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An application for withdrawal as per CIRP Regulation 30A read with Section 12A of IBC is to be necessarily made by Applicant who initiated CIRP by filing petition under Sec. 7, Sec. 9 or Sec. 10 of IBC, 2016 – JoinUp Corporation Vs. Mr. R. Sugumaran IRP of Safire Machinery Company Pvt. Ltd. and Ors. – NCLAT Chennai

In this case, the applicant of the application under Section 9 of IBC, 2016 was not willing to sign Form ‘FA’ and that Form ‘FA’ has been signed by the Financial Creditor.

Hon’ble NCLAT held that:

(i) From the plain reading of Section 12A it is clear that withdrawal of CIRP has to satisfy twin requirements of an application by the applicant which then needs approval of CoC by atleast 90% voting share. The word applicant is defined in Regulation 2(1)(a) of IBBI (CIRP) Regulations, 2016 as the person(s) filing an application under sections 7, 9 or 10, as the case may be.
(ii) The application for withdrawal as per the Regulation 30A read with Section 12A has to be necessarily made by the applicant who has initiated CIRP by filing application under Section 7, Section 9 or Section 10 of IBC, 2016.
(iii) The impugned order has recorded as under, which is not factually correct, as Form ‘FA’ was not signed or submitted by the Operational Creditor.

An application for withdrawal as per CIRP Regulation 30A read with Section 12A of IBC is to be necessarily made by Applicant who initiated CIRP by filing petition under Sec. 7, Sec. 9 or Sec. 10 of IBC, 2016 – JoinUp Corporation Vs. Mr. R. Sugumaran IRP of Safire Machinery Company Pvt. Ltd. and Ors. – NCLAT Chennai Read Post »

Landmark judgment on burden of proof, effect of presumption, shifting of onus of proof to Complainant, Rebut the presumption and prove to the contrary, standard of ‘preponderance of probabilities’ etc. under Section 139 of Negotiable Instruments Act, 1881 (NI Act) – Rajesh Jain Vs. Ajay Singh – Supreme Court

Read here complete summary of the landmark judgment of Hon’ble Supreme Court under Section 139 of NI Act.

Landmark judgment on burden of proof, effect of presumption, shifting of onus of proof to Complainant, Rebut the presumption and prove to the contrary, standard of ‘preponderance of probabilities’ etc. under Section 139 of Negotiable Instruments Act, 1881 (NI Act) – Rajesh Jain Vs. Ajay Singh – Supreme Court Read Post »

Whether when an application is filed against a Personal Guarantor whether another Lender of same transaction can proceed against the Personal Guarantor by filing another application under Section 95 of IBC – Bhavesh Gandhi Vs. Central Bank of India – NCLAT New Delhi

NCLAT held that when an insolvency resolution process commences against the Personal Guarantor all creditors of the Personal Guarantor are taken care of in the proceedings under Chapter-III. The scheme of Code does not contemplate manifold applications against same Personal Guarantor by different lenders. Multiplicity of applications against same Personal Guarantor is not contemplated under Chapter III. When the insolvency resolution process commences against a Personal Guarantor, claims of all creditors are taken care of under the scheme of the Code. Further, it is held that creditors of the Personal Guarantors who are unable to file an application due to enforcement of moratorium under Section 96 can very well avail the benefit of period during which moratorium continues, hence, due to interim moratorium enforced by Section 96, the creditors like Central Bank of India and other creditors are in no manner prejudiced. If they have not filed any application during moratorium period, they have every right to file application and for computation of the period of limitation, period during which moratorium is in place is to be excluded.

Whether when an application is filed against a Personal Guarantor whether another Lender of same transaction can proceed against the Personal Guarantor by filing another application under Section 95 of IBC – Bhavesh Gandhi Vs. Central Bank of India – NCLAT New Delhi Read Post »

For the purpose of limitation, the relevant date is the date on which the right to sue accrues which is the date when a default occurs – Tech Sharp Engineers Pvt. Ltd. Vs. Sanghvi Movers Ltd. – Supreme Court

Hon’ble Supreme Court set aside NCLAT order and held that there cannot be any straitjacket formula for accepting or rejecting the explanation furnished by the Appellant/applicant for the delay in taking steps. When an appeal is filed against an order rejecting an application on the ground of limitation, the onus is on the Appellant to make out sufficient cause for the delay in filing the application. The date of enforcement of the IBC and/or the date on which an application could have first been filed under the IBC are not relevant in computation of limitation. The pendency of the proceedings in a parallel forum, invoked by the Respondent, is not sufficient cause for the delay in filing an application under Section 9 of the IBC. Proceedings in good faith in a forum which lacks jurisdiction or is unable to entertain for like nature may save limitation. The initiation of proceedings in Madras High Court would not save limitation for initiation of proceedings for initiation of CIRP in the NCLT under Section 7 of the IBC.

For the purpose of limitation, the relevant date is the date on which the right to sue accrues which is the date when a default occurs – Tech Sharp Engineers Pvt. Ltd. Vs. Sanghvi Movers Ltd. – Supreme Court Read Post »

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