12. December

A right to judicial remedy, is a right envisaged under the Constitution, which cannot be deprived of, merely because of a minor procedural error or procedural technicalities – Mr. Tajinder Singh Bhathal Vs. MRF Ltd. and Ors. – NCLAT Chennai

/ 17 minutes of reading

In this case, on one hand, the company petition under Section 59 of the Companies Act, 2013 was dismissed on 10.08.2022 because of the reason of the pendency of the civil suit, which was undertaken by the Appellant to be withdrawn and for which the Appellant has already filed a withdrawal application and on the other hand, the civil suit is RCS/123/2020 got dismissed as withdrawn on 13.08.2022 an application of the Appellant. Thus, the Appellant has been deprived of pursuing any of the remedies because of the dismissal of the company petition by the impugned order of 10.08.2022 and because of the civil suit being dismissed on 13.08.2022 as withdrawn.

A right to judicial remedy, is a right envisaged under the Constitution, which cannot be deprived of, merely because of a minor procedural error or procedural technicalities – Mr. Tajinder Singh Bhathal Vs. MRF Ltd. and Ors. – NCLAT Chennai Read Post »

Initiation of reassessment proceedings under Sections 148A(b) and 148A(d) of the Income Tax Act, 1961 and issuance of the notice under Section 148 are in violation of the Section 14 of the IBC – McNally Bharat Engineering Co. Ltd. Vs. Union of India and Ors. – Calcutta High Court

/ 11 minutes of reading

The Hon’ble Calcutta High Court held that initiation of reassessment proceedings under Sections 148A(b) and 148A(d) of the Income Tax Act, 1961 and issuance of the notice under Section 148 are in violation of the Section 14 of the IBC. Furthermore, the resolution plan approved by the NCLT has overriding authority, as per Section 238 of the IBC and expressly precludes reassessment or revision proceedings for the period prior to the effective date stipulated in the plan. The respondents’ actions are in direct contravention of these provisions.

Initiation of reassessment proceedings under Sections 148A(b) and 148A(d) of the Income Tax Act, 1961 and issuance of the notice under Section 148 are in violation of the Section 14 of the IBC – McNally Bharat Engineering Co. Ltd. Vs. Union of India and Ors. – Calcutta High Court Read Post »

Is Resolution Professional to be considered a ‘Promoter’ for the purposes of the provisions of Section 43(5) of RERA? | Can an exemption be granted from making a pre-deposit u/s 43(5) of RERA in the case of a Corporate Debtor under insolvency? – Umang Realtech Pvt. Ltd. Vs. Mrs Daphne Reita Rajan Sharma and Anr. – Delhi High Court

/ 14 minutes of reading

In this case, the issues are:
(i) Is it required to make a pre-deposit under Section 43(5) of RERA even if the Promoter/Corporate Debtor is undergoing corporate insolvency?
(ii) Is Resolution Professional to be considered as a ‘Promoter’ for the purposes of the appeal and the application of provisions of Section 43(5) of the RERA?
(iii) Can security of flat be offered instead of pre-deposit requirement under Section 43(5) of RERA?

Is Resolution Professional to be considered a ‘Promoter’ for the purposes of the provisions of Section 43(5) of RERA? | Can an exemption be granted from making a pre-deposit u/s 43(5) of RERA in the case of a Corporate Debtor under insolvency? – Umang Realtech Pvt. Ltd. Vs. Mrs Daphne Reita Rajan Sharma and Anr. – Delhi High Court Read Post »

Can Section 60(5) of the IBC be invoked for filing contempt petitions? – Mr. Pankaj Dhanuka, Liquidator of Lanco Kondapalli Power Ltd. Vs. Lanco Kondapalli Power Ltd. and Anr. – NCLAT Chennai

/ 35 minutes of reading

In this case, the following issues are covered:
(i) Contempt proceeding provisions under the Companies Act, 2013.
(ii) Can Section 60(5) of the IBC be attracted for filing of contempt petitions?
(iii) No contempt proceedings would be tenable, as against the inanimate or juristic person.
(iv) Appeal under Section 19 of Contempt of Courts Act will not lie as against the order of rejection of the contempt petition.

Can Section 60(5) of the IBC be invoked for filing contempt petitions? – Mr. Pankaj Dhanuka, Liquidator of Lanco Kondapalli Power Ltd. Vs. Lanco Kondapalli Power Ltd. and Anr. – NCLAT Chennai Read Post »

The default which has occurred when the notices were issued for drawing the proceedings under the SARFAESI Act, reckoning of the period of limitation prescribed under Article 137 the Limitation Act, since has been given a retrospective effect for the purposes of the proceeding under Section 7 or 9 of the IBC – Canara Bank Vs. DAAJ Hotels and Resorts Pvt. Ltd. – NCLAT Chennai

/ 18 minutes of reading

The Hon’ble NCLAT held that commission of a default consciously means, that it is an expression of default when it is realized and accepted by the Financial Creditor and accepted by the Corporate Debtor when the notices under Section 13 (2) of the SARFAESI Act was issued and accepted by the Corporate Debtor. The aspect of default as defined under Section 13 (2) of the SARFAESI Act was to be reckoned from the date notice is issued. It does not mean a debt when held or any part or instalment of the amount becomes due to be payable, but not paid.

The default which has occurred when the notices were issued for drawing the proceedings under the SARFAESI Act, reckoning of the period of limitation prescribed under Article 137 the Limitation Act, since has been given a retrospective effect for the purposes of the proceeding under Section 7 or 9 of the IBC – Canara Bank Vs. DAAJ Hotels and Resorts Pvt. Ltd. – NCLAT Chennai Read Post »

Can settlement be allowed after the non-implementation of the approved Resolution Plan? – Dr. Yartagadda Krishna Mohan Vs. Committee of Creditors and Anr. – NCLAT Chennai

/ 7 minutes of reading

The Hon’ble NCLAT approved the view of the NCLT that Resolution Plan already having been approved cannot be faulted of in any manner whatsoever, as new chapter cannot be permitted to be opened, when the Appellant himself has failed on three earlier occasions to get his OTS proposals approved and because of the fact that the Resolution Plan as of now has already been approved.

Can settlement be allowed after the non-implementation of the approved Resolution Plan? – Dr. Yartagadda Krishna Mohan Vs. Committee of Creditors and Anr. – NCLAT Chennai Read Post »

Can Resolution Professional file a purshish to withdraw Section 12A application without the approval of CoC in the event that a Financial Creditor’s claim, which was filed prior to the Section 12A application, is accepted during the pendency of the application? – Mehul Patel (Member of Suspended Board of Anupam Port Cranes Corporation Ltd.) Vs. Nandish S. Vin and Anr. – NCLAT New Delhi

/ 23 minutes of reading

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Can Resolution Professional file a purshish to withdraw Section 12A application without the approval of CoC in the event that a Financial Creditor’s claim, which was filed prior to the Section 12A application, is accepted during the pendency of the application? – Mehul Patel (Member of Suspended Board of Anupam Port Cranes Corporation Ltd.) Vs. Nandish S. Vin and Anr. – NCLAT New Delhi Read Post »

Definition provisions of the Arbitration Act, being a the basic structure of Law of Arbitration, are not derogable – Suresh Shah Vs. Tata Consultancy Services Ltd. – Delhi High Court

/ 26 minutes of reading

The Hon’ble Delhi High Court held that:
(i) It is evident from the scheme of the Arbitration and Conciliation Act, 1996 that while party Autonomy is duly recognized but it also has a basic structure which is mandatory and does not permit any modification by mutual consent of the parties.
(ii) Section 2(1)(f) of the Act, being a definition provision and is not derogable.
(iii) The contention of delay of 7 years in raising a “new ground of challenge” to the Award emanating from ICA in Section 34 proceedings and the same being in contravention of the timeline prescribed by the Act, is not tenable.

Definition provisions of the Arbitration Act, being a the basic structure of Law of Arbitration, are not derogable – Suresh Shah Vs. Tata Consultancy Services Ltd. – Delhi High Court Read Post »

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