Analyzing Section 14 of SARFAESI Act, 2002 and related myriad issues – By Adv. R. P. Agrawal, Adv. Manisha Agrawal and Adv. Harnaryan

Section 14 SARFAESI Act, 2002 is a potent weapon in the armoury of Banks and Financial Institutions. This provision is being invoked by the Secured lenders quite frequently and the Debt Recovery Tribunals are flooded with the Petitions filed under Section 17 of SARFAESI Act, 2002 which provides a remedy to the aggrieved person to challenge the validity of the measures taken by the Secured Creditors under Section 14 of the SARFAESI Act, 2002.

The NCLT, the NCLAT and their Contempt Proceedings – By Naman

The question of whether the NCLT and NCLAT have the power to initiate contempt proceedings is a complex one. While there are arguments in favour of conferring this power on the NCLAT, there is no clear precedent on this issue. Several benches of NCLT, on the other hand, have held that they do not have the powers to initiate contempt proceedings.

Decoding the Doctrine of Antecedent Debt : A Condition to Preference – Pathik Choudhury, Advocate

Section 43 of the Insolvency and Bankruptcy Code, 2016 (IBC) defines a transaction as a “preferential transaction” if the transaction is in relation to transfer of the property or interest of the Corporate Debtor for the benefit of a creditor, surety or guarantor “in relation to an antecedent debt” and if the transaction has the effect of putting such creditor, surety or guarantor in a beneficial position in the distribution of assets as prescribed under Section 53 of the IBC. Further, the transaction ought to have taken place two years prior to the insolvency commencement date in the case of a related party, or one year otherwise. However, the IBC does not specify when a “debt” should be treated as an “antecedent” debt.

Analysis of recent judgment of the Hon’ble Supreme Court in Indiabulls Asset Reconstructions vs Ram Kishor Arora, relating to project-wise insolvency of a real estate company – By Adv. Yashowardhan SNV Dixit

The Hon’ble Supreme Court of India, through its judgment dated 11.05.2023, in Indiabulls Asset Reconstruction Co. Ltd. Vs Ram Kishore Arora & Ors. (2023) 68 SC delivered by the division bench consisting of Mr. Justice Dinesh Maheshwari and Mr. Justice Sanjay Kumar, adjudicated upon a cluster of appeals filed by Union Bank of India and Indiabulls Asset Reconstruction Company Limited against an order dated June 10, 2022, passed by the Hon’ble NCLAT concerning ‘project-wise insolvency’ of the Corporate Debtor-Supertech Limited.

There is no ground available to reject an application u/s 7 of IBC except NCLT finds that the debt has not become due and payable, the decision in ‘Vidarbha Industries’ cannot be read and understood as taking a view which is contrary to the view taken in ‘Innoventive Industries’ and ‘E.S. Krishnamurthy’ – M. Suresh Kumar Reddy Vs. Canara Bank & Ors. – Supreme Court

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Status of Asset Reconstruction Companies(ARCs) under IBC – By Divyanshu Kumar

While the SARFAESI Act focuses on 'recovery' and is more of a 'class' remedy, the IBC focuses on 'resolution' and seeks to establish a procedure based on cooperation of the stakeholders. Since a similarity exists in the participants in both of these regulations, the possibility of overlap persists. In this article, we shall assess the various judicial and legislative developments that confirm the status that ARCs have under IBC.

Provisions of the Individual Bankruptcy under IBC 2016 – By CS Gaurav Joshi

Insolvency and Bankruptcy Process of an individual in India under IBC’ 2016 has gained momentum as Financial Institutions as well as the personal guarantors have started invoking provisions of Section 95 and 94 of the Code to trigger the process for resolving insolvency of personal guarantors. Some issues involving individual insolvency are being settled by way of judicial pronouncement either by Supreme Court, NCLAT or by NCLT, whereas most of the provisions are yet pass the test of judicial scrutiny.  The data issued by IBBI suggests that there are total 1612 no of application under Section 94 or 95 of the code filed by stakeholders involving an amount of Rs. 1.41 Lakh Crore. The data further suggests that till 31st December’ 2022, only 4 applications have been filed for initiating Bankruptcy Process of Individual. These numbers indicate that Individual Bankruptcy process is still at a very nascent stage. Therefore, a deeper and clear understanding among the stakeholders regarding provisions of Individual Bankruptcy is necessary so as to effectively use the provisions of Code.

Transaction entered by Corporate Debtor voluntary or due to pressure or threat has no relevance while coming to the conclusion whether the transaction is preferential or not, the intent of Corporate Debtor is not relevant since Section 43 of IBC envisages statutory/deeming fiction – GVR Consulting Services Pvt. Ltd. Vs. Pooja Bahry – NCLAT New Delhi

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