NCLAT-26

Computation of limitations has to be taken from the date of e-filing of the Appeal under Section 61 of IBC and not from the date of re-filing after curing the defects – Innovators Cleantech Pvt. Ltd. Vs. Pasari Multi Projects Pvt. Ltd. – NCLAT New Delhi

In this important judgment, Hon’ble NCLAT clarifies two issues:

1. Computation of limitations starts from the date of e-filing of the Appeal under Section 61 of IBC or from the date of re-filing after curing the defects?
2. Whether without applying a certified copy of the order, whether an Appeal can be filed under Section 61 of IBC or not?

Computation of limitations has to be taken from the date of e-filing of the Appeal under Section 61 of IBC and not from the date of re-filing after curing the defects – Innovators Cleantech Pvt. Ltd. Vs. Pasari Multi Projects Pvt. Ltd. – NCLAT New Delhi Read Post »

The law laid down in ‘Mr. Jitendra Virmani Vs. MRO-TEK Realty Ltd.’ and three Member Bench judgment in ‘Arul Muthu Kumaara Samy Vs. Registrar of Companies’ does not lay down a correct law – V.R. Ashok Rao & Ors. Vs. TDT Copper Ltd. – NCLAT New Delhi

(a) The law laid down by this Tribunal in “Mr. Jitendra Virmani Vs. MRO-TEK Realty Ltd. & Ors (2017) ibclaw.in 93 NCLAT” and three Member Bench Judgment in “Arul Muthu Kumaara Samy Vs. Registrar of Companies (2020) ibclaw.in 490 NCLAT” that when the defects in appeal are cured after seven days and the same is refiled, it shall be treated as a fresh Appeal, does not lay down a correct law. The re-presentation of appeal after expiry of a period of 7 days or after extended period shall not be a fresh filing and shall only be refiling/re-presentation.

(b) The limitation prescribed in filing an appeal under Section 61 of the Code or Section 421 of the Companies Act, 2013 shall not govern the period taken in an appeal for removal of the defects in refiling/re-presentation. Even if, there is a delay in refiling/re-presentation which is more than the period of limitation prescribed for filing an appeal under Section 61 of the Code and Section 421 of Companies Act, 2013, the same can be condoned on sufficient justification.

The law laid down in ‘Mr. Jitendra Virmani Vs. MRO-TEK Realty Ltd.’ and three Member Bench judgment in ‘Arul Muthu Kumaara Samy Vs. Registrar of Companies’ does not lay down a correct law – V.R. Ashok Rao & Ors. Vs. TDT Copper Ltd. – NCLAT New Delhi Read Post »

When Appeal is filed in defects and defects are not cured within 7 days and the defects are cured after 7 days and the Appeal is refiled, Whether the refiling shall be a fresh filing of the Appeal – Mr. V R Ashok Rao Vs. TDT Copper Ltd. – NCLAT New Delhi

NCLAT in this case referred the following issues to larger bench:
(a) Whether the law laid down by this Tribunal in “Mr. Jitendra Virmani Vs. MRO-TEK Realty Ltd. & Ors” and three Member Bench Judgement in “Arul Muthu Kumaara Samy Vs. Registrar of Companies” that when the defect in Appeal is cured and the Appeal is refiled before the Appellate Tribunal beyond seven days, the date of re-presentation of the Appeal shall be treated as a fresh Appeal, lays down correct law?
(b) Whether the limitation prescribed for filing an Appeal before this Appellate Tribunal under Section 61 of Insolvency and Bankruptcy Code, 2016 or Section 421 of the Companies Act, 2013 shall also govern the period under which a defect in the Appeal is to be cured and this Appellate Tribunal shall have no jurisdiction to condone the delay in refiling/representation if it is beyond the limitation prescribed in Section 61 of the IBC or Section 421 of the Companies Act, 2013.

When Appeal is filed in defects and defects are not cured within 7 days and the defects are cured after 7 days and the Appeal is refiled, Whether the refiling shall be a fresh filing of the Appeal – Mr. V R Ashok Rao Vs. TDT Copper Ltd. – NCLAT New Delhi Read Post »

Application is treated to be filed when it is filed in the Office of the Registry of NCLT at the filing counter and in case filed in electronic form, the filing is complete as soon as it is registered electronically – Krishan Kumar Basia Vs. State Bank of India – NCLAT New Delhi

The State Bank of India filed an Application under Section 95(1) on 01.10.2021, which Application came to be subsequently numbered on 18.02.2022. The Appellant Krishan Kumar Basia, the Guarantor of M/s. Gee Ispat Pvt. Ltd., Corporate Debtor also filed an Application under Section 94 on 25.10.2021, which was registered/numbered on 22.12.2021. The Application under Section 95 by State Bank of India was filed earlier in point of time, but the Application filed by Personal Guarantor was registered earlier in point of time. The Guarantor submitted that the petition under Section 94 filed by the Personal Guarantor is early in point of time and from which date the Moratorium under Section 96 shall kick in, prohibiting consideration of any Application by State Bank of India under Section 95.
NCLAT held that it is clear from the Rule 2(14) along with Rule 23 of NCLT Rules that Application is treated to be filed when it is filed in the Office of the Registry at the filing counter. Thus, filing on behalf of the Appellant/ Applicant is complete as soon as the Application is presented at the filing counter of the Office of the Registry. When as per Rule 10, sub-rule (2), when an electronic facility is available and an Application is filed in electronic form, the filing is complete as soon as it is registered electronically. Interim Moratorium has serious consequences, which consequences flow immediately after filing of the Application. Adjudicating Authority after due consideration has taken correct view of the matter in holding that filing of the Application under Section 95 by the State Bank of India is on a date when Application was filed and allotted number electronically and the submission of the Appellant that date of filing of the Application shall be the date when Application is numbered has rightly been rejected.

Application is treated to be filed when it is filed in the Office of the Registry of NCLT at the filing counter and in case filed in electronic form, the filing is complete as soon as it is registered electronically – Krishan Kumar Basia Vs. State Bank of India – NCLAT New Delhi Read Post »

NCLAT cannot utilise the inherent power recognised by Rule 11 of the NCLAT Rules, 2016 to allow a compromise before it by the parties after admission of the matter- Lokhandwala Kataria Construction (P) Ltd. (Corporate Debtor) Vs. Nisus Finance & Investment Manager LLP- Supreme Court

In view of Rule 8 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, the National Company Law Appellate Tribunal (NCLAT) could not utilise the inherent power recognised by Rule 11 of the National Company Law Appellate Tribunal Rules, 2016.
The Supreme Court in this case ruled that a settlement can be considered and a case can be
withdrawn even after insolvency proceedings have started against a company on the merit of the case.

NCLAT cannot utilise the inherent power recognised by Rule 11 of the NCLAT Rules, 2016 to allow a compromise before it by the parties after admission of the matter- Lokhandwala Kataria Construction (P) Ltd. (Corporate Debtor) Vs. Nisus Finance & Investment Manager LLP- Supreme Court Read Post »

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