NCLT

The IBC shall override Public Premises (Eviction of unauthorized occupants) Act, 1971 – Board of Trustees for Shyama Prasad Mookherjee Port, Kolkata Vs. Brighter Side Renewable Energy Ventures Pvt. Ltd. – NCLT Kolkata Bench

The Hon’ble NCLT Kolkata Bench held that:

(i) In terms of the provision ingrained in Section 238 of the I&B Code, the Code shall override all other statutory provisions that may tend to an affect or impede a corporate insolvency resolution process initiated under the I&B Code including the Public Premises (Eviction of unauthorized occupants) Act, 1971 (PP Act) and the Resolution Plan being already approved with waivers and concessions, granted under the I&B Code, the occupational charges that was allowed to be levied on an interim measure, until a decision is taken by the Estate Officer under the PP Act, cannot be allowed to be levied any further after approval of the Resolution Plan.
(ii) If a creditor failed to lodge its claim with the RP during the CIRP, once a resolution plan approved by CoC by requisite voting shares and subsequently by the Adjudicating Authority, all the past dues due stand waived, and the claim gets extinguished. The claims, that are not part of the resolution plan, shall stand extinguished and the proceedings related thereto shall stand terminated.

The IBC shall override Public Premises (Eviction of unauthorized occupants) Act, 1971 – Board of Trustees for Shyama Prasad Mookherjee Port, Kolkata Vs. Brighter Side Renewable Energy Ventures Pvt. Ltd. – NCLT Kolkata Bench Read Post »

Can the residual assets of the Corporate Debtor be sold on a going concern basis under Regulation 32A of the Liquidation Process Regulations, 2016? – Mr. Ravindra Chaturvedi, Liquidator of Excel Glasses Ltd. – NCLT Kochi Bench

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Can the residual assets of the Corporate Debtor be sold on a going concern basis under Regulation 32A of the Liquidation Process Regulations, 2016? – Mr. Ravindra Chaturvedi, Liquidator of Excel Glasses Ltd. – NCLT Kochi Bench Read Post »

The Tribunal does not have power to direct appointment of someone as a director of a company as it is the prerogative of the shareholders in their annual general meeting – Subrata Ghosh Vs. Mitra & Ghosh Publishers Ltd. and Ors. – NCLT Kolkata Bench

The petitioner has been contending that he may be appointed as a director of the company being 35% (approx..) shareholder of the company, however, the board of directors of the company have chosen not to induct him in the board. It is also a fact that the petitioner has crossed the age of 70 and consequently, his appointment is governed by Section 196(3) of the Companies Act, 2013 as he is seeking full-time employment with company as a director.
Hon’ble NCLT Kolkata Bench held that the petitioner will not be able to muster the strength requiring for passing of special resolution as he is holding only 35% (approx..) shares in the company. This Tribunal does not have power to direct appointment of someone as a director of a company as it is the prerogative of the shareholders in their annual general meeting.

The Tribunal does not have power to direct appointment of someone as a director of a company as it is the prerogative of the shareholders in their annual general meeting – Subrata Ghosh Vs. Mitra & Ghosh Publishers Ltd. and Ors. – NCLT Kolkata Bench Read Post »

If a Personal Guarantor filed application under Section 94 of IBC prior to any application being filed under Section 95 by Financial Creditor, the Personal Guarantor cannot be granted the benefit of an interim moratorium under Section 96 of the Code – Punjab National Bank and Anr. Vs. Mohita Indrayan – NCLT Chandigarh Bench

Hon’ble NCLT Chandigarh Bench, considering the facts of the case, held that:
(i) If an application is filed under Section 94 by the Personal Guarantor himself, prior to any application being filed under Section 95 of the Code by the Financial Creditor and it appears to the Adjudicating Authority that the Section 94 Application is mere a shield to avoid or dodge the insolvency process which has been initiated by the Financial Creditors, the Personal Guarantor cannot be granted the benefit of an interim moratorium under Section 96 of the Code in the interest of justice.
(ii) The moratorium u/s 96 claimed by Personal Guarantor against the initiation of insolvency resolution on account of the filing of petition u/s 95 by banks would not come to his rescue, when he herself has admitted to be in default as per petition filed by her u/s 94 of the Code.

If a Personal Guarantor filed application under Section 94 of IBC prior to any application being filed under Section 95 by Financial Creditor, the Personal Guarantor cannot be granted the benefit of an interim moratorium under Section 96 of the Code – Punjab National Bank and Anr. Vs. Mohita Indrayan – NCLT Chandigarh Bench Read Post »

Resolution Professional cannot exclude existing homebuyers/ past developers \ related/connected persons in EOI from submission of Rplan | RP/CoC can lay down additional criterion in Form G only having regard to the complexity and scale of operations of the business of the Corporate Debtor, as per Section 25(2)(h) of IBC – Mr. Dinesh Chaplot and Anr. Vs. Mr. Dinesh Kumar Deora, RP of Snehanjali and S.B. Developers Pvt. Ltd. – NCLT Mumbai Bench

Hon’ble NCLT Mumbai Bench held that:

(i) As per Section 25(2)(h) of the IBC, the duty of the RP to lay down the criteria for inviting prospective resolution applicants (PRAs) must be with the approval of the CoC and is not independent.
(ii) The duty of both RP and CoC is to lay down such criterion as is formulated only having regard to the complexity and scale of operations of the business of the CD and other conditions specified by the IBBI.
(iii) From a conjoint reading of Section 25(2)(h) and Regulation 36A (1), it can be presumed that the RP is not authorised to adjudicate as to the qualification or disqualification of PRAs.
(iv) An insolvency professional is duty bound to abide by all the laws at all times during the resolution process. An RP is the only person who would ensure compliance of all the laws in the processes under the IBC.
(v) Neither the CoC nor the RP has any inherent right to negate a statutory provision available to a person to submit EOI, if such a person is otherwise not ineligible within the meaning of Section 29A of the IBC.

Resolution Professional cannot exclude existing homebuyers/ past developers \ related/connected persons in EOI from submission of Rplan | RP/CoC can lay down additional criterion in Form G only having regard to the complexity and scale of operations of the business of the Corporate Debtor, as per Section 25(2)(h) of IBC – Mr. Dinesh Chaplot and Anr. Vs. Mr. Dinesh Kumar Deora, RP of Snehanjali and S.B. Developers Pvt. Ltd. – NCLT Mumbai Bench Read Post »

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