2025

Builder is not entitled to levy holding charges | Even if allottee takes possession of the unit and is granted a possession certificate by the promoter, it would still not take away his right to claim Delayed Possession Charges (DPC) till a valid offer of possession (proceeded by an occupation certificate) is made to him – Manjeet Singh Rana Vs. Taneja Developers Infrastructure Ltd. – Haryana REAT

/ 3 minutes of reading

Hon’ble Haryana REAT held that:
(i) Even if allottee takes possession of the unit and is granted a possession certificate by the promoter, it would still not take away his right to claim DPC till a valid offer of possession (proceeded by an occupation certificate) is made to him. It is, thus, directed that the allottee would be entitled to DPC from due date of possession i.e. 25.07.2016 till a valid offer of possession is made to him.
(ii) As regards the Holding Charges, the issue is no longer resintegra in view of the judgment of Hon’ble Supreme Court in DLF Home Developers Ltd., (2020) ibclaw.in 153 SC, wherein it was held that the builder is not entitled to levy holding charges.

Builder is not entitled to levy holding charges | Even if allottee takes possession of the unit and is granted a possession certificate by the promoter, it would still not take away his right to claim Delayed Possession Charges (DPC) till a valid offer of possession (proceeded by an occupation certificate) is made to him – Manjeet Singh Rana Vs. Taneja Developers Infrastructure Ltd. – Haryana REAT Read Post »

Whether the provisions under Sec. 13 (3A) of SARFAESI Act, 2002 to send a reply to the objections raised by Borrower within a week is directory or mandatory? – Bank of Baroda Vs. E-star Infotech Ltd. and Anr. – DRAT Mumbai

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The Hon’ble DRAT Mumbai held that the scheme of the SARFAESI Act makes it amply clear that the creditor is required to consider such representation of the borrower within the stipulated time before proceeding to resort to any measures under Section 13(4) of the SARFAESI Act. Since there is a blatant violation of the provisions, the SARFAESI action has to fail going by the maxim sublato fundamento cadit opus which translates to “remove the foundation and structure falls”.

Whether the provisions under Sec. 13 (3A) of SARFAESI Act, 2002 to send a reply to the objections raised by Borrower within a week is directory or mandatory? – Bank of Baroda Vs. E-star Infotech Ltd. and Anr. – DRAT Mumbai Read Post »

In absence of an “initiated” or “pending” or “concluded” CIRP against a Principal Borrower, an application under Section 95(1) of IBC against a Personal Guarantor will not be maintainable before the NCLT, recovery proceedings will lie only before the DRT – State Bank of India Vs. Nikunj Bothra – NCLT Kolkata Bench

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The Hon’ble NCLT Kolkata Bench held that:

(i) In terms of Section 60 (1) and (2) read with Section 179 of the I&B Code, NCLT is the only Adjudicating Authority in respect of Personal Guarantors to a Corporate Debtor where a corporate insolvency resolution process or liquidation proceeding initiated against a corporate debtor is either pending before a National Company Law Tribunal or is already concluded.
(ii) In absence of an “initiated” or “pending” or “concluded” CIRP against a Principal Borrower, an application under Section 95(1) to initiate Insolvency Resolution Process against a Personal Guarantor to a Corporate Debtor will not be maintainable before the NCLT. The Recovery Proceedings will lie only before the Debt Recovery Tribunal (DRT) having territorial jurisdiction.

In absence of an “initiated” or “pending” or “concluded” CIRP against a Principal Borrower, an application under Section 95(1) of IBC against a Personal Guarantor will not be maintainable before the NCLT, recovery proceedings will lie only before the DRT – State Bank of India Vs. Nikunj Bothra – NCLT Kolkata Bench Read Post »

High Court directs Collector/ District Magistrate to conclude the proceeding under Section 14 of the SARFAESI Act, 2002 within 30 days from the next date fixed – Tata Capital Housing Finance Ltd. Vs. State of Chhattisgarh and Ors. – Chhattisgarh High Court

/ 6 minutes of reading

The procedure under Section 14 of the SARFAESI Act, 2002 was commenced in the month of January, 2023. However, despite the fact that from January, 2023 though several months period has elapsed, the proceeding under Section 14 of the SARFAESI Act has not been concluded by Collector/ District Magistrate.

High Court directs Collector/ District Magistrate to conclude the proceeding under Section 14 of the SARFAESI Act, 2002 within 30 days from the next date fixed – Tata Capital Housing Finance Ltd. Vs. State of Chhattisgarh and Ors. – Chhattisgarh High Court Read Post »

Tribunal directs CoC to take necessary action in regard to reimbursing all the fees due including the CIRP costs and Professionals’ fees incurred by the Resolution Professional – Ajay Kumar Agarwal Vs. Radico Khaitan Ltd. and Ors. – NCLT Kolkata Bench

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The Hon’ble NCLT Kolkata Bench held that it is obvious that an Insolvency Professional who is engaged to perform his/her duty as a Resolution Professional is entitled to be remunerated by way of paying fees for his labour and work and accordingly the fees and expenses are to be approved by the COC.

Tribunal directs CoC to take necessary action in regard to reimbursing all the fees due including the CIRP costs and Professionals’ fees incurred by the Resolution Professional – Ajay Kumar Agarwal Vs. Radico Khaitan Ltd. and Ors. – NCLT Kolkata Bench Read Post »

There can be a position regarding the prosecution of avoidance application even after the resolution or closure of liquidation process – Sherisha Technologies Pvt. Ltd. Vs. Shri. S A Prem Kumar and Anr. – NCLT Chennai Bench

/ 4 minutes of reading

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There can be a position regarding the prosecution of avoidance application even after the resolution or closure of liquidation process – Sherisha Technologies Pvt. Ltd. Vs. Shri. S A Prem Kumar and Anr. – NCLT Chennai Bench Read Post »

Can the District Magistrate issue a notice to the Borrower for disposing of an application u/s 14 of SARFAESI Act, 2002, filed by a Bank – ICICI Home Finance Company Ltd. Vs. State of Chhattisgarh and Ors. – Chhattisgarh High Court

/ 6 minutes of reading

In this case, the Bank an application under Section 14 of the SARFAESI Act, 2002 before District Magistrate. District Magistrate issued a notice to borrower. The Bank filed writ petition seeking a direction towards the District Magistrate to withdraw the decision of issuing the notice to the borrower and to proceed in accordance with Section 14 of the SARFAESI Act, 2002, assisting in providing rightful possession of the mortgaged property to the petitioner bank within the stipulated period of 30 days as prescribed under the Act of 2002.

Can the District Magistrate issue a notice to the Borrower for disposing of an application u/s 14 of SARFAESI Act, 2002, filed by a Bank – ICICI Home Finance Company Ltd. Vs. State of Chhattisgarh and Ors. – Chhattisgarh High Court Read Post »

If no funds are available, the question of keeping Provident Fund, Gratuity Fund and Pension Fund outside the purview of the liquidation assets does not arise – Employees Provident Fund Organisation Vs. Incab Industries Ltd. and Anr. – NCLT Kolkata Bench

/ 4 minutes of reading

The Hon’ble NCLT Kolkata Bench directs the RP that:

a) Resolution plan should provide for full payment of PF and Gratuity from funds, if any available, earmarked separately, regardless of delay in filing claim.
b) If funds are not available, claims made within the stipulated period as per public announcement or any subsequent extended period, if granted by this Adjudicating Authority, whichever is later, to be paid in full. In this case, the Hon’ble Tribunal has condoned the delay in view of the reason indicated in para 23 of this order.
c) If claims contain damages imposed under Section 14(b) of EPF Act, after the initiation of CIRP the same need not be paid.
d) If the claims contain damages imposed prior to the initiation of CIRP of the corporate debtor, the same may be waived off by the Central Board under Section 32(b) of the EPF Scheme, 1952 if applied for.

If no funds are available, the question of keeping Provident Fund, Gratuity Fund and Pension Fund outside the purview of the liquidation assets does not arise – Employees Provident Fund Organisation Vs. Incab Industries Ltd. and Anr. – NCLT Kolkata Bench Read Post »

Compliance and prior action in terms of MSME Act is not prerequisite or mandatory before any petition under Section 7 of the IBC could be entertained – Axis Bank Ltd. Vs. Midas Petrochem Pvt. Ltd. – NCLT Mumbai Bench

/ 1 minute of reading

Hon’ble Adjudicating Authority holds that Compliance and prior action in terms of MSME Act is not prerequisite or mandatory before any petition under Section 7 of the Code could be entertained. IBC aims at resolution of the Corporate Debtor and for attaining the same various provisions and regulations are enshrined in the Code. Under Section 7 Petition, the Tribunal has to merely see whether there is a debt and default in the matter before it.

Compliance and prior action in terms of MSME Act is not prerequisite or mandatory before any petition under Section 7 of the IBC could be entertained – Axis Bank Ltd. Vs. Midas Petrochem Pvt. Ltd. – NCLT Mumbai Bench Read Post »

Belated Resolution Plan, after CoC has approved a Resolution Plan, and when NCLT has reserved an IA for an appropriate decision, and all confidential information has been revealed before the open forum, cannot be allowed on the grounds of value maximization – Plazma Vinimay Pvt. Ltd. Vs. Pankaj Kumar Tibrewal – NCLT Kolkata Bench

/ 4 minutes of reading

In this case, a resolution plan of Rs. 500 crore submitted by Vedanta was approved by the CoC on 23.06.2022, by 99.38% majority and application for final sanction of the plan has been preferred on 03.07.2022, which is pending for consideration and the applicant has shown his intend to file its plan only on 02.08.2024. The applicant is interested and intending to file an offer through his resolution plan amounting to Rs. 850 Crore.

Belated Resolution Plan, after CoC has approved a Resolution Plan, and when NCLT has reserved an IA for an appropriate decision, and all confidential information has been revealed before the open forum, cannot be allowed on the grounds of value maximization – Plazma Vinimay Pvt. Ltd. Vs. Pankaj Kumar Tibrewal – NCLT Kolkata Bench Read Post »

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