Risbah Chand Lodha Erstwhile RP of Baldava Textiles Pvt. Ltd. Vs. Shri Anant Syntex Ltd. – NCLAT New Delhi
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Grover Leasing Ltd. Vs. Rank Suspension Pvt. Ltd. – Delhi High Court Read Post »
In this case, an application is filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 by Wilmington Trust SP Services (Dublin) Ltd. (Operational Creditor) for initiation of CIRP against SpiceJet Ltd. (Corporate Debtor). In the present case, Section 9 Petition has been filed on the basis of alleged default of payment due as per Aircraft Lease Agreement signed by the Willington Trust SP Services (Dublin Limited) as a Trustee and not in its individual capacity.
Hon’ble NCLT New Delhi Bench holds that:
(i) In the instant case, neither the operational debt is owed to the instant applicant, nor it has been legally assigned or transferred to the instant applicant. Therefore, it is undisputedly concluded that the Applicant is not a ‘Operational Creditor’ in the instant case.
(ii) It appears that for the sake of convenience in dealing with day to day business operations with various authorities in India, on behalf of BOC Aviation, the DGCA has mentioned them as Lessor/Owner without clarifying that they are trustees.
(iii) Since the proceedings under the IBC are summary in nature, this Adjudicating Authority is not inclined to adjudicate upon the genuineness of the document. However, it is evident that the Amendment Agreement produced by the Operational Creditor is not signed by both the parties and the Amendment Agreement produced by the Corporate Debtor during the course of argument is signed by both the parties.
Hon’ble Supreme Court held that:
(i) The court however underlined that in the next category where the person became ineligible to be appointed as arbitrator, there was no need for a challenge to be laid before the arbitrator. In such circumstances outlined in Section 12(5), the party aggrieved could directly approach the court under Section 14(1)(a).
(ii) The grounds of ineligibility which would apply at the appointment stage, would also continue during the proceedings by virtue of Section 12(2). In other words, if during the continuance of the proceedings, the arbitrator becomes subject to any eligibility condition outlying in the Fifth Schedule, the application for his removal on the grounds of justifiable doubts about his impartiality and independence, can be made.
(iii) Parliament’s conscious effort in amending the Act, because of the inclusion of the fifth schedule, as a disclosure requirement, as an eligibility condition [Section 12 (1)] and a continuing eligibility condition, for functioning [Section 12 (2)] and later, through Section 12 (5), the absolute ineligibility conditions that render the appointment, and participation illegal, going to the root of the jurisdiction, divesting the authority of the tribunal, thus terminating the mandate of the arbitrator, as a consequence of the existence of any condition enumerated in the seventh schedule, are to clear the air of any ambiguities. The only manner of escaping the wrath, so to say of Section 12 (5) is the waiver- in writing by the party likely to be aggrieved.
Chennai Metro Rail Ltd. Vs. Transtonnelstroy Afcons (JV) & Anr. – Supreme Court Read Post »
The Adjudicating Authority held that as to the second issue, it is pertinent to mention that Mr. Satish Gupta is the Director of the Corporate Debtor company and the Settlement has been made by Mr. Satish Gupta while discharging his duties towards the corporate debtor and in the course of the business between the parties. Therefore, it is observed that the alleged unpaid share of 34.67% failed to be fulfilled. Hence it is to be considered as an unpaid amount as per the settlement agreement. It is relevant to mention that the Hon’ble National Company Law Tribunal (NCLT), Allahabad Bench, vide its decision in Delhi Control Device (P) Ltd. vs. Fedders Electric and Engineering Ltd. (2019) ibclaw.in 451 NCLT has made clear its stand regarding the claiming of debt due on account of settlement agreement between the parties.
NCLAT held that it is commonsensical axiom that the time taken by a Resolution Professional to determine an avoidance transaction is dependent on a multitude of factors, including availability of information, co-operation from the erstwhile directors of the Corporate Debtor, cooperation from parties to the avoidance transactions, analysis by the transaction auditor, etc. Such factors often being outside the control of the Resolution Professional, there is therefore a distinct possibility of delay in making a determination, beyond the timelines specified in the CIRP Regulations.
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M/s. Transtonnelstroy – Afcons (JV) Vs. M/s. Chennai Metro Rail Ltd. – Madras High Court Read Post »
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Gujarat Urja Vikas Nigam Ltd. Vs. Yes Bank Ltd. & Anr. – Supreme Court Read Post »
The Divisional Bench of Telangana High Court has considered following questions in this petition:
(i) Whether the notice issued by the SBI under Section 13(2) of the SARFAESI Act is legal and valid? Corollary to the above is the question as to whether the High Court should interfere in such a notice under Article 226 of the Constitution of India?
(ii) Whether the petitioner is entitled to the benefit of the OTS scheme under SBIOTS 2019 and whether the High Court under Article 226 of the Constitution of India can issue a direction to the respondent/SBI to accept the OTS proposal of the petitioner?
(iii) Whether respondent/SBI would be precluded from taking steps under the 1993 Act after having invoked provisions of the SARFAESI Act?
(iv) Is there any suppression of material facts by the petitioner? And if so, whether the same would disentitle the petitioner to any relief from the Writ Court?
The Operational Creditor (Appellant) had filed the Ledger Statement maintained in its Books and it showed that a sum of Rs.53,52,607.73 was due and payable by the Respondent/Corporate Debtor. Per contra, the Respondent/Corporate Debtor had filed a Statement of Accounts pertaining to the Appellant/Operational Creditor which showed that a sum of Rs.60,169/- was pending, to be paid by the Corporate Debtor to the Operational Creditor. The Adjudicating Authority in the impugned order came to the resultant conclusion that only upon the reconciliation of Accounts, the exact amount which became due and payable by the Respondent/Corporate Debtor could be ascertained. Further, to find out the aspect of Debt and Default the accounts of parties are only to be reconciled.
NCLAT holds that that the Adjudicating Authority came to the right conclusion that the Debt claimed by the Appellant/Operational Creditor cannot be decided in a summary jurisdiction under the I&B Code, 2016 and opined that it would be appropriate for the parties to relegate to civil proceedings or to arbitration if the same was contemplated and dismissed the CP.