A resolution can be taken even during the CIRP, if any Promoter as investor agrees to invest the money for keeping the corporate debtor as a going concern and complete the real estate project within the time frame-Rajesh Goyal Vs. Babita Gupta & Ors. – NCLAT

NCLAT held that the procedure as followed in “Flat Buyers Association Winter Hills - 77, Gurgaon’ shows curtailment of period of resolution without asking for resolution plan from the third party before finalisation of the  resolution plan. The resolution can be taken even during the corporate insolvency resolution process, if any Promoter as investor agrees to invest the money for keeping the company as a going concern and complete the project within the time frame. In view of the fact that part of the infrastructure (Apartments/Flats) has already been completed, the allottees (Financial Creditors) were the main beneficiaries of the infrastructure have already reached settlement with the Promoter and the fact that the Promoter as an outsider financial creditor has agreed to invest the amount, not from the account of the Corporate Debtor but from other sources to keep the infrastructure as a going concern.

The period of lockdown COVID19 shall be excluded for the purpose of counting of the period for Resolution Process under Section 12 of the IBC, in all cases where CIRP has been initiated & pending before any Bench of the NCLT or in Appeal before NCLAT-Suo Moto Order dated 30.03.2020

The period of lockdown COVID19 shall be excluded for the purpose of counting of the period for Resolution Process under Section 12 of the IBC, in all cases where CIRP has been initiated & pending before any Bench of the…

Liquidator have power to replace or remove the Nominee Directors of the Corporate Debtor on the board of other Companies-Rajive Kaul Vs. Vinod Kumar Kothari & ors – NCLAT

NCLAT held that it is an axiomatic principle in Law that a Company in liquidation acts through the ‘Liquidator’ and the ‘Liquidator’ steps into the shoes in the Board of the Directors of the Company under Liquidation for the purpose of discharging is statutory duties. In reality, the property of the Company forming part of Liquidation still remain vested in the Company. Further it is held that the Liquidator is armed with requisite powers to remove the ‘Nominee Directors’ (Rajive Kaul & Pallavi Priyadarshini Kaul) and is entitled to nominate the ‘Directors’ and the Appellant ‘Nicco Park and Resorts Pvt. Ltd.’ is enjoined to act upon the replacement proposal of the ‘Existing Nominee Directors’ of ‘Corporate Debtor’.

A Financial Creditor can file application under section 7 of the Code against a Company who is guarantor to a individual/Sole Proprietorship firm-Laxmi Pat Surana Vs. Union Bank of India – NCLAT

NCLAT held that by virtue of Deed of Guarantee Corporate Debtor being a Corporate Person owes debt to the Bank. In the present case the Corporate Debtor is the Guarantor and in the year 2008, undertook to repay the debt in case of default by the Principal Borrower. As per Section 3(8) of the Code Corporate Debtor means a Corporate Person who owes debt of any person.

Withdrawal of money by Director during CIRP can be treated as criminal misappropriation and criminal breach of trust -Manoj K. Daga Vs. ISGEC Heavy Engineering Limited – NCLAT

NCLAT held that considering  record  which  shows  that  Appellant violated Orders of Adjudicating Authority and this Tribunal and looking to the apparent default on record where undertakings were given and not honoured, we find that the Appeal deserves to be dismissed in default. We dismiss the Appeal in default while permitting the IRP to move the Adjudicating Authority or any other authorities including Police authorities to pursue the matter with regard to money illegally withdrawn from the accounts of the Corporate Debtor so as to trace the money and get it back in the Company accounts. Prima facie, it appears to us that the illegal withdrawals can, inter alia, be treated as criminal misappropriation and criminal breach of trust.

Reverse CIRP apply even if the Corporate Debtor is in the business of selling the flats/ apartments/ shops to allottee(s)-Pradip Kumar Chaudhuri Vs. M/s Dagcon (India) Pvt. Ltd. – NCLAT

NCLAT held that if the Corporate Debtor is in the business of selling the flats/ apartments/ shops to allottee(s). It is for the Resolution Professional to find out as to who is the allottee in whose favour the Promoter Dagcon (India) Pvt. Ltd. has reached settlement/ Agreement or issued receipts of payments for such allotment and any other documents in support of such claim as may be produced. On receiving of such receipts, if it is found that the flats/ apartments/ shops etc. are to be completed or is completed and ready to be handed over, the ‘Resolution Professional’ is bound to proceed in accordance with law and the guidelines issued in “Flat Buyers Association Winter Hills-77” uninfluenced by the terms of agreement part of the said judgment.

Gourav Kishor Shinde Vs. Uday Yashwant Nayak – NCLAT

I. Case Reference Case Citation : 187(IBC)152/2020 Case Name : Gourav Kishor Shinde Vs. Uday Yashwant Nayak Company Appeal : Company Appeal (AT) (Insolvency) No. 1107 of 2019 Company Appeal Ref. : Arising out of Order dated 10.10.2019 passed by…

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