating an appeal filed in Engine Lease Finance B.V. v Resolution Professional of Go Airlines (India) Ltd. & Anr., has permitted the lessor of aircraft engines of Go Airlines to conduct inspection of the leased engines.

“We are of the view that inspection be permitted within 10 days from today. As observed above, the observations made in the impugned order being at prima facie stage need not be treated as final expression of opinion by the Adjudicating Authority and all contention of both the parties are left open.”

NCLAT Chennai Reprimands Bank For Filing Appeal With Delay, Refuses To Condone

Case Title: DCB Bank Limited v Ramakrishnan Sadasivam & Ors.

Case No.: Company Appeal (AT) (CH) (Ins) No. 207/2023

The National Company Law Appellate Tribunal (“NCLAT”), Chennai Bench, comprising of Justice Rakesh Kumar Jain (Judicial Member) and Ms. Shreesha Merla (Technical Member), has reprimanded the conduct of a Bank which filed an appeal exactly on the 45^th day, despite having huge machinery at its disposal to prepare and file the appeal within statutory period of 30 days.

“Looking from any another angle, even if it is taken then that the appeal has been filed on 15th day of the extended period of 15 days even then there is no sufficient cause assigned by the Appellant as to why it had taken exactly 45 days in filing the appeal against the order dated 03.03.2022. The reasons are conspicuous by its absence especially when the Appellant is a Bank who had huge machinery at its disposal for the purpose of preparing the appeal and filing the same within the statutory period of 30 days.”

IBC | Sec. 9 Petition Not Maintainable Against Claim For Compensation Penalty Under A Contract: NCLAT Delhi

Case title: Chandrashekhar Exports Pvt. Ltd. v Babanraoji Shinde Sugar & Allied Industries Ltd.

Case No.: Company Appeal (AT) (Insolvency) No.1032 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Barun Mitra (Technical Member), has upheld the dismissal of a petition under Section 9 of IBC which was filed based on claim of compensation penalty under a contract. The Bench held that whether a claim for compensation penalty has crystallized or not is to be adjudicated by a competent Court and not the Adjudicating Authority.

NCLAT Chennai Stays Insolvency Proceedings Against Café Coffee Day's Parent Company

Case Title: Malavika Hegde v Indusind Bank Ltd. & Anr.

Case No.: Company Appeal (AT) (CH) (Ins) No.235/2023

The National Company Law Appellate Tribunal (“NCLAT”), Chennai Bench, comprising of Justice Rakesh Kumar Jain (Judicial Member) and Mrs. Shreesha Merla (Technical Member), has stayed the Corporate Insolvency Resolution Process (CIRP) of M/s Coffee Day Global Ltd. which was initiated by the NCLT on 20.07.2023.

M/s Coffee Day Global Ltd. is the parent company of the Coffee Day Group and Coffee Day Enterprises Ltd., which runs a multinational coffeeshop named 'Café Coffee Day'.

Sec. 10A Inapplicable To Defaults Committed Prior To 25.03.2020; NCLAT Chennai Says Explanation To Sec. 10A Removes All Doubts

Case Title: Carissa Investments LLC v Indu Techzone Pvt. Ltd. & Ors.

Case No.: Company Appeal (AT) (CH) (Ins) No.124/2022

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 the Explanation to Section 10A of IBC removes any doubt by clarifying that the prohibition to initiate CIRP would be inapplicable to defaults committed prior to 25.03.2020.

“The object of the legislation was to suspend the operation of Sections 7, 9 and 10 in respect of defaults arising on or after March 25th 2020 when the lockdown was disrupting normal business operation. This Tribunal is of the considered view that the 'Explanation' removes any doubt by clarifying that the provisions of the Section shall not apply in respect of any default committed prior to 25.03.2020.”

Central Excise Authority Not A Secured Creditor Under IBC: NCLAT Chennai

Case Title: The Assistant Commissioner of Central Tax v Mr. Sreenivasa Rao Ravinuthala & Anr.

Case No.: COMPANY APPEAL (AT) (CH) (INS.) NO. 346/2021

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 Central Excise Authority is not a Secured Creditor under IBC.

The Bench observed that usage of the words 'save as provided in' in Section 11E of Central Excise Act, 1944 is in the nature of an exception, intended to exclude the class of cases, mentioned in Companies Act, 1956, The Recovery of Debts due to Banks and the Financial Institutions Act, 1993, SARFAESI Act, 2002 and IBC. Also, 'Secured Interest' as defined under IBC, excludes charges created by Operation of law. Further, the Master Circular No.1053/02/2017-CX, issued by the Ministry of Finance specifies that dues under 'Central Excise Act, 1944' would have first charge only after the dues under the Provisions of IBC are recovered.

Request For Repetitive Adjournments By The Appellant: NCLAT Delhi Dismisses Appeal For Non-Prosecution

Case Title: Amrit Kumar Patel v Phoenix ARC Pvt. Ltd. & Ors.

Case No.: Company Appeal (AT) (Ins) No. 605 of 2022

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench, comprising of Justice Rakesh Kumar (Judicial Member) and Dr. Alok Srivastava (Technical Member), has dismissed an appeal for non-prosecution, since the Appellant's Counsel had sought adjournments on several continuous dates citing personal difficulty. The Bench held that the Appellant is not interested in pursuing the case.

Shri Ajai Das Mehrotra Takes Oath As A Technical Member In NCLAT

On 21.08.2023, Shri Ajai Das Mehrotra has taken oath as a Technical Member in the National Company Law Appellate Tribunal (“NCLAT”), Delhi.

Mr. Mehrotra had retired from the Indian Revenue Services as a Principal Chief Commissioner of Income Tax. Thereafter, he served as a Technical/Administrative Member in the Appellate Tribunal of Real Estate Regulatory Authority in Gandhinagar. He has also served as a Technical Member in the National Company Law Tribunal (NCLT), Ahmedabad Bench, before being appointed to the NCLAT.

NCLAT Delhi Reverses The Decision Of NCLT, Upholds CoC's Decision To Accept Relinquishment Of Personal Guarantee On Payment

Case Title: SVA Family Welfare Trust & Anr. v Ujaas Energy Ltd. & Ors.

Case No.: Company Appeal (AT) (Insolvency) No. 266 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Barun Mitra (Technical Member), has upheld the decision of Committee of Creditors (CoC) to accept a value for relinquishment of personal guarantees of the Corporate Debtor under the Resolution Plan.

The Resolution Plan contained a clause whereby the rights under personal guarantees of the Corporate Debtor would stand extinguished and the Financial Creditors would be paid compensation towards release of such personal guarantees. The Plan was approved by the CoC with 78.04%.

“The decision of the CoC to accept the value for relinquishment of personal guarantee was a commercial decision of the CoC which cannot be allowed to be impugned at the instance of dissenting Financial Creditor.”

While Application For Approval Of Resolution Plan Is Pending Before AA, CoC Can't Convene Meeting To Consider Other Resolution Plans: NCLAT Delhi

Case title: Indian Overseas Bank v M/s. Rathi TMT Saria Pvt. Ltd. & Ors.

Case No.: Comp. App. (AT) (Ins) No.1134 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Barun Mitra (Technical Member) has held that when a Resolution Plan approved by the CoC is pending consideration before the Adjudicating Authority for approval, the CoC is not permitted to hold any meeting for considering other resolution plans.

Proceedings Under Section 13 Of Companies Act, 2013 Can't Be Questioned In Proceedings Under Section 7 Of IBC: NCLAT Delhi

Case title: Ishan Singh v Spaze Towers Pvt. Ltd.

Case No.: Company Appeal (AT) (Insolvency) No.226 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench, comprising of Justice Ashok Bhushan (Chairperson), Shri Barun Mitra (Technical Member) and Shri Arun Baroka (Technical Member), has held that orders passed in the proceedings under Section 13 of the Companies Act, 2013 cannot be questioned in proceedings under Section 7 of IBC.

The Bench further ruled that relevancy of a document is to be examined by the Adjudicating Authority after taking the concerned document on record and hearing the contentions of the parties.

Shri Arun Baroka Takes Oath As A Technical Member In NCLAT

On 01.09.2023, Shri Arun Baroka has taken oath as a Technical Member in the National Company Law Appellate Tribunal (“NCLAT”), Delhi.

Mr. Baroka is an IAS officer who recently retired from the post of the Secretary, Department of Chemicals & Petro-chemicals, Government of India. He is an Electrical Engineering graduate from IIT, Delhi and has done MBA (Marketing and Systems) from IIM, Kolkata.

On 29.08.2023, the NCLAT had issued a notice intimating regarding the oath taking ceremony of Mr. Baroka, which took place on 01.09.2023 in the Chairperson Court, NCLAT Delhi.

NCLAT Chennai: Advances By Property Buyers To Real Estate Developers Are 'Borrowing' And Financial Debt

Case Title: Venkat Rao Marpina vs. Vemuri Ravi Kumar

Case No.: C.P.(IB)/107/7/HDB/2021

The National Company Law Appellate Tribunal (“NCLAT”), Chennai Bench, comprising of Justice M. Venugopal (Judicial Member) and Shreesha Merla (Technical Member), has held that since homebuyers have been added in the Explanation to Section 5(8)(f) of IBC, thus, the advances given by Property buyers to real estate developer will be considered as 'borrowing', and such amounts raised from allottees falls within the scope of Section 5(8)(f) of IBC.

NCLAT New Delhi: Responsibility Lies On The Claimant To Provide Necessary Details To Substantiate Its Claim

Case Title: Engineering Mazdoor Parishad Devas Through Its General Secretary vs. Teena Saraswat Pandey

Case No.: Comp. App. (AT) (Ins.) No. 1200 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson) and Mr. Barun Mitra (Technical Member), dismissed an application seeking consideration and settling the claim of the Engineering Mazdoor Parishad Devas workers (Appellant) by the Resolution Professional (“RP”). Further, the Appellant has also challenged the order allowing the application for the approval of the Resolution Plan.

The NCLAT held that it is the Claimant's responsibility to provide all necessary records to support their claim. The Appellate Tribunal pointed out that there were no documents submitted to substantiate the workmen's claim.

NCLT Proceeded Ex-Parte Against CD On First Hearing After Notice, NCLAT Delhi Says Sufficient Opportunity Not Given As Per Rule 37(2) Of NCLT Rules

Case title: Ami Ashutosh Majumdar v Omkara Assets Reconstruction Pvt. Ltd. & Anr.

Case No.: Company Appeal (AT) (Ins.) No. 1492 of 2022

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench, comprising of Justice Ashok Bhushan (Chairperson), Shri Barun Mitra (Technical Member) and Shri Arun Baroka (Technical Member), has set aside an ex-parte order initiating CIRP against the Corporate Debtor. The NCLT had proceeded ex-parte against the Corporate Debtor on the first hearing held post issuance of notice and when the time period to file a Reply had not lapsed. The Bench held that the NCLT ought to have granted an opportunity to file Reply to the Corporate Debtor.

“In view of the fact that notice by registry was received and served on 04.11.2022 which fact is not disputed, Adjudicating Authority ought to have given one more opportunity to file a reply. Proceeding ex-parte and reserving order is not giving sufficient opportunity to the appellant as contemplated by Rule 37 Sub Rule 2 of the NCLT Rule, 2016.”

NCLAT Delhi: CIRP Can't Be Modified On Project Basis On Request Of Financial Creditor When CIRP Is Against Company

Case Title: Kotak Mahindra Bank Ltd. vs. Resolution Professional of Universal Buildwell Pvt. Ltd.

Case No.: Company Appeal (AT) (Ins.) No. 1000 of 2021

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson) and Mr. Barun Mitra (Technical Member), dismissed an application seeking to confine the Corporate Insolvency Resolution Process (“CIRP”) only in respect of one project of Universal Buildwell Pvt. Ltd. (Corporate Debtor).

The NCLAT held that when the NCLT initially ordered the commencement of insolvency proceedings against the Corporate Debtor based on the application of the Financial Creditor, it could not have modified the initiation of CIRP by confining it to only one project.

NCLAT Chennai Terminates Insolvency Proceedings Against Café Coffee Day's Parent Company, Parties Enter Settlement

Case Title: Malavika Hegde v Indusind Bank Ltd. & Anr.

Case No.: Company Appeal (AT) (CH) (Ins) No.235/2023

The National Company Law Appellate Tribunal (“NCLAT”), Chennai Bench, comprising of Justice M. Venugopal (Judicial Member) and Mrs. Shreesha Merla (Technical Member), has terminated the Corporate Insolvency Resolution Process (CIRP) of M/s Coffee Day Global Ltd. which was initiated by the NCLT on 20.07.2023, as the Parties have entered settlement and the debt has been assigned.

M/s Coffee Day Global Ltd. is the parent company of the Coffee Day Group and Coffee Day Enterprises Ltd., which runs a multinational coffeeshop named 'Café Coffee Day'.

Resolution Professional Not Obligated To Share All Information With Shareholders Of Corporate Debtor: NCLAT Delhi

Case Title: M/s Dauphin Cables Pvt. Ltd. v Mr. Praveen Bansal

Case No.: Company Appeal (AT) Insolvency No. 971, 972 & 973 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Barun Mitra (Technical Member), has held that IBC provisions do not indicate that all information collected by the Resolution Professional is required to be shared with Shareholders of the Corporate Debtor upon their request. The Bench upheld the NCLT order whereby Resolution Professional was permitted to submit documents in a sealed cover before the NCLT.

Rule 43 Of NCLT Rules | NCLT Can Call For Information/Evidence From Parties Including Resolution Professional: NCLAT Delhi

Case Title: M/s Dauphin Cables Pvt. Ltd. v Mr. Praveen Bansal

Case No.: Company Appeal (AT) Insolvency No. 971, 972 & 973 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Barun Mitra (Technical Member), has held that under Rule 43 of the NCLT Rules, 2016, the NCLT is empowered to call information or evidence from the parties, including the Resolution Professional.

“The Adjudicating Authority is thus fully empowered for calling information or evidence from the parties. The power under Rule 43 shall also encompass power to call information from Resolution Professional.”

IBC Not A Debt Recovery Mechanism, NCLAT Chennai Reiterates

Case Title: Mr. Maulik Kirtibhai Shah vs. United Telecom Limited.

Case No.: Company Appeal (AT) (CH) (Ins) No. 268/2023

The National Company Law Appellate Tribunal (“NCLAT”), Chennai Bench comprising of Justice M. Venugopal (Judicial Member) and Shreesha Merla (Technical Member), has held that IBC is not a 'recovery mechanism'. Moreover, the definition of 'Operational Debt' cannot be widely interpreted to include any agreement between the parties that does not specifically pertain to the supply of goods or services as such an interpretation would undermine the purpose and scope of the Code.

NCLAT New Delhi: Time Taken For Restoration And Withdrawal Can't Be Excluded, Delay Beyond Condonable Limit

Case Title: Harish Kumar vs. Solitaire Infomedia Pvt. Ltd. & Anr.

Case No.: Company Appeal (AT) (Insolvency) No. 348 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi, comprising of Justice Ashok Bhushan (Chairperson) and Mr. Barun Mitra Dash (Technical Member), dismissed an application seeking condonation of delay in filing the appeal under Section 61 of IBC against the order by which petition under Section 7 of IBC has been rendered non-maintainable.

The Tribunal held that the period of delay in filing an appeal under Section 61 of IBC, from the date of restoration application to the date on which it was disposed of as withdrawn cannot be excluded by giving the benefit of Section 14 of the Limitation Act, 1963.

NCLAT New Delhi: CIRP Cannot Be Initiated For Defaults During The Excluded Timeline Under Section 10A Of IBC

Case Title: Vikram Kumar vs. Aranca (Mumbai) Private Limited.

Case No.: Company Appeal (AT) (Insolvency) No. 836 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, New Delhi comprising of Justice Anant Bijay Singh (Judicial Member) and Mr. Ajai Das Mehrotra (Technical Member), has declined to that default falls within the excluded period specified in Section 10-A of IBC as the Notice for invoking the Bank Guarantee addressed to the Corporate Guarantor was issued on 25.08.2020. CIRP cannot be initiated for defaults that occurred within a 12-month period starting from 25.03.2020.

Resolution Professional Not Obligated To Share All Information With Shareholders Of Corporate Debtor: NCLAT Delhi

Case Title: M/s Dauphin Cables Pvt. Ltd. v Mr. Praveen Bansal

Case No.: Company Appeal (AT) Insolvency No. 971, 972 & 973 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Barun Mitra (Technical Member), has held that IBC provisions do not indicate that all information collected by the Resolution Professional is required to be shared with Shareholders of the Corporate Debtor upon their request. The Bench upheld the NCLT order whereby Resolution Professional was permitted to submit documents in a sealed cover before the NCLT.

Rule 43 Of NCLT Rules | NCLT Can Call For Information/Evidence From Parties Including Resolution Professional: NCLAT Delhi

Case Title: M/s Dauphin Cables Pvt. Ltd. v Mr. Praveen Bansal

Case No.: Company Appeal (AT) Insolvency No. 971, 972 & 973 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Barun Mitra (Technical Member), has held that under Rule 43 of the NCLT Rules, 2016, the NCLT is empowered to call information or evidence from the parties, including the Resolution Professional.

“The Adjudicating Authority is thus fully empowered for calling information or evidence from the parties. The power under Rule 43 shall also encompass power to call information from Resolution Professional.”

IBC Not A Debt Recovery Mechanism, NCLAT Chennai Reiterates

Case Title: Mr. Maulik Kirtibhai Shah vs. United Telecom Limited.

Case No.: Company Appeal (AT) (CH) (Ins) No. 268/2023

The National Company Law Appellate Tribunal (“NCLAT”), Chennai Bench comprising of Justice M. Venugopal (Judicial Member) and Shreesha Merla (Technical Member), has held that IBC is not a 'recovery mechanism'. Moreover, the definition of 'Operational Debt' cannot be widely interpreted to include any agreement between the parties that does not specifically pertain to the supply of goods or services as such an interpretation would undermine the purpose and scope of the Code.

NCLAT New Delhi: Time Taken For Restoration And Withdrawal Can't Be Excluded, Delay Beyond Condonable Limit

Case Title: Harish Kumar vs. Solitaire Infomedia Pvt. Ltd. & Anr.

Case No.: Company Appeal (AT) (Insolvency) No. 348 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi, comprising of Justice Ashok Bhushan (Chairperson) and Mr. Barun Mitra Dash (Technical Member), dismissed an application seeking condonation of delay in filing the appeal under Section 61 of IBC against the order by which petition under Section 7 of IBC has been rendered non-maintainable.

The Tribunal held that the period of delay in filing an appeal under Section 61 of IBC, from the date of restoration application to the date on which it was disposed of as withdrawn cannot be excluded by giving the benefit of Section 14 of the Limitation Act, 1963.

NCLAT New Delhi: CIRP Cannot Be Initiated For Defaults During The Excluded Timeline Under Section 10A Of IBC

Case Title: Vikram Kumar vs. Aranca (Mumbai) Private Limited.

Case No.: Company Appeal (AT) (Insolvency) No. 836 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, New Delhi comprising of Justice Anant Bijay Singh (Judicial Member) and Mr. Ajai Das Mehrotra (Technical Member), has declined to that default falls within the excluded period specified in Section 10-A of IBC as the Notice for invoking the Bank Guarantee addressed to the Corporate Guarantor was issued on 25.08.2020. CIRP cannot be initiated for defaults that occurred within a 12-month period starting from 25.03.2020.

When Claimant Fails To Substantiate Its Claim, No Error Committed By RP In Admitting Claim As Per Balance Sheet Of Corporate Debtor: NCLAT Delhi

Case Title: Engineering Mazdoor Parishad Devas Through Its General Secretary v Teena Saraswat Pandey

Case No.: Comp. App. (AT) (Ins.) No. 1200 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Barun Mitra (Technical Member), has held that a Claimant is obliged to substantiate its claim, failing which, the Resolution Professional's decision to admit the claim based on the balance sheet of the Corporate Debtor cannot be faulted.

“It is the responsibility of the Claimant to bring all relevant record to substantiate the claim. The Resolution Professional having admitted the claim of Rs.96 lakhs and odd on the basis of balance sheet of the Corporate Debtor, no error can be said to have been committed by the Resolution Professional for accepting the claim of Rs. 96 lakhs and odd. The Adjudicating Authority also held that there are no documents filed to support the claim of the workmen.”

NCLAT New Delhi Sets Aside NCLT Order : Liability Of Interest Accrued During Section 10A Period Not To Be Excluded Aside

Case Title: Beetel Teletech Ltd. vs. Arcelia IT Services Pvt. Ltd.

Case No.: Company Appeal (AT) (Insolvency) No. 1459 of 2022

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson) and Mr. Barun Mitra (Technical Member), has set aside an NCLT Order wherein it was held that the Corporate Debtor cannot claim the benefit of Section 10A of IBC since the default has been committed prior to the commencement of the excluded period under Section 10A of IBC. Further, the view that the liability of interest that accrued during the said period should not be computed for triggering CIRP is erroneous. As per Section 60 of the Indian Contract Act, 1872 when a debtor makes a payment without specifying how it should be allocated, the creditor has the discretion to decide how to apply it to clear any remaining debts and the creditor can use it to its maximum advantage.

Registry Remained Open, Summer Vacation Not Excluded From Computation Of Limitation: NCLAT Delhi

Case title: M K Overseas Export Pvt. Ltd. v Sapan Mohan Garg

Case No.: Company Appeal (AT) (Ins.) No.1040 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench, comprising of Justice Ashok Bhushan (Chairperson), Shri Barun Mitra (Technical Member) and Shri Arun Baroka (Technical Member), has held that the duration of summer vacation of NCLAT cannot be excluded from computation of limitation period, since filing facility was not discontinued by the Registry and urgent matters were also being heard twice a week by the NCLAT.

“In so far as the submission of the applicant that there was summer vacation, therefore, appeal could not be filed. There is already notification issued by the Registry that filing of the appeal is not precluded during summer vacation and Court also use to convene twice in a week to consider urgent matters. Therefore that submission has also no legs to stand.”

NCLAT Directs Indexing Of All Interim Applications In The Main Volume

Ref: F. No. 10/37/2018-Estt./NCLAT

The National Company Law Appellate Tribunal (“NCLAT”) has issued a notice dated 04.10.2023, directing the Advocates/Authorised Representatives/Parties-in-Person to index all Interim Applications (“IA”) in the main volume of the Appeal/application filed before the NCLAT. The indexing of the IAs is to be done after Memo of Parties and Synopsis, but before the Pleadings.

“In compliance of the order dated 26.09.2023 passed in Company Appeal (AT) (Ins.) No.545 of 2023 and as directed by the Competent Authority, henceforth Ld. Advocates/Authorised Representatives / Parties-in-Person are directed to index all the IAs (whatever it may be) in the main volume after Memo of Parties and Synopsis but before the pleadings.”

NCLAT New Delhi: Objective Of IBC Is To Revive Corporate Debtor And Liquidation Is The Last Resort

Case Title: Gayatri Polyrub Pvt. Ltd. vs. Anil Kohli & Anr.

Case No.: Company Appeal (AT) (Insolvency) No. 650 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench, comprising of Justice Ashok Bhushan (Chairperson), Mr. Barun Mitra (Technical Member), and Mr. Arun Baroka (Technical Member), has held that the objective of IBC is to revive the Corporate Debtor and Liquidation as the last resort in a well-settled law. The Bench gave an opportunity to the CoC to consider the Revised Offer and take the decision to meet the ends of justice and extend the CIRP for a period of 60 days.

NCLAT New Delhi: Resolution Plan Cannot Go Back And Forth Making CIRP An Endless Process, Even If NCLT Has Not Approved The Plan

Case Title: IDBI Bank Ltd. vs. Jalesh Kumar Grover RP of GPI Textiles Ltd.

Case No.: Company App. (AT) (Ins) No. 799 of 2023

The National Company Law Appellate Tribunal ('NCLAT'), Principal Bench, New Delhi comprising of Justice Rakesh Kumar Jain (Judicial Member) and Arun Baroka (Technical Member), has held that as per the principle established by the Supreme Court in RPS Infrastructure Ltd. vs. Mukul Kumar & Anr., even if the NCLT has not approved a Resolution Plan, it should not lead to a situation where the Plan can go back and forth making the CIRP an indefinite and never-ending process.

NCLAT Chennai: Not Open To NCLT To Reject Withdrawal Application U/S 12A, Where 90% Voting Share Of CoC Exists

Case Title: Mayuras Industrial Services vs. S R Shriraam Shekher & Anr

Case No.: Company Appeal (AT) (CH) (Ins) No. 07/2023

The National Company Law Appellate Tribunal ('NCLAT'), Chennai Bench, comprising of Justice M. Venugopal (Judicial Member) and Shreesha Merla (Technical Member), has held that the jurisdiction of NCLT under 12A of IBC is limited. Further, where the CoC had approved more than 90% of the voting share, it is not open to the NCLT in law to reject the application.

NCLAT New Delhi: Ex-Director Cannot Claim Copy Of Resolution Plan When Entire CIRP Process Completed

Case Title: Diwakar Sharma vs. Anand Sonbhadra

Case No.: Company Appeal (AT) (Insolvency) No. 1182 of 2023

The National Company Law Appellate Tribunal ('NCLAT), New Delhi bench, comprising of Justice Ashok Bhushan (Chairperson), Shri Barun Mitra (Technical Member), and Shri Arun Baroka (Technical Member), has held that an Ex-Director cannot claim a copy of the Resolution Plan after its approval since the entire CIRP process is over with the Resolution Plan already approved in 2022.

NCLAT New Delhi: Approval By CCI Prior To Approval Of Resolution Plan By CoC Is Directory In Nature

Case Title: Soneko Marketing Pvt. Ltd. vs. Girish Sriram Juneja & Ors.

Case No.: Company Appeal (AT) (Insolvency) No. 807 of 2023

The National Company Law Appellate Tribunal ('NCLAT'), New Delhi Bench, comprising of Justice Ashok Bhushan (Chairperson) and Mr. Barun Mitra (Technical Member), has held that Section 31(4) of IBC has to be read to mean that though the approval by the Competition Commission of India (“CCI”) is 'mandatory', the approval by the CCI prior to the approval of the CoC is 'directory'.

The Tribunal observed that as per the timelines of the Competition Act and that of CIRP, Resolution Plan submission, and CoC approval in the Code, it is not in the hands of the Resolution Plan when CCI will grant the approval. The CCI has to act as per statutory provisions of the Competition Act and it has been given 210 days to take a decision. It pointed out that if it holds that prior approval of the CCI is mandatory prior to the approval of the Plan by the CoC, it will lead to incongruous results, the CIRP cannot be frozen or cannot be put on halt because an application is submitted before the CCI leading to an adverse effect on the CIRP.

NCLAT New Delhi: Date Of Default As Per One Time Restructure Agreement Shall Be Date Of Default

Case Title: Pradeep Madhukar More vs. Central Bank of India

Case No.: Company Appeal (AT) (Insolvency) No.837 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson) and Barun Mitra (Technical Member), has held that if the Bank has entered into One Time Restructuring ('OTR') Agreement with the Corporate Debtor, the date of default for the purpose of Section 10A of IBC will be the date of default in the OTR proposal and not the original/Non-Performing Asset ('NPA') date of default.

NCLAT New Delhi: Disputes Surrounding Claims And Counter-Claims Cannot Be Adjudicated Or Determined By The Adjudicating Authority Given Their Summary Jurisdiction

Case Title: Rakesh Kumar (Suspended Director of Suchi Paper Mills Ltd.) vs. Flourish Paper & Chemicals Ltd.

Case No.: Company Appeal (AT)(Insolvency) No. 1161 of 2022

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench comprising of Justice Ashok Bhushan (Chairperson) and Barun Mitra (Technical Member), has held that disputes surrounding claims and counter-claims cannot be adjudicated or determined by the Adjudicating Authority given their summary jurisdiction.

NCLAT New Delhi: No Fresh Period Of Limitation From The Date Of MSME Order When Application Barred By Time

Case Title: Pan Pacific Engineering Services Pvt. Ltd. vs. Ayyappa Hydro Power Ltd.

Case No.: Company Appeal (AT) (Insolvency) No. 1239 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, New Delhi comprising of Justice Ashok Bhushan (Chairperson), Mr. Barun Mitra (Technical Member), and Mr. Arun Baroka (Technical Member), has held that no fresh period of Limitation would commence from the date of an order passed by MSME department order, when an application under IBC seeking initiation of CIRP is barred by time.

NCLAT Chennai: FC And OC Can't Give Additional Facts Not Provided In Application Under Sections 7, 9 Or 10 Of IBC

Case Title: State Bank of India vs. India Power Corporation Limited

Case No.: Company Appeal (AT) (CH) (Ins) No.87/2023

The National Company Law Appellate Tribunal (“NCLAT”), Chennai Bench comprising of Justice Rakesh Kumar Jain (Judicial Member) and Shreesha Merla (Technical Member), has held that a creditor cannot set up a new case or raise additional facts altogether that has not been set up in the main application filed either u/s 7, 9, or 10 of IBC, when NCLT allows the creditor (Petitioner) to file a rejoinder to the reply pertaining to additional facts stated by Corporate Debtor.

Mere Statement Of Operational Creditor That No Dispute Exists, Is Not Enough: NCLAT Delhi

Case title: NTT Data Business Solutions Pvt. Ltd. v Trident Ltd.

Case No.: Company Appeal (AT) (Insolvency) No. 1228 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Barun Mitra (Technical Member), has held that Operational Creditor merely responding to notice invoking arbitration by stating that no disputes exist, would not prevent the NCLT from concluding that disputes exist based on material on record.

NCLAT New Delhi: No Point In Discussing An Issue, Even If Issue Is Attractive, After The Closure Of CIRP Proceedings

Case Title: State Bank of India vs. Ritesh Prakash Adatiya & Ors.

Case No.: Comp. App. (AT) (Ins) No. 505 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, New Delhi comprising of Justice Rakesh Kumar Jain (Judicial Member) and Naresh Salecha (Technical Member), has held that when the CIRP proceedings are ultimately closed and no such proceedings exist, there is no point in discussing the issue even if the issue may be attractive.

NCLAT New Delhi Suspends Finolex Cable Order Post Supreme Court Directs NCLT Delhi Chairperson To Conduct Inquiry

Case Title: Deepak Kishan Chhabria & Anr. vs. Orbit Electricals Pvt. Ltd. & Ors.

Case No.: Company Appeal (AT) No. 64 of 2020

The National Company Law Appellate Tribunal ('NCLAT') Principal Bench, comprising Justice Rakesh Kumar (Judicial Member) and Dr. Alok Srivastava (Technical Member), suspended its order dated 13.10.2023 due to the disclosure of the result of the Annual General Meeting of the Finolex Cable.

NCLAT had faced an inquiry by the Supreme Court as per which it was brought to the notice of the Supreme Court order dated 13.10.2023 directing the NCLAT that Judgment in pending appeal shall be delivered by it being duly apprised of the fact that the result of the Annual General Meeting has been declared.

The matter related to Finolex Cable's Annual General Meeting and Prakash and Deepak Chhabria's legal tussle over the management control of the company. The NCLAT via its order dated 13.10.2023 had allowed Deepak Chhabria to continue as the chairman of Finolex Cables and put on hold the changes that were to be brought into the Articles of Association of the Company.

The Supreme Court in its order dated 13.10.2023 had directed the NCLT chairperson Justice Ashok Bhushan to conduct an inquiry into whether a bench of the Appellate Tribunal defied the Supreme Court's order and Justice Bhushan was required to submit such report on 16.10.2023 by 5 pm.

The NCLAT via its order on 21.09.2023 had directed the status quo on the conduct of the Annual General Meeting until the dispute between Prakash Chabria and Deepak Chabria over the management of the Company was settled.

The Apex Court had observed that decisions relating to the appointment of an Executive Chairperson would be subject to the outcome of the litigation at the NCLAT.

NCLAT Chennai: Transfer Of Shares Not An Act Of Oppression And Mismanagement | SEBI Is The Competent Forum To Decide Disputes Of Transfer Of Shares And Not NCLT

Case Title: Jitendra Virmani vs. MRO – Tek Reality Limited

Case No.: Company Appeal (AT) No.363/2019

The National Company Law Appellate Tribunal ('NCLAT'), Chennai Bench comprising of Justice M. Venugopal (Judicial Member) and Ms. Shreesha Merla (Technical Member) has held the Transfer of Shares is not an act of 'oppression' and 'mismanagement' against the shareholders of the Company and disputes relating to the Transfer of Shares fall within the ambit of the Securities Board of India ('SEBI') and not NCLT.

NCLAT Chennai: Mere Irregularity Not A Ground For Oppression And Mismanagement

Case Title: Jitendra Virmani vs. MRO – Tek Reality Limited

Case No.: Company Appeal (AT) No.363/2019

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 a mere irregularity or infirmity is not a ground for oppression and mismanagement and a single act is not oppression and a continuous course of oppressive conduct by the majority is required and necessary for oppression and mismanagement proceedings.

NCLAT Chennai: NCLT Has Inherent Powers To Look Into Earlier Litigations To Ascertain The Bonafide Of A Party

Case Title: Jitendra Virmani vs. MRO – Tek Reality Limited

Case No.: Company Appeal (AT) No.363/2019

The National Company Law Appellate Tribunal ('NCLAT'), Chennai Bench comprising of Justice M. Venugopal (Judicial Member) and Ms. Shreesha Merla (Technical Member), has held the NCLT is well within the ambit with its inherent powers to look into the earlier orders and the observations made to ascertain the bona fide of the Appellant.

NCLAT New Delhi: Limitation To File Appeal Commences On The Order Pronouncement Date And Not When Aggrieved Party Becomes Aware Of Its Content

Case Title: Raiyan Hotels and Resorts Pvt. Ltd. vs. Unrivalled Projects Pvt. Ltd.

Case No.: Company Appeal (AT) (Insolvency) No. 1071 of 2023

The National Company Law Appellate Tribunal (NCLAT), Principal Bench, New Delhi comprising of Justice Ashok Bhushan (Chairperson), Shri Barun Mitra (Technical Member), and Shri Arun Baroka (Technical Member), has held that the Limitation for filing of the Appeal before NCLAT does not commence on the date when the Appellant became aware of the contents but it shall commence when the order was pronounced.

NCLAT Chennai: Grounds Not Taken On Jurisdiction Before Cannot Be Contested Afresh On Appeal When The Parties Accepted The Jurisdiction In NCLT

Case Title: Jitendra Virmani vs. MRO – Tek Reality Limited

Case No.: Company Appeal (AT) No.363/2019

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 the grounds not taken on jurisdiction before the NCLT, cannot be contested afresh in appeal as the parties have exercised acquiescence and accepted the jurisdiction of the NCLT.

NCLAT New Delhi: Liquidator Must Follow Clause 12 Of Schedule 1 Of Liquidation Process Regulations, 2016, And Not Lay Its Owns Terms And Conditions In The EOI For Period Of Payment Of Balance Sale Consideration

Case Title: Vinod Kumar Kothari Liquidator of Nicco Corporation Ltd. vs. Sneha Techno Equipments Pvt. Ltd.

Case No.: Company App. (AT) (Ins) No. 316 of 2023

The National Company Law Appellate Tribunal ('NCLAT), Principal Bench, New Delhi comprising of Justice Rakesh Kumar Jain (Judicial Member) and Shri Naresh Salecha (Technical Member), has held that the Liquidator is required to follow the terms and conditions of Clause 12 of Schedule 1 of the Liquidation Process Regulations, 2016, and cannot lay down its own terms and conditions in the EOI regarding the period for payment of balance sale consideration.

NCLAT Chennai: Shareholders Cannot Take Decisions For The Company's Business Or Hold Negotiations With Parties

Case Title: Jitendra Virmani vs. MRO – Tek Reality Limited

Case No.: Company Appeal (AT) No.363/2019

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 the Board of Directors have the onus to take decisions for the Company's business or negotiations with the parties concerned and not the shareholders of the company.

NCLAT Chennai: Threshold To Maintain Oppression Proceedings Not Limited To Holding Of Shares Alone But Extends To Manner Of Acquiring Of Shares

Case Title: Jitendra Virmani vs. MRO – Tek Reality Limited

Case No.: Company Appeal (AT) No.363/2019

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 the threshold to maintain oppression proceedings is not only limited to the holding of shares alone but also extends to the manner in which the shares were acquired. The Bench was adjudicating a matter under the Companies Act, 2013 relating to oppression and mismanagement.

NCLAT New Delhi: Jurisdiction Of NCLT Under IBC Is Summary In Nature, Not Extensive As A Civil Court To Enquire Into Disputes

Case Title: Sanjay Pandurang Kalate vs. Vistra ITCL (India) Ltd.

Case No.: Company Appeal (AT)(Insolvency) No. 742 of 2023

The National Company Law Appellate Tribunal ('NCLAT'), Principal Bench, comprising of Mr. Justice Ashok Bhushan (Chairperson) and Mr. Barun Mitra (Technical Member), has held that the scope and jurisdiction of NCLT under the IBC being summary in nature, is distinctly not as extensive as that of a civil court to enquire into disputes arising out of Memorandum of Understanding (MoU) and related specific performance.

NCLAT New Delhi: Haircut In Resolution Plan Cannot Be Construed As Being Violative Of Section 30(2)(e) Of IBC

Case Title: Mr. Ankur Narang & Ors. vs. Mr. Nilesh Sharma RP & Ors.

Case No.: Company Appeal (AT)(Insolvency) No. 1240 of 2023

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), has held that a haircut in Resolution Plan cannot be construed as being violative of Section 30(2)(e) of IBC and the minority homebuyers have to necessarily sail with the majority within the class.

NCLAT Delhi: Fine For Non-Cooperation By Ex-Management Under IBC Is A “Penalty” Not “Cost” And Outside NCLT's Jurisdiction

Case Title: Rakesh Gupta & Ors. vs Mahesh Bansal.

Case No.: COMPANY APPEAL (AT) (Insolvency) No. 401 of 2022

The National Company Law Appellate Tribunal (“NCLAT”), Delhi Bench, comprising of Justice Anant Bijay Singh (Judicial Member) and Mr. Naresh Salecha (Technical Member), has held that the fine imposed on non-cooperation by ex-management u/s 19(2) or 34(3) of IBC is covered under the term “penalty” and not “cost” under Rule 149 of the National Company Law Tribunal Rules, 2016. The Bench further observed that imposing fines is outside the jurisdiction of NCLT.

NCLAT New Delhi: Operational Creditor Not Entitled To Benefit U/S 14 Of Limitation Act When Suit Filed By It Was Withdrawn By Itself Without Any Liberty To Institute Fresh suit

Case Title: GRI Towers India Pvt. Ltd. vs. Inox Wind Ltd.

Case No.: Company Appeal (AT) (Insolvency) No. 1106 of 2023

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), has held that an Operational Creditor is not entitled for benefit of Section 14 of the Limitation Act, 1963 where the Suit filed by it was withdrawn on its own application without any liberty to institute a fresh suit.

NCLAT New Delhi: Jurisdiction Of NCLT Under IBC Is Summary In Nature, Not Extensive As A Civil Court To Enquire Into Disputes

Case Title: Sanjay Pandurang Kalate vs. Vistra ITCL (India) Ltd.

Case No.: Company Appeal (AT)(Insolvency) No. 742 of 2023

The National Company Law Appellate Tribunal ('NCLAT'), Principal Bench, comprising of Mr. Justice Ashok Bhushan (Chairperson) and Mr. Barun Mitra (Technical Member), has held that the scope and jurisdiction of NCLT under the IBC being summary in nature, is distinctly not as extensive as that of a civil court to enquire into disputes arising out of Memorandum of Understanding (MoU) and related specific performance.

NCLAT New Delhi: Haircut In Resolution Plan Cannot Be Construed As Being Violative Of Section 30(2)(e) Of IBC

Case Title: Mr. Ankur Narang & Ors. vs. Mr. Nilesh Sharma RP & Ors.

Case No.: Company Appeal (AT)(Insolvency) No. 1240 of 2023

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), has held that a haircut in Resolution Plan cannot be construed as being violative of Section 30(2)(e) of IBC and the minority homebuyers have to necessarily sail with the majority within the class.

NCLAT Delhi: Fine For Non-Cooperation By Ex-Management Under IBC Is A “Penalty” Not “Cost” And Outside NCLT's Jurisdiction

Case Title: Rakesh Gupta & Ors. vs Mahesh Bansal.

Case No.: COMPANY APPEAL (AT) (Insolvency) No. 401 of 2022

The National Company Law Appellate Tribunal (“NCLAT”), Delhi Bench, comprising of Justice Anant Bijay Singh (Judicial Member) and Mr. Naresh Salecha (Technical Member), has held that the fine imposed on non-cooperation by ex-management u/s 19(2) or 34(3) of IBC is covered under the term “penalty” and not “cost” under Rule 149 of the National Company Law Tribunal Rules, 2016. The Bench further observed that imposing fines is outside the jurisdiction of NCLT.

NCLAT New Delhi: Operational Creditor Not Entitled To Benefit U/S 14 Of Limitation Act When Suit Filed By It Was Withdrawn By Itself Without Any Liberty To Institute Fresh suit

Case Title: GRI Towers India Pvt. Ltd. vs. Inox Wind Ltd.

Case No.: Company Appeal (AT) (Insolvency) No. 1106 of 2023

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), has held that an Operational Creditor is not entitled for benefit of Section 14 of the Limitation Act, 1963 where the Suit filed by it was withdrawn on its own application without any liberty to institute a fresh suit.

NCLAT New Delhi: Dispute To Be 'Truly In Existence' At Time Of Reply Or Section 9 Application For Nullifying CIRP U/S 9 Of IBC

Case Title: Amrop India Pvt. Ltd. vs. The Hi-Tech Gears Ltd.

Case No.: Company Appeal (AT)(Insolvency) No. 1251 of 2023

The National Company Law Appellate Tribunal ('NCLAT'), Principal Bench, comprising Mr. Justice Ashok Bhushan (Chairperson) and Mr. Barun Mitra (Technical Member), has held that the dispute raised must truly exist at the time of filing a reply to the Demand Notice under Section 8(2) of IBC or at the time of filing the Section 9 application for 'pre-existing dispute' to be a ground to nullify the CIRP application under Section 9 of IBC.

NCLAT Delhi: An Operational Creditor Who Is A Participant In Meetings Of CoC Has No Right To Seek A Copy Of Information Memorandum

Case Title: Vinay Kumar Singhal RP for PG Advertising Pvt. Ltd. Vs. Mahesh Bajaj

Case No.: Comp. App. (AT) (Ins) No. 645 of 2023

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 an Operational Creditor who is a participant in meetings of the Committee of Creditors (“CoC”) has no right to seek a copy of the Information Memorandum.

It was observed that both IBC and its Regulations are totally silent about the supply of the Information Memorandum to the participant. The legislature, however, has made a provision for providing a copy of the Information Memorandum to the member of the CoC and the Resolution Applicant but not to the participant of the meeting of the CoC. Therefore, a copy of the Information Memorandum need not be given to the Operational Creditor who is merely a participant of the CoC and not a member.

NCLAT Delhi: Claims Cannot Be Entertained After Approval Of Resolution Plan By CoC Even If Resolution Plan Is Still Pending For Approval By NCLT

Case Title: Suraksha Realty Ltd vs Anuj Bajpai Resolution Professional of Panache Aluminium Extrusion Pvt. Ltd.

Case No.: Company Appeal (AT) (Insolvency) No. 1389 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), Delhi Bench, comprising of Justice Ashok Bhushan (Chairperson), Mr Barun Mitra and Mr. Arun Baroka (Technical Members) has rejected an appeal and held that claims cannot be entertained after approval of the Resolution Plan by Committee of Creditors (“CoC”) even if the Resolution Plan is still pending for approval of the National Company Law Tribunal (“NCLT”).

NCLAT referred to the Supreme Court judgement in M/s. R.P.S. Infrastructure Limited Vs. Mukul Kumar and Anr. where the court has already taken the view that after approval of the plan by the CoC, any claims cannot be entertained.

Time Spent In Obtaining Legal Opinion And Engaging Counsel Is Not 'Sufficient Cause' For Condonation Of Delay In Filing Of Appeal: NCLAT Chennai

Case title: Anish Lawrence & Anr. v Renahan Vamakesan

Case No.: Company Appeal (AT) (CH) (Ins) No. 377 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), Chennai Bench, comprising of Justice Rakesh Kumar Jain (Judicial Member) and Ms. Shreesha Merla (Technical Member), has held that the time spent in obtaining legal opinion and engagement of counsel is not a 'sufficient cause' to condone the delay in filing of appeal under proviso to Section 61(2) of IBC.

The Bench was adjudicating an application for condonation of delay in filing of appeal wherein the Appellant had filed the appeal on exactly on the 45^th day after obtaining certified copy of order. The delay of beyond 30 days in filing of appeal had occurred due to the time was consumed in obtaining legal opinion and engaging a counsel. The Bench dismissed the application.

NCLAT Delhi: Benefit Under Section 17 Of Limitation Act Is Not Available When Fraud Was Played In Creditor Company And Not In Company Of Corporate Debtor

Case Title: Gyan Chandra Misra RP for Three C Green Developers Pvt. Ltd. Vs. Three C Universal Developers Pvt.

Case No.: Company Appeal (AT) (Insolvency) No.1316 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), Delhi Bench, comprising of Justice Ashok Bhushan (Chairperson), Mr. Barun Mitra (Technical Member) and Mr. Arun Baroka (Technical Member), has that benefit under Section 17 of the Limitation Act, 1963 for filing a belated claim is not available when the fraud was played in the Creditor Company and not in the company of the Corporate Debtor.

NCLAT Delhi: Appellants Who Filed Their Claims As Real Estate Allottees Are A Part Of Home Buyers And Cannot Ask Refund Separately

Case Title: Rajib Biswas & Anr. Vs Arena Superstructures Pvt. Ltd. & Ors.

Case No.: Comp. App. (AT) (Ins) No. 1488 of 2022 & I.A. No. 4701 of 2022

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 Appellants, who have filed their claims as Real Estate Allottees, are considered part of the home buyers. Therefore, if the home buyers have already been represented by an authorized representative who has approved the resolution plan, the Appellants cannot ask for a refund separately.

In Absence Of Rental Agreement Between Parties, RP Can't Demand Payment Of Usage Charges For Corporate Debtor's Machine; NCLAT Delhi

Case Title: Patsons Construction v Shri Ram Ratan Kanoongo

Case No.: Company Appeal (AT) (Ins.) No. 1269 of 2022

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson), Shri Barun Mitra (Technical Member) and Shri Arun Baroka (Technical Member), has set aside a direction passed by the NCLT requiring a creditor to pay usage charges of a machine to the Corporate Debtor in absence of any rental agreement.

Prior to initiation of CIRP, the Corporate Debtor had given its Machine to an Operational Creditor to settle certain outstanding payments. The Operational Creditor was in possession of Machine for 2 years. Post CIRP commencement, the Resolution Professional filed an application before NCLT seeking handover of the Machine and payment of usage charge by the Operational Creditor to the Corporate Debtor at the rate of Rs. 2 Lakhs per month (total Rs. 48 Lakhs). The Bench held that in absence of any rental agreement between Parties in respect of the Machine, no usage charges can be demanded by the Resolution Professional.

NCLAT Delhi: Appellants Who Filed Their Claims As Real Estate Allottees Are A Part Of Home Buyers And Cannot Ask Refund Separately

Case Title: Rajib Biswas & Anr. Vs Arena Superstructures Pvt. Ltd. & Ors.

Case No.: Comp. App. (AT) (Ins) No. 1488 of 2022

The National Company Law Appellate Tribunal (“NCLAT”), Delhi Bench, comprising of Justice Rakesh Kumar Jain (Judicial Member) and Mr. Naresh Salecha (Technical Member), has held that the Appellants, who have filed their claims as Real Estate Allottees, are considered part of the home buyers. Therefore, if the home buyers have already been represented by an authorized representative who has approved the resolution plan, the Appellants cannot ask for a refund separately.

Corporate Debtor Denying Liability Prior To Issuance Of Demand Notice Is Pre Existing Dispute: NCLAT New Delhi

Case title: Panjwani Electrical Engineers and Consultants v Larsen And Toubro Ltd.

Case No.: Company Appeal (AT) (Insolvency) No.1399 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson), Shri Barun Mitra (Technical Member) and Shri Arun Baroka (Technical Member), has held that when Corporate Debtor denied its liability to pay even prior to issuance of Demand Notice under Section 8 of IBC, then the petition under Section 9 of IBC is liable to be dismissed on the ground of pre-existing dispute.

NCLAT Delhi: Doctrine Of Promissory Estoppel Can't Be Applied Against An Approved Resolution Plan

Case Title: Fervent Synergies Limited VS Manish Jaju

Case No.: Company Appeal (AT) (Insolvency) No.1338 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), Delhi Bench, comprising of Justice Ashok Bhushan (Chairperson), Mr. Barun Mitra (Technical Member) and Mr Arun Baroka (Technical Member), has held that the doctrine of promissory estoppel cannot be applied against an approved Resolution Plan by the Committee of Creditors (“CoC”) under IBC.

“The mandatory contents of the Resolution Plan are laid down in the CIRP Regulations, 2016. If a Resolution Plan is compliant with the provision of Section 30, sub-section (2) of the IBC and the provisions of the Regulations, 2016, the Plan cannot be faulted on the ground of the promissory estoppel, which the Appellant is pressing against the Resolution Professional, who has admitted the claim.”

Section 7 Petition Seeking 'Joint' CIRP Of Separate Corporate Entities Involved In Common Real Estate Project Is Maintainable: NCLAT Delhi

Case title: Mist Avenue Pvt. Ltd. v Nitin Batra & Ors. and connected matters.

Case No.: Company Appeal (AT) (Insolvency) No. 127 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Barun Mitra (Technical Member), has held that a petition under Section 7 of IBC, filed by allottees for joint CIRP of separate corporate entities involved in a common real estate project is maintainable.

Three separate companies were engaged in the development of a real estate project. When the construction of units was not completed within time, the Allottees filed a Section 7 petition under IBC, seeking initiation of joint CIRP against all three companies involved. The NCLAT while upholding the maintainability of such Section 7 petition, has observed as under:

“All the three Appellants being involved with the one single project in which the allottees have been allotted units, all are necessary ingredients of any resolution which may help the allottees to receive their units, in absence of any of the appellants in Corporate Insolvency Resolution Process, Resolution of project and revival of the Resolution of project is impossible………We are in agreement with the view expressed by the Adjudicating Authority that Section 7 Application filed against all the three appellants together is maintainable. The three appellants being part of one Common Real Estate Project and the Applicants of Section 7 Application being part of the said project they had every right to initiate Section 7 Application against all the three appellants together.”

CIRP Under Section 7 Can Commence Even If Claims Of Certain Allottees Are Time Barred Or Below Threshold Of Rs. 1 Crore: NCLAT Delhi

Case title: Mist Avenue Pvt. Ltd. v Nitin Batra & Ors. and connected matters.

Case No.: Company Appeal (AT) (Insolvency) No. 127 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Barun Mitra (Technical Member), has held that in a petition under Section 7 of IBC jointly filed by real estate allottees, the debt of each individual allottee need not meet the minimum threshold of Rs. 1 Crore default or limitation requirements. The CIRP under Section 7 of IBC can commence even if only few Financial Creditors (allottees) fulfill the minimum threshold of Rs. 1 Crore default.

“The provision of Section 7(1) Second Proviso inserted by Act No. 1 of 2020 having been explained by the Hon'ble Supreme Court, the law is well settled that all applicants who have joined the Section 7 Application have not fulfilled the threshold individually nor claim of all the applicants individually has to be within time in event there is default of more than Rs. 1 Crore and default of Rs. 1 Crore on basis of which the application is filed is well within time. The mere fact that claim of some other barred by time is insignificant. Application under Section 7 of the Code triggered when default of Rs. 1 Crore qua some of the applicant or some other financial creditors is fulfilled, Insolvency Resolution Process under Section 7 can commence.”

Requirement Of Minimum 100 Allottees Under Section 7 To Be Met At The Date Of Filing, Subsequent Settlement By Allottees Inconsequential: NCLAT Delhi

Case title: Mist Avenue Pvt. Ltd. v Nitin Batra & Ors. and connected matters.

Case No.: Company Appeal (AT) (Insolvency) No. 127 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Barun Mitra (Technical Member), has held that requirement of minimum 100 allottees to file a petition under Section 7 of IBC is to be met on the date of filing of the petition. If any allottee(s) enter settlement with the Corporate Debtor post filing of the petition, then they are not required to be excluded from the count of 100 allottees.

“In Manish Kumar itself it has been answered that requirement of threshold under proviso in Section 7(1) must be fulfilled as on the date of filing of the Application. The fact that eight allottees have settled the matter is thus inconsequential and eight allottees cannot be excluded in the counting of 100 allottees which are required to be fulfilled as threshold.”

Application For Certified Copy Filed Beyond Limitation, Not Entitled To Exclude Time In Preparation Of Certified Copy: NCLAT

Case Title: Nipan Bansal v Employees Provident Fund Organization

Case No.: Company Appeal (AT) (Insolvency) No. 1454 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson), Shri Barun Mitra (Technical Member) and Shri Arun Baroka (Technical Member), has held that when the application for obtaining certified copy of an NCLT order is submitted beyond the limitation period for filing of appeal (i.e. 30 days), then the Appellant is not entitled to exclude the time consumed in preparation of certified order from the period of limitation for filing of appeal before NCLAT.

“When the application is filed beyond the period of limitation, the Appellant is not entitled to exclude the period during which period certified copy remains under preparation. Thus, the Appellant is not entitled for any exclusion of the period during which copy was under preparation.”

NCLAT Delhi: Refusal To Rehear A Matter After Reserving An Order In A Company Petition Does Not Result In A Miscarriage Of Justice

Case Title: Loramitra Rath Vs JM Financial Asset

Case No.: Company Appeal (AT)(Insolvency) No. 1359 & 1360 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), Delhi Bench, comprising of Justice Ashok Bhushan (Chairperson), Mr. Barun Mitra (Technical Member) and Mr Arun Baroka (Technical Member), has held that refusal to rehear a matter after reserving an order in a company petition does not result in a miscarriage of justice.

NCLAT Delhi: Scope Of Enquiry By The Adjudicating Authority Under Section 31 Is Confined To Section 30(4) Compliance

Case Title: Sita Chaudhary Vs Haryana Telecom Limited

Case No.: Company Appeal (AT)(Insolvency) No. 727-728 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), Delhi Bench, comprising of Justice Ashok Bhushan (Chairperson) and Mr. Barun Mitra (Technical Member), has dismissed an appeal and held that the scope of enquiry of the National Company Law Tribunal (“NCLT”) as per Section 31 of IBC is confined to scrutinising whether Section 30(4) IBC has been complied with.

The Bench further pointed out that when the Appellant did not challenge the Corporate Insolvency Resolution Process (“CIRP”) and the admission and constitution of the Committee of Creditors (“CoC “) at the right point of time, it cannot ask for rejection of the duly approved resolution plan.

NCLAT Delhi Upholds Initiation Of Insolvency Proceedings Against Birla Tyres Ltd., A B.K. Birla Group Company

Case title: Manav Investment & Trading Company Limited v SRF Limited & Anr.

Case No.: COMPANY APPEAL (AT) (Insolvency) No. 692 of 2022

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench, comprising of Justice Rakesh Kumar Jain (Judicial Member) and Shri Naresh Salecha (Technical Member), has upheld the order whereby the NCLT had initiated Corporate Insolvency Resolution Process (“CIRP”) against Birla Tyres Ltd.

Birla Tyres Ltd. is a part of B.K. Birla Group of Companies. In 1991, it was incorporated as a part of Kesoram Industries Ltd. but was later demerged in 2018 as a part of re-structuring plan. In Financial Year 2021, Birla Tyres had made losses to the tune of Rs 287.63 Crore, while total revenue stood at Rs 153.11 Crore

NCLAT Delhi: Distribution To Secured Creditor Must Be Made As Per Admitted Claim And Not As Per Security Interest Over Assets Of Corporate Debtor

Case Title: ICICI Bank Limited vs BKM Industries Limited

Case No.: Company Appeal (AT) (Insolvency) No.405 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), Delhi Bench, comprising Justice Ashok Bhushan (Chairperson), Mr. Barun Mitra (Technical Member) and Mr Arun Baroka (Technical Member), has held that distribution to Secured Creditor must be made as per admitted claim and not as per Security interest over assets of the Corporate Debtor. The Bench observed that a dissenting financial creditor is entitled to the liquidation value of his debt and the distribution among creditors is determined by the commercial wisdom of the Committee of Creditors (“CoC”).

Resolution Plan Providing For Extinguishment Of Personal Guarantees & Securities Of Dissenting Financial Creditors Is Not Violative Of Section 30(2) Of IBC: NCLAT Delhi

Case Title: Puro Naturals JV v Warana Sahakari Bank & Ors.

Case No.: Company Appeal (AT) (Insolvency) Nos.661-663 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Barun Mitra (Technical Member), has held that a resolution plan providing for extinguishment of security interest and personal guarantees of dissenting financial creditors is not violative of Section 30(2) of IBC.

The Bench has approved the Resolution Plan submitted by Puro Naturals JV for Shivaji Cane Processors Limited.

No Provision In IBC For Upfront Payment To Dissenting Financial Creditors On Resolution: NCLAT Delhi

Case Title: Puro Naturals JV v Warana Sahakari Bank & Ors.

Case No.: Company Appeal (AT) (Insolvency) Nos.661-663 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Barun Mitra (Technical Member), has held that there is no provision under IBC which requires the Successful Resolution Applicant to make upfront payment to Financial Creditors who dissented to the resolution plan.

The resolution plan proposed to make upfront payment to assenting Financial Creditors within 90 days, whereas the payment to dissenting Financial Creditors was to be made in three years. The dissenting Financial Creditor contended that they should be paid upfront. The Bench held as under:

“There is no provision which can be pointed out, which requires Successful Resolution Applicant to make upfront payment to the dissenting Financial Creditors. What is required by law is the payment “in priority over the Financial Creditors who voted in favour of the plan”.”

NCLAT Delhi: Period Of Limitation For Filing An Appeal U/S 61 Of IBC Starts From Date Of The Rectification Order; Rectification Order Merges With The Original Order

Case Title: Ashok Tiwari vs Tattva & Mittal Lifespaces Private Limited

Case No.: Company Appeal (At) (Insolvency) No. 729 Of 2023

The National Company Law Appellate Tribunal (“NCLAT”), Delhi Bench, comprising of Justice Anant Bijay Singh (Judicial Member) and Mr Ajai Das Mehrotra (Technical Member), has held that the rectification Order of NCLT merges with the Original Order and the period of Limitation for filing an appeal under Section 61 of IBC starts from the date of the rectification Order.

NCLAT Delhi: National Financial Reporting Authority Has Overriding Powers To Penalise CAs For Professional Misconduct

Case Title: Mr Harish Kumar T.K vs National Financial Reporting Authority

Case No.: COMPANY APPEAL (AT) NO. 87 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), Delhi Bench, comprising Justice Rakesh Kumar Jain (Judicial Member) and Mr. Naresh Salecha (Technical Member), has upheld the penalty imposed by the National Financial Reporting Authority (“NFRA/Respondent”) on the auditors of Dewan Housing Finance Corporation Ltd (“DHFL”). The ruling confirms that NFRA has the right to issue a penalty retrospectively when there is misconduct.

NCLAT clarified that NFRA holds superior and overriding powers over the Institute of Chartered Accountants of India (“ICAI”) in cases related to the professional misconduct of Chartered Accountants.

“NFRA has superior and overriding powers in matters relating to professional misconduct of the Chartered Accountants in terms of Section 132 of Companies Act, 2013 … We may conclude NFRA has been consciously and deliberately given superior authority over ICAI on oversight of auditors and in disciplinary matters as stipulated in Section 132 of Companies Act, 2013 After taking into consideration the background for forming NFRA, the judgment of the Apex Court, proven scams, need to restore shaken confidence of public and investors at large and prevent any adverse impact on Indian economy, we hold that NFRA has clear and required retrospective jurisdiction over the alleged offences by delinquent Chartered Accountants for period prior to formation of NFRA or prior to coming into effect relevant portion of Section 132 of Companies Act, 2013,”

NCLAT New Delhi: Raising Of Amount Via Share Subscription-Cum-Shareholders Agreement Is A Commercial Borrowing And Constitutes 'Financial Debt' Under IBC

Case Title: Sanjay D. Kakade vs. HDFC Ventures Trustee Company Ltd.

Case No.: Company Appeal (AT) (Insolvency) No.481 of 2023

The National Company Law Appellate Tribunal ('NCLAT'), New Delhi Bench, comprising of Mr. Justice Ashok Bhushan (Chairperson) and Mr. Barun Mitra (Technical Member), has held that raising of amount through Share Subscription-cum-Shareholders Agreement is a commercial borrowing and constitutes 'Financial Debt' under IBC.

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.

Condition To Submit Refundable BG, Not Violative 36-B Of CIRP Regulations: NCLAT Delhi

Case Title: Rakesh Ranjan v Fanendra Harakchand Munot & Anr.

Case No.: Company Appeal (AT) (Insolvency) No. 1352 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson), Shri Barun Mitra (Technical Member) and Shri Arun Baroka (Technical Member), has held that if the Request For Resolution Plan (RFPR) requires the resolution applicant(s) to submit a refundable Bank Guarantee, then such condition is not violative of Regulation 36-B of IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (“CIRP Regulations”).

Regulation 36-B of CIRP Regulations states that in a RFPR there can be no requirement for a non-refundable deposit alongwith resolution plan. The Bench has upheld the decision of Committee of Creditors to reject a resolution plan which did not comply with the requirement of submitting a refundable Bank Guarantee alongwith plan.

Homebuyers Or Unsuccessful Resolution Applicant Not Entitled To File Avoidance Application: NCLAT Delhi

Case title: Ms. Amita Saurabh Bihani & Ors. v E&G Global Estates Limited & Ors.

Case No.: Company Appeal (AT)(Insolvency) No. 1214 & 1215 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench, comprising of Justice Ashok Bhushan (Chairperson), Shri Barun Mitra (Technical Member) and Shri Arun Baroka (Technical Member), has held that as per Section 25(2)(j) of IBC the Resolution Professional alone is empowered to file application for avoidance of transactions which are preferential, fraudulent, undervalued or extortionate in nature. The Homebuyer of the Corporate Debtor's real estate project or the unsuccessful resolution applicant is not entitled to file any application for avoidance of transactions under IBC.

CIRP And Avoidance Application Separate Set Of Proceedings, Adjudication Of Avoidance Application Can Survive CIRP: NCLAT Delhi

Case title: G.S. Constructions v E & G Global Estates Ltd. & Ors.

Case No.: Company Appeal (AT)(Insolvency) No. 1217 & 1218 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench, comprising of Justice Ashok Bhushan (Chairperson), Shri Barun Mitra (Technical Member) and Shri Arun Baroka (Technical Member), has held that Corporate Insolvency Resolution Process (“CIRP”) and proceedings for avoidance of transactions are separate set of proceedings. If an avoidance application filed by Resolution Professional is pending adjudication, then the same would not stall the approval of resolution plan by NCLT. Similarly, an avoidance application can survive CIRP.

“CIRP and avoidance applications are, thus by their very nature, a separate set of proceedings. The former is time bound whereas the latter requires a proper discovery of suspect transactions that are time consuming. The scheme of the IBC reinforces this difference and thus adjudication of an avoidance application is independent of the resolution of the corporate debtor and can survive CIRP.”

NCLAT Delhi: Auction Purchaser In Liquidation Proceedings Entitled For Certain Consequential Reliefs

Case Title: Punjab National Bank (International Limited) vs Perfect Day INC

Case No.: Company Appeal (AT) (Insolvency) No.1427 of 2022

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising Justice Ashok Bhushan (Chairperson) and Mr. Barun Mitra (Technical Member) has held that the Successful Auction Purchaser can be given certain reliefs and concession consequent to going concern sale in the liquidation proceeding of Corporate Debtor.

NCLT Ahmedabad Directs Income Tax Department To Refund Tax To Corporate Debtor; Section 53 Of IBC Overrides Sec. 194-IA Of Income Tax Act

Case Title: Sunil Kumar Agarwal v Chief Commissioner of Income Tax (TDS), Ahmedabad

Case No.: CP(IB) 149 of 2017

The National Company Law Tribunal (“NCLT”), Ahmedabad Bench, comprising of Mrs. Chitra Hankare (Judicial Member) and Dr. Velamur G Venkata Chalapathy (Technical Member), has held that Income Tax deducted and paid by the auction purchaser amounts to recovery of tax from Corporate Debtor (which is under liquidation), on priority with other creditors as mentioned in Section 53 of IBC, which is against the object and provisions of IBC.

The Liquidator sold the assets of the Corporate Debtor in e-auction to successful purchasers, who deducted Rs. 28,92,101/- towards 1% TDS payable in view of Section 194-IA of the Income Tax Act, 1963. The Bench has directed the Income Tax Department to refund the amount of Rs. 28,92,101/- to the Corporate Debtor.

NCLT Mumbai: Buyer In Liquidation Auction Sale Can't Step Back On Ill-Founded Ground Of Absence Of NCLT's Order Extending Period To Conclude Sale

Case Title: Melkar TTI Biofuels Ltd. vs. Mr. Dharit Kishorbhai Shah

Case No.: Company Petition (IB) No. 3610/MB/2019

The National Company Law Tribunal ('NCLT'), Mumbai Bench, comprising Justice Shri V.G. Bisht (Judicial Member) and Shri Prabhat Kumar (Technical Member), held that a Buyer in a Liquidation Auction sale can't be allowed to step back on the ill-founded ground of the absence of an Order of NCLT extending the period of 90 days to conclude the sale.

NCLT Mumbai: Substance Of A Transaction Is Important Over Its Form, Accounting Entries Can Not Determine Character And Nature Of Transaction

Case Title: Mr. Rakesh Bothra vs. Mr. Alok Kailash Saksena

Case No.: I.A. 812 of 2023 in C.P.(IB) No. 1807/MB/2018

The National Company Law Tribunal (NCLT), Mumbai Bench, comprising of Justice Shri V.G. Bisht (Judicial Member) and Shri Prabhat Kumar (Technical Member) has held that the substance of a transaction is important rather than its form and accounting entries cannot determine the character and nature of a transaction.

NCLT Mumbai: Unspent Balance And Refundable Security Deposit Of Prepaid And Postpaid Subscribers Constitutes 'Operational Debt' (Other Than Government Dues)

Case Title: Telecom Regulatory Authority of India Vs. Reliance Telecom Ltd.

Case No.: I.A. 88 of 2020 in C.P. (IB)No.1386/MB/2017

The National Company Law Tribunal ('NCLT'), Mumbai Bench, comprising Justice Shri V.G. Bisht (Judicial Member) and Shri Prabhat Kumar (Technical Member), has held that the unspent balance of Prepaid Subscribers and the Refundable Security Deposit of Postpaid Customers shall be treated as Operational Debt (other than Government dues) under IBC concerning telecom insolvency.

NCLT Kolkata Approves Resolution Plan For McNally Bharat Engineering Company Ltd

Case Title: Bank of India v McNally Bharat Engineering Company Limited

Case No.: I.A. (IB) No. 1391/KB/2023 in CP (IB) No. 891/KB/2020

The National Company Law Tribunal (“NCLT”), Kolkata Bench, comprising of Shri Rohit Kapoor (Judicial Member) and Shri Balraj Joshi (Technical Member), has approved the Resolution Plan submitted by BTL EPC Limited (part of Shrachi Group) for McNally Bharat Engineering Company Limited.

The Resolution Plan is valued at Rs. 441.11 Crores, while the total admitted claims of the Corporate Debtor amounts to Rs. 5,015.28 Crores.

NCLT Mumbai Approves Resolution Plan For Reliance Communications Infrastructure Ltd., Valued At Rs 455.9 Crores As Against Total Admitted Claim Of Rs 47,251 Crores

Case Title: State Bank of India v Reliance Communications Infrastructure Limited

Case No.: IA No. 2429 of 2021 in CP (IB) No. 3025 of 2019

The National Company Law Tribunal (“NCLT”), Mumbai Bench, comprising of Justice Virendrasingh G. Bisht (Retd.) (Judicial Member) and Shri Prabhat Kumar (Technical Member), has approved the Resolution Plan submitted by Reliance Projects & Property Management Services Ltd. (wholly owned subsidiary of Mr. Mukesh Ambani promoted Reliance Industries Ltd.) for Reliance Communications Infrastructure Ltd., which is a subsidiary of Reliance Communications Ltd. previously being run by Anil Ambani.

The Resolution Plan is valued at Rs. 455.9 Crores, while the total admitted claims against the Corporate Debtor amounts to Rs. 47,251 Crores.

NCLT Guwahati Bench: Amount Given As Investment For Joint Venture By Financial Creditor To Corporate Debtor Is Not Financial Debt Under IBC

Case Title: Chiragsala Sales Pvt. Ltd vs Vaishno Devi Traders Private Limited

Case No.: CP (IB) No.33/GB/2022

The National Company Law Tribunal (“NCLT”), Guwahati Bench, comprising of Shri H. V. Subba Rao (Judicial Member) and Shri Satya Ranjan Prasad (Technical Member), has held that the amount given to a Corporate Debtor by a Financial Creditor by way of an investment for a Joint Venture does not fall within the definition of a financial debt as per the provisions of Insolvency and Bankruptcy Code, 2016 (“IBC”).

NCLAT New Delhi: RERA Has Locus To Appeal Against CIRP Initiation Order And Is An “Aggrieved Person” U/S 61 Of IBC

Case Title: Real Estate Regulatory Authority vs. D.B. Corp Ltd. & Anr.

Case No.: Company Appeal (AT) (Insolvency) No.1172-1173 of 2022

The National Company Law Appellate Tribunal ('NCLAT'), New Delhi Bench, comprising Justice Ashok Bhushan (Chairperson) and Shri Barun Mitra (Technical Member), has held that the Real Estate Regulatory Authority ('RERA') has locus to challenge Corporate Insolvency Resolution Process ('CIRP') initiation Order in Real Estate Insolvency in appeal under Section 61 of IBC before NCLAT.

NCLAT New Delhi: Barter Agreements Don't Constitute 'Operational Debt'

Case Title: Real Estate Regulatory Authority vs. D.B. Corp Ltd. & Anr.

Case No.: Company Appeal (AT) (Insolvency) No.1172-1173 of 2022

The National Company Law Appellate Tribunal ('NCLAT'), New Delhi Bench, comprising Justice Ashok Bhushan (Chairperson) and Barun Mitra (Technical Member), has held that the Corporate Insolvency Resolution Process ('CIRP') cannot be initiated under Section 9 of Insolvency and Bankruptcy Code, 2016 ('IBC') based on Barter Agreement/Transactions.

NCLAT New Delhi: Inter-Corporate Deposit In A Joint Venture Can't Be Construed As A 'Financial Debt' Under IBC

Case Title: Ansal Housing Ltd. Vs. Samyak Projects Pvt. Ltd.

Case No.: Company Appeal (AT)(Insolvency) No. 542 of 2023

The National Company Law Appellate Tribunal ('NCLAT'), New Delhi Bench, comprising Justice Ashok Bhushan (Chairperson) and Shri Barun Mitra (Technical Member) has held that financial assistance given by one party to another in a Joint Venture Agreement ('JVA') by way of an Inter-Corporate Deposit ('ICD') to develop a real estate project jointly cannot be construed as a 'Financial Debt' in terms of IBC.

NCLT

NCLT Kochi Initiates Insolvency Process Against Personal Guarantor Of Trivandrum International Health Services Ltd.

Case Title: Dhanalaxmi Bank Ltd. v Dr. Bharath Chandran

Case No.: CP (IBC)/24/KOB/2022

The National Company Law Tribunal (“NCLT”), Kochi Bench, comprising of Shri. P. Mohan Raj (Judicial Member) and Shri. Satya Ranjan Prasad (Technical Member), has initiated Insolvency Resolution Process against Dr. Bharath Chandran, the personal guarantor and Promoter of M/s. Trivandrum International Health Services Ltd. The NCLT Bench observed that the Guarantor admitted the Deed of Guarantee, agreed to the terms therein unconditionally and also gave consent to the Creditor and the Borrower to vary the terms of the contract and securities.

NCLT Delhi Rejects Scheme Of Amalgamation For Being Non Compliant Of Section 72A(2) Of Income Tax Act

Case Title: Minda TG Rubber Pvt. Ltd. v Toyoda Gosei Minda India Pvt. Ltd

Case No.: Company Petition (CAA) No. 111 (ND)/2021

The National Company Law Tribunal (“NCLT”), New Delhi Bench, comprising of Shri Bachu Venkat Balaram Das (Judicial Member) and Shri L.N. Gupta (Technical Member), has rejected the Scheme of Amalgamation proposed by Minda TG Rubber Pvt. Ltd. for being non compliant of Section 72A(2) of the Income Tax Act, 1961. The Bench observed that the Scheme of Amalgamation was not compliant of Section 72A(2), as there was no undertaking that the Transferee Company shall not dispose of all the assets; shall hold at least three-fourths of the book value of fixed assets of the Transferor Company for at least 5 years; and it shall continue business of the Transferor Company for the next five years. The Bench declined to allow the carry forward and set off of loss and unabsorbed depreciation of Transferor Company in the Transferee Company, which is a condition stipulated in the Scheme.

NCLT Delhi Dismisses Insolvency Plea Against Hindustan Times; “Not A Dispute Redressal Forum”

Case Title: M/s JHS Svendgaard Ltd. v M/s HT Media Ltd.

Case No.: (IB) 400 ND/2022

The National Company Law Tribunal (“NCLT”), New Delhi Bench, comprising of Shri Bachu Venkat Balaram Das (Judicial Member) and Shri L.N. Gupta (Technical Member), has declined to initiate Corporate Insolvency Resolution Process (CIRP) against Hindustan Times (HT Media Ltd.). The Bench further held that NCLT is not a dispute redressal forum. HT Media Ltd. (“Corporate Debtor”) is a mass media company engaged in the business of print, electronic and digital media. HT media's flagship newspaper is Hindustan Times.

NCLT Mumbai Approves Adani Goodhome's Resolution Plan For Radius Estates & Developers

Case Title: Beacon Trusteeship Ltd. v Radius Estates and Developers Pvt. Ltd.

Case No.: CP (IB) No: 1390 of 2020

The National Company Law Tribunal (“NCLT”), Mumbai Bench, comprising of Shri Kuldip Kumar Kareer (Judicial Member) and Smt. Anuradha Sanjay Bhatia (Technical Member), has approved the Resolution Plan submitted by M/s. Adani Goodhomes Pvt. Ltd. for Radius Estates and Developers Pvt. Ltd. Radius Estates and Developers Pvt. Ltd. (“Corporate Debtor”) entered into a joint venture as co-developer with the MIG (Bandra) Realtors and Builders Pvt. Ltd., for redevelopment of a land situated at Bandra (East) Mumbai (“Project”). The Project included construction of residential flats/units for: (i) rehabilitation of the members of the Middle-Income Group Co-operative Housing Society; and (ii) as part of the free-sale component.

NCLT Delhi Admits Unibera Developers Into Insolvency

Case Title: Mahi Buildhome Pvt. Ltd. v M/s. Unibera Developers Pvt. Ltd.

Case No.: (IB)-505(ND)2022

The National Company Law Tribunal (“NCLT”), New Delhi Bench, comprising of Shri Ashok Kumar Bhardwaj (Judicial Member) and Shri L. N. Gupta (Technical Member), has initiated Corporate Insolvency Resolution Process against Unibera Developers Pvt. Ltd. Mr. Ashok Kumar Jalan has been appointed as the Interim Resolution Professional (IRP). Unibera Developers Pvt. Ltd. (“Corporate Debtor”) is engaged in the development of residential, commercial and government real estate projects. The Corporate Debtor's projects are located in NOIDA, Greater NOIDA, Ghaziabad and Bihar.

NCLT Mumbai Approves Promoter's Resolution Plan For Srithik Ispat Pvt. Ltd.

Case Title: Swastik Coal Corporation Pvt. Ltd. v Srithik Ispat Pvt. Ltd

Case No.: CP (IB) No.4549/MB-IV/2018

The National Company Law Tribunal (“NCLT”), Mumbai Bench, comprising of Shri Kishore Vemulapalli (Judicial Member) and Shri Manoj Kumar Dubey (Technical Member), has approved the resolution plan submitted by the Promoter of the Corporate Debtor (Srithik Ispat Pvt. Ltd.). The Corporate Debtor is engaged in the business of iron sponge manufacturing in Goa.

NCLT Hyderabad Grants A Series Of Concessions/Waivers To The Successful Bidder

Case Title: State Bank of India v K.R.R Infraprojects Pvt. Ltd.

Case No.: CP (IB) No.430/7/HDB/2020

The National Company Law Tribunal (“NCLT”), Hyderabad Bench, comprising of Dr. Venkata Ramakrishna Badarinath Nandula (Judicial Member) and Shri Sri Satya Ranjan Prasad (Technical Member), has granted several waivers/concessions to the Successful Bidder including waiver from penalties imposed by Registrar of Companies and other authorities. Further, the Bench has granted the Successful Bidder the liberty to approach the concerned authority for seeking offset of any loses as per Income Tax Act against future profits; and clearance from the secured financial creditors and filing of satisfaction of charge by them. The new management shall also not be liable for any payment arising out of the contingent liabilities on account of bank guarantees.

NCLT Prescribes Dress Code For Members, Lawyers, RP, Authorized Representative & Parties In Person

File No.: 25/02/2023-NCLT

The National Company Law Tribunal (“NCLT”) has issued an order dated 27.01.2023 specifying the following dress code:

· President and Members: Long trousers (White/Black, Black striped or Grey), National Dress with a shirt and collar band alongwith a black coat/buttoned up black coat. The Female President or Member are directed to wear a sober coloured saree, national dress and collar band with a black coat/buttoned up black coat.

• Legal Practioners: the dress code prescribed under the Bar Council of India Rules under Section 49(1)(gg) of the Advocates Act, 1961.
• Authroized Representative (Chartered Accountant, Company Secretary, Cost Accountant): professional dress, if any prescribed under their respective code of conduct. In case no dress code is prescribed, a male member shall wear sober coloured dress/national dress with a buttoned up coat, or a coat with tie. A female member shall wear a sober coloured saree or formal national dress. A suit or buttoned up coat is optional.
• Resolution Professional/Interim Resolution Professional: A male member shall wear sober coloured dress/national dress, a suit or buttoned up coat and tie. A female member shall wear a sober coloured saree or formal national dress. A suit or buttoned up coat is optional.
• Parties in person: national dress in a sober colour.

TDS Payments Do Not Amount To An Acknowledgement Of Debt: NCLT

Case Title: Kalpesh Jaysukh Shah versus M/s Arch Pharmalabs Limited

Case No.: CP (IB) 3460/MB/2019

The National Company Law Tribunal (“NCLT”), Mumbai Bench, comprising of Justice P.N. Deshmukh (Judicial Member) and Shri Shyam Babu Gautam (Technical Member), has held that TDS (tax deducted at source) payments do not amount to an acknowledgment of debt. Reliance was placed on the NCLAT judgment in P.M. Cold Store Pvt. Ltd. v. Goouksheer Farm Fresh Pvt. Ltd. & Anr., in which it was held that the fact that the corporate debtor has paid TDS on interest payable cannot be considered as an acknowledgment in writing of the liability by the corporate debtor, and therefore, such a TDS payment will not have any effect as an acknowledgment of the debt.

NCLT Hyderabad Invokes Rule 153; Permits Filing Of Rejoinder Post Closure Of Opportunity

Case Title: State Bank of India & Ors. v India Power Corporation Limited

Case No.: CP (IB) NO. 205/7/HDB/2021

The National Company Law Tribunal (“NCLT”), Hyderabad Bench, comprising of Dr. Venkata Ramakrishna Badarinath Nandula (Judicial Member) and Dr. Binod Kumar Sinha (Technical Member), invoked its powers under Rule 153 of the NCLT Rules and permitted the Financial Creditor to file its Rejoinder, even after the opportunity to do so stood closed by an earlier order of NCLT. The Bench further held that an application to condone the delay and to receive the Rejoinder which was filed post closure of opportunity, is not in the nature of a Review Application. The Bench treated such application as an application for condonation of delay.

No Simultaneous CIRP Proceedings Against Same Corporate Debtor: NCLT Ahmedabad

Case Title: Vrundavan Residency Pvt. Ltd. v Mars Remedies Pvt Ltd.

Case No.: CP (IB) 300/NCLT/AHM/2020

The National Company Law Tribunal (“NCLT”), Ahmedabad Bench, comprising of Dr. Deepti Mukesh (Judicial Member) and Shri Ajai Das Mehrotra (Technical Member), has held that there cannot be simultaneous CIRP proceedings against the same Corporate Debtor. The Bench declined to initiate CIRP against a Corporate Debtor which was already admitted into CIRP, but the Supreme Court had stayed the CIRP proceedings during pendency of an appeal.

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.

Resolution Applicant Wilfully Fails To Implement Plan, NCLT Mumbai Orders Liquidation Without Monitoring Committee's Mandate

Case Title: BMW Financial Services Pvt. Ltd. v S.K. Wheels Pvt. Ltd.

Case No.: C.P.(I.B.) No. 4301 of 2018

The National Company Law Tribunal (“NCLT”), Mumbai Bench, comprising of Shri H.V. Subba Rao (Judicial Member) and Ms. Madhu Sinha (Technical Member), has ordered liquidation of the Corporate Debtor as the Resolution Applicant willfully failed to implement the resolution plan. The order of liquidation has been made without the mandate of the Implementation and Monitoring Committee (IMC) and to secure the asset value of the Corporate Debtor. Further, action has been initiated under Section 74 of IBC to penalize the Resolution Applicant for wilful non-implementation of the plan.

NCLT Mumbai Initiates Insolvency Proceedings Against Siti Networks Ltd.

Case Title: Indusind Bank Ltd. v Siti Networks Ltd.

Case No.: C.P. No. 690/IBC/MB/2022

The National Company Law Tribunal (“NCLT”), Mumbai Bench, comprising of Shri H.V. Subba Rao (Judicial Member) and Ms. Madhu Sinha (Technical Member), has initiated Corporate Insolvency Resolution Process (“CIRP”) against Zee Entertainment Enterprises Ltd. Mr. Rohit Mehra has been appointed as the Interim Resolution Professional. Siti Networks Ltd. (“Corporate Debtor”) is engaged in the business of multi-system operator and provides television services across India. Corporate Debtor is a part of the Essel Zee Group promoted by Dr. Subhash Chandra and was a 100% subsidiary of erstwhile Zee Telefilms Ltd. (now Zee Entertainment Enterprises Ltd.).

NCLT Mumbai Initiates Insolvency Proceedings Against Reliance Broadcast Network Limited

Case Title: IDBI Trusteeship Services Limited V. Reliance Broadcast Network Limited

Case No.: C.P. 310 OF 2022

The National Company Law Tribunal ('NCLT'), Mumbai bench comprising of Mr. Kuldip Kumar Kareer (Judicial Member) and Ms. Anuradha Sanjay Bhatia (Technical Member), while adjudicating an application filed by IDBI Trusteeship Services Limited, has initiated Corporate Insolvency Resolution Process (“CIRP”) against Reliance Broadcast Network Limited [“Corporate Debtor”]. Mr. Rohit Ramesh Mehra has been appointed as the interim Resolution Professional.

Excessive Amount Mistakenly Paid Can't Be Operational Debt, It's Quasi Contract: NCLT Hyderabad

Case Title: M/s. Sandvik Mining & Construction Tools AB v M/s TA Hydraulics Pvt. Ltd.

Case No.: CP(IB) No. 278/09/HDB/2020

The National Company Law Tribunal (“NCLT”), Hyderabad Bench, comprising of Dr. Venkata Ramakrishna Badarinath Nandula (Judicial Member) and Mr. Satya Ranjan Prasad (Technical Member), has held that if an Operational Creditor mistakenly pays excess sum to the Corporate Debtor, then the excess amount would not be categorized as an operational debt, if the claim is entirely based on a Quasi Contract and not on concerned purchase orders and commercial invoices in respect to supply of goods and services.

NCLT Mumbai Allows Withdrawal Of CIRP Against Meta Arch Pvt. Ltd.

Case Title: Ardex Endura (India) Private Limited v Meta Arch Private Limited

Case No.: CP(IB)/3546/(MB)/2018

The National Company Law Tribunal (“NCLT”), Mumbai Bench, comprising of Shri Kuldip Kumar Kareer (Judicial Member) and Shri Shyam Babu Gautam (Technical Member), has permitted withdrawal of CIRP against Meta Arch Private Limited. Meta Arch Private Limited (“Corporate Debtor”) is engaged in real estate development and has projects across Kenya, Pune, Mumbai, Dubai et al.

No Attachment Of Property Under PMLA Once Liquidation Commences: NCLT Jaipur

Case Title: M/s Packwell (India) Ltd. v M/s Emgee Cables and Communication Ltd

Case No.: CP No. (IB)- 601/ND/2018

The National Company Law Tribunal (“NCLT”), Jaipur Bench, comprising of Shri Deep Chandra Joshi (Judicial Member) and Shri Prasanta Kumar Mohanty (Technical Member), has held that PMLA would cease to have the power to attach the property of the Corporate Debtor, when the order of the Liquidation has already been passed.

NCLT Delhi Approves Resolution Plan For Boulevard Projects Private Limited

Case Title: SGM Webtech Private Limited V. Boulevard Projects Private Limited

Case No: CP (IB) No.967(PB)/2018

The National Company Law Tribunal (“NCLT”), Principal Bench, comprising of Justice Ramalingam Sudhakar (President) and Shri Avinash K. Srivastava (Technical Member) has approved the Resolution Plan submitted by Max Estates Limited for Boulevard Projects Private Limited which was developing a high-end real estate project Delhi One. The Resolution Plan is valued at ₹1118,38,93,145/-.

NCLT Delhi Approves Resolution Plan Of Suraksha Realty & Lakshdeep Investments & Finance For Jaypee Infratech LTD.

Case Title: IDBI Bank Limited v Jaypee Infratech Limited

Case No.: Company Petition No. (IB)-77(ALD)/2017

The National Company Law Tribunal (“NCLT”), Special Bench (New Delhi), comprising of Justice Ramalingam Sudhakar (Judicial Member) and Shri L.N. Gupta (Technical Member), has approved the Resolution Plan submitted by Consortium of M/s. Suraksha Realty Ltd. and M/s. Lakshdeep Investments & Finance Pvt. Ltd. for Jaypee Infratech Ltd. Jaypee Infratech Limited (“Corporate Debtor”) is an infrastructure development company which is engaged in the development and maintenance of the Yamuna Expressway, on a build-transfer-operate basis, as well as development of five integrated townships along the Expressway.

Debt Arising Out Of Different Work Orders Can Be Clubbed To Meet Minimum Threshold Of Rs. 1 Crore: NCLT Mumbai Reiterates

Case Title: A J Buildcon Private Limited v Patel Engineering Limited

Case No.: CP (IB) No.627/MB-IV/2021

The National Company Law Tribunal (“NCLT”), Mumbai Bench, comprising of Shri Kishore Vemulapalli (Judicial Member) and Shri Prabhat Kumar (Technical Member), has reiterated that debts arising from different work order(s) can be clubbed to satisfy the minimum threshold limit of Rs. 1 Crore under IBC. The Bench has initiated CIRP against Patel Engineering Ltd. and appointed Ms. Neeraja Kartik as the Interim Resolution Professional.

No Bar On Sale Of Corporate Debtor As A Going Concern After First Auction, Permission Of AA not required: NCLT Delhi

Case Title: Mr. Surinder Manchanda v Nolsar International Limited

Case No.: Company Petition No. (IB)-1031(ND)/2018

The National Company Law Tribunal (“NCLT”), New Delhi Bench, comprising of Shri Ashok Kumar Bhardwaj (Judicial Member) and Shri L.N. Gupta (Technical Member), has held that there is no bar on the sale of Corporate Debtor as a going concern even after the first auction has taken place and the Liquidator is not obliged to seek permission of Adjudicating Authority for conducting such sale.

When Financial Creditors Have Not Been Paid In Full, Operational Creditors Cannot Claim A Higher Amount: NCLT Ahmedabad

Case Title: Noble Resource International Pvt. Ltd. v Sona Alloys Pvt. Ltd.,

Case No.: CP (IB) No. 586 of 2019

The National Company Law Tribunal (“NCLT”), Ahmedabad Bench, comprising of Dr. Deepti Mukesh (Judicial Member) and Shri Ajai Das Mehrotra (Technical Member), has held that when Financial Creditors have not been paid in full in the Resolution Plan, the Operational Creditors cannot claim a higher amount under the same. The Bench observed that a conjoint reading of Section 30 and Section 53 of IBC shows that the Financial Creditors are placed at a higher priority than Operational Creditors. The Secured Financial Creditors are covered by Section 53(1)(b)(ii), the Unsecured Financial Creditors are covered by Section 53(1)(d). The Operational Creditors are to be considered thereafter having lower priority and are covered by Section 53(1)(f).

Petition U/S 9 IBC Can Only Be Filed After Expiry Of 10 Day Period Under Section 8(2) IBC: NCLT Mumbai

Case Title: Aypols Polymers Private Limited Vs Suvarna Fibrotech Pvt Ltd

Case No.: CP (IB) No.635/MB-IV/2020

The National Company Law Tribunal (“NCLT”) , Mumbai Bench, comprising of Shri Kishore Vemulapalli (Judicial Member) and Shri Prabhat Kumar (Technical Member), has held that Petition under Section 9 of IBC can only be filed after expiry of the 10 days period mentioned under Section 8 (2) of IBC. The Tribunal observed that the proof of service of Demand Notice was not annexed to the petition and it was unclear how was the Demand Notice served. The Tribunal noted that the Corporate Debtor has 10 days to respond to the Demand Notice under Section 8(2) of IBC. A petition under Section 9 of IBC can only be filed after expiry of 10 days provided under Section 8(2). Since the petition was filed on the very next day on which the Demand Notice was sent, the petition was not in accordance with Section 9(1) of IBC.

Insufficiency Of Stamp On Loan Documents Not Relevant For Admissibility Of Section 7 Petition: NCLT Mumbai Reiterates

Case Title: Kotak Mahindra Bank Ltd. Vs M/s Hybro Foods Private Limited

Case No.: C.P.(IB) No. 295 of 2022

The National Company Law Tribunal (“NCLT”), Mumbai Bench, comprising of Shri Kuldip Kumar Kareer (Judicial Member) and Smt. Anuradha Sanjay Bhatia (Technical Member), has reiterated that the insufficiency in the stamping of the loan documents is not a relevant ground for dismissing a petition under Section 7 of IBC. The thing which is to be verified is that whether the debt is bona fide disputed and whether the said defence is a substantial one.

Claims Not Part Of The Resolution Plan Shall Extinguish Only After Resolution Plan Approval: NCLT Mumbai Reiterates

The National Company Law Tribunal (“NCLT”), Mumbai Bench, comprising of Shri Kuldip Kumar Kareer (Judicial Member) and Shri. Shyam Babu Gautam (Technical Member), has reiterated that all claims not forming part of the Resolution Plan shall stand extinguished only after the Resolution Plan is approved by the Adjudicating Authority.

Dissenting Secured Creditor Can't Be Treated Higher Than Other Creditors U/S 53 Just Because They Enjoy Security Interest: NCLT Kolkata

Case Title: Trimurti Associates Private Limited Vs BKM Industries Limited

Case No.: C.P. (IB) No. 2078/KB/2019

The National Company Law Tribunal(“NCLT”), Kolkata Bench, comprising of Shri Rohit Kapoor (Judicial Member) and Shri. Balraj Joshi (Technical Member), has reiterated that just because a creditor enjoys security interest, it cannot be treated higher than other creditors who have financed the Corporate Debtor. The other creditors don't not enjoy the protection of a security interest and thus run the risk of not getting paid their dues from realization of security. If such creditors are treated differently, then all secured creditors would dissent in the CoC. This will not lead to maximization of value of the Corporate Debtor and will defeat the very purpose of resolution under IBC.

Dispute In The Quantum Of Debt Cannot Be A Ground For Rejection Of Insolvency Petition: NCLT Delhi Reiterates

The National Company Law Tribunal, New Delhi Bench, comprising of Shri P.S.N. Prasad (Judicial member) and Shri Rahul Bhatnagar (Technical Member), has reiterated that dispute over quantum of debt cannot be a ground for rejection of insolvency petition. The tribunal admitted the petition after observing that the petition very well qualifies the 1 Crore threshold limit for initiating Corporate Insolvency Resolution Process (“CIRP”).

Residuary Jurisdiction Of NCLT U/S 60(5)(c) of IBC, Can't Be Used To Interpret Terms Of An Agreement Relating To A Third-Party Contract: NCLT Ahmedabad

Case Title: IDBI Bank Ltd vs JBF Petrochemicals Ltd.

Case No. CP (IB) No. 232/NCLT/AHM/2018

The National Company Law Tribunal, Ahmedabad Bench, comprising of Dr. Madan B. Gosavi (Judicial Member) and Shri Ajai Das Mehrotra (Technical Member), has held that NCLT has limited residuary jurisdiction under section 60(5)(c) of IBC and that it cannot interpret the terms of an agreement relating to a third-party contract.

NCLT Shall Not Act As A Recovery Forum: NCLT Mumbai

Case Title: Satec Envir Engineering (India) Private Limited v. Indian Oil Corporation Limited

The National Company Law Tribunal, Mumbai Bench, comprising of Justice Kishore Vemulapalli (Judicial Member) and Shri Prabhat Kumar (Member Technical) has rejected the Application under Section 9 of IBC filed against Indian Oil Corporation Limited ('IOCL') by Satec Envir Engineering (India) Private Limited ('SATEC') on the ground that the tribunal cannot go into adjudication of dispute, whatsoever it may be, under IBC. NCLT made it clear that the Adjudicating Authority defined under IBC would not be an Adjudicator of disputed claims.

Section 9 Petition Not Maintainable If Principal Amount Repaid During Pendency Of Petition: NCLT Bengaluru Reiterates

Case: Ramesh Kumar Garg vs M/s Buildmet Pvt Ltd

Case No.: CP (IB) No.109/BB/2021

The National Company Law Tribunal, Bengaluru Bench, comprising of Justice (Retd) T. Krishnavalli (Judicial Member) and Shri Manoj Kumar Dubey (Technical Member), has reiterated that a Section 9 petition is not maintainable if the principal amount has been repaid during the pendency of the petition and only the interest component remains unpaid. The Tribunal relied on the NCLAT judgement of Rohit Motawat v. Madhu Sharma”, Comp. App.(AT) (Ins) No. 1152 of 2022 which ruled that a section 9 application regarding only the interest component is not maintainable as “the spirit of the legislation of the Code is for 'resolution of debt' and not for recovery”.