IBC-Case Laws-NCLT

By virtue of Section 29A in the Code, persons who have contributed to the defaults of the corporate debtor or are undesirable due to incapacities as specified in the section, are prevented from gaining control of the Corporate Debtor – Mr. Ritesh Prakash Adaitya, RP – NCLT Mumbai Bench

By virtue of Section 29A in the Code, persons who have contributed to the defaults of the corporate debtor or are undesirable due to incapacities as specified in the section, are prevented from gaining control of the Corporate Debtor. As the Resolution Applicants being the ex-directors/promoters of the Corporate Debtor have been rendered ineligible under sub clause (g) of Section 29A to submit a Resolution Plan under the Code in the light of the finding recorded in IA No. 2359 of 2022, the resolution plan submitted by such directors/promoters, is liable to be rejected. Accordingly, IA 2279 of 2022 praying for approval of the Resolution Plan is rejected.

By virtue of Section 29A in the Code, persons who have contributed to the defaults of the corporate debtor or are undesirable due to incapacities as specified in the section, are prevented from gaining control of the Corporate Debtor – Mr. Ritesh Prakash Adaitya, RP – NCLT Mumbai Bench Read Post »

Whether the assignment under Section 5 of SARFAESI Act, 2002 excludes assignment of liability | Whether enforceability of an assignment depends on adequacy of stamp duty – CFM Asset Reconstruction Pvt. Ltd. – NCLT Kolkata Bench

Hon’ble NCLT Kolkata Bench held that:

(i) Validity of an assignment on the basis of adequacy or inadequacy of the stamp duty etc., cannot be gone into in a summary proceeding as the present one.
(ii) SARFAESI Act, 2002 does not specifically contemplate the assignment of a liability to an assignee. It is explicit that the statute permits only the assets to be assigned and not the liability, and the statute book does not provide for the assignment of liability or obligation.
(iii) Section 5(3) of the SARFEASI Act, 2002 and Section 5(4) of the Act, 2002 and held that the liabilities of the Assignor in regard to the very same assets in question would remain protected to such extent, as envisaged under the provisions Sections 5(3) and 5(4) of the SARFAESI Act, 2002, as it appears that the provisions will squarely apply to the present case.

Whether the assignment under Section 5 of SARFAESI Act, 2002 excludes assignment of liability | Whether enforceability of an assignment depends on adequacy of stamp duty – CFM Asset Reconstruction Pvt. Ltd. – NCLT Kolkata Bench Read Post »

Can claim of Homebuyer paid in cash to Promotors of Real Estate Company be admitted even no records found in the books of Corporate Debtor about the cash portion paid by Allottee – K. Amutha Vs. RP of Ambojini Property Developers Pvt. Ltd. – NCLT Chennai Bench

The Applicant paid Rs.2,50,000/- through cheque and remaining Rs.17,50,000/- in cash as booking advance. The applicant had submitted claim with the IRP for a sum of Rs.35,20,000/-, however, RP admitted only to the extent of Rs.3,77,178/- and RP stated that there is no entry in the books of the Corporate Debtor that it has received cash payment from the Applicant for the purchase of residential units from the Project.

Can claim of Homebuyer paid in cash to Promotors of Real Estate Company be admitted even no records found in the books of Corporate Debtor about the cash portion paid by Allottee – K. Amutha Vs. RP of Ambojini Property Developers Pvt. Ltd. – NCLT Chennai Bench Read Post »

Operational Debt as defined under Section 5(21) of the IBC, 2016 does not include Penalty or Liquidated Damages – Sucden India Pvt. Ltd. Vs. Matoshri Laxmi Sugar Co-Generation Industries Ltd. – NCLT Mumbai Bench

In this important ruling, Hon’ble NCLT Mumbai Bench held that:

(i) Operational debt under the Code does not include penalty or liquidated damages.
(ii) A claim for penalty does not become an operational debt until the liability is adjudicated upon by a civil court and the damages are assessed and crystallised.
(iii) Claim for liquidated damages for breach of contract cannot trigger insolvency process unless adjudicated by a competent court. Liquidated damages, even if stipulated, can only be crystallised on legal adjudication.
(iv) Adjudicating Authority is not the appropriate forum to decide on the questions of reasonableness and quantum of liquidated damages. Proceedings under Section 9 of the Code are not meant for ascertaining or crystallising the quantum of damages.
(v) Mere balance confirmation by the Corporate Debtor will not convert the amount of claim to an ‘operational debt’, because the Operational Creditor will have to independently discharge the onus of proving with credible materials that the claim is in respect of provision of goods or services so as to qualify as ‘operational debt’ within the meaning of Section 5(21) of the Code and that there has been a default in payment thereof.

Operational Debt as defined under Section 5(21) of the IBC, 2016 does not include Penalty or Liquidated Damages – Sucden India Pvt. Ltd. Vs. Matoshri Laxmi Sugar Co-Generation Industries Ltd. – NCLT Mumbai Bench Read Post »

Whether Winding Up petition can be presented by a Partner without LLP’s support and need not accompany it with statement of affairs and 3/4th resolution? – Hiran Valiyakkil Lal and Ors. Vs. K V Sreeja and Ors. – NCLT Kochi Bench

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Whether Winding Up petition can be presented by a Partner without LLP’s support and need not accompany it with statement of affairs and 3/4th resolution? – Hiran Valiyakkil Lal and Ors. Vs. K V Sreeja and Ors. – NCLT Kochi Bench Read Post »

If Demand Notice in Form-3 is accompanied by the document (lease deed) showing existence of transaction and rent payable then there is no requirement to also annex the invoice(s) with the demand notice – Prime Tower A Partnership Firm Vs. G. V. Meditech Pvt. Ltd. – NCLT Principal Bench

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If Demand Notice in Form-3 is accompanied by the document (lease deed) showing existence of transaction and rent payable then there is no requirement to also annex the invoice(s) with the demand notice – Prime Tower A Partnership Firm Vs. G. V. Meditech Pvt. Ltd. – NCLT Principal Bench Read Post »

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