Omkara Assets Reconstruction Pvt. Ltd. Vs. Panda Technologies India Pvt. Ltd. – NCLT Indore Bench
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The NCLAT New Delhi held that:
(i) The date of refiling after curing the defects cannot be treated to be date of filing of the Appeal for purposes of computation of limitation and date of e-filing cannot be treated to be fresh date of filing of the Appeal.
(ii) All Authorised Representative in a class are bound by the voting by majority of votes as reflected by the voting by the AR. A lone Homebuyer cannot be allowed to question the voting by Authorised Representatives on behalf of majority of Financial Creditor in a class.
(iii) When a procedure for replacement of the Authorised Representatives have been introduced in the Regulations by 16A(3A) inserted on 18.09.2023, the said statutory provision has to be followed for replacement of Authorised Representatives.
The Hon’ble Himachal Pradesh High Court held that:
(i) The High Court of Himachal Pradesh technically falls within the definition of ‘Court’ under Section 2(1)(e) of the Act but the arbitrator was not appointed by the High Court in exercise of its original civil jurisdiction.
(ii) Appointing an arbitrator under Section 11(6) of the Act by the Court which exercises original civil jurisdiction may not even otherwise vest the Court with jurisdiction under Section 42 of the Act to entertain objections under Section 34 of the Act, if the Court does not have pecuniary jurisdiction to entertain the objections.
(iii) The High Court of Himachal Pradesh, which exercises original civil jurisdiction cannot be classified as ‘Court’ for the purpose of Section 42 of the Arbitration and Conciliation Act when it merely appointed arbitrators under Section 11(6) of the Act. Section 42 of the Act will not be attracted where High Court of Himachal Pradesh has only appointed the arbitrator and has not undertaken any other exercise.
The Hon’ble Punjab & Haryana High Court held that:
(i) Section 21 of Arbitration Act does not require the notice to be served by all the parties to the agreement. Notice by one of the parties to the agreement would be a sufficient compliance of the statutory provision. The giving of such a notice is purely procedural and not a decisive step.
(ii) The legal representative of a deceased-partner has a right to enforce an arbitration agreement.
(iii) On the dissolution of a partnership firm, the arbitration clause does not come to an end.
(iv) Pendency of a civil and criminal litigation inter se partners, cannot estop one of the partners from invoking the arbitration clause or bar the reference of dispute for adjudication to an arbitrator for determination
The Hon’ble NCLAT held that since the Corporate Debtor has already been dissolved, the present appeal, against the order passed by NCLT by which an IA filed by the Appellant under Section 60(5) r/w Section 73 of the IBC has been dismissed, has become infructuous.
The Hon’ble NCLAT held that in the present case, the Resolution Professional (RP) in his addendum report, found that the Personal Guarantor is not in a position to bear the expenses of the insolvency resolution and is not in a financial position to submit any repayment plan, therefore, the Tribunal has rightly rejected the application filed by the appellant on the report submitted by the RP under Section 99 of the Code.
The Hon’ble Madras High Court held that since admittedly the signature in the cheque differs from the specimen signature of the petitioner given to the bank, the questions as to whether the petitioner issued the cheque and whether it was issued for a legally enforceable debt can be determined with reference to other evidence on record and therefore there is no necessity to send it for comparison by an expert. It is needless to say that the learned Magistrate may consider the defence of the accused and the claim of the respondent after considering all the evidence on record.
The Hon’ble Madras High Court is not in agreement that when the adjudication of a criminal offence has reached to the state of revisional level, there cannot be any compromise without permission of the court in all case including the offence punishable under the Negotiable Instruments Act, 1881 or the offence mentioned under section 320 of Cr.P.C., can be compounded only if High Court or Court of Sessions grants permission for such purpose. The Court presently, concerned with an offence punishable under ‘N.I. Act’. It is evident that the permissibility of the compounding of an offence is linked to the perceived seriousness of the offence and the nature of the remedy provided.
The Hon’ble Bombay High Court held that:
(i) It is safe to accept that the basis of issuance of the SCN was primarily the findings in the Transaction Audit Report (TAR), which were observed by the NCLT to be mere assumptions. Considering the grave consequences that follow a finding by the Wilful Defaulter Committee (WDC), the degree of proof required and expected to have been relied upon by the WDC should be much higher and not simply based on a TAR which itself was unacceptable to the NCLT.
(ii) Even if the Petitioner is presumed to have access to documents in the proceedings before the NCLT, he is justified in seeking documents in the conduct of WDC proceedings.
(iii) Article 19(1)(g) of the Constitution of India is attracted as the moment a person is declared as wilful defaulter. A Fundamental right under Article 19 or 21 can be enforced even against persons other than State or its instrumentalities.
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