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Homebuyers, whether they have an order or Decree from the RERA or who do not have any Decree or order from RERA, belong to same category of Allottees and are required to comply with 2nd Proviso to Section 7(1) of IBC and will not be treated as Decree Holder – Shri Rahul Gyanchandani and Ors. Vs. Parsvnath Landmark Developers Pvt. Ltd. – NCLAT New Delhi

In this important judgment, NCLAT clarified that:
(i) The Homebuyers cannot be said to go out of the definition of allottees merely because they have an order in their favour by RERA and the Homebuyers’ submission that they should be treated in a different category, i.e., category of Decree Holder and are not required to comply with 2nd Proviso to Section 7(1) of IBC, cannot be accepted.
(ii) The Homebuyers even after order of the RERA, directing for refund by the Corporate Debtor, continued to be allottees and they have filed Section 7 Application as Financial Creditor of the Corporate Debtor. They are mandatorily required to comply with 2nd Proviso to Section 7(1) of IBC.
(iii) Homebuyers, whether they have an order or Decree from the RERA or who do not have any Decree or order from RERA, belong to same category of allottees and no distinction can be made on the said ground.

Homebuyers, whether they have an order or Decree from the RERA or who do not have any Decree or order from RERA, belong to same category of Allottees and are required to comply with 2nd Proviso to Section 7(1) of IBC and will not be treated as Decree Holder – Shri Rahul Gyanchandani and Ors. Vs. Parsvnath Landmark Developers Pvt. Ltd. – NCLAT New Delhi Read Post »

The IBC does not contemplate multiplicity of applications against the same Personal Guarantor, when the Insolvency Resolution Process commences against a Personal Guarantor, claims of all Creditors are taken care – Union Bank of India Vs. Mr. P.K. Balasubramanian – NCLAT Chennai

Issue in this case that Section 95 Application was filed by Appellant/Union Bank of India three days prior to the date when the State Bank of India had filed their Application and therefore their Application ought to have been admitted first.
NCLAT held that indeed, the date of filing of the application under Section 95 is what is to be taken into account and not the date when the application is numbered. There is no appreciable evidence on record to state that the said application was defective. 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 Code does not contemplate multiplicity of applications against the same Personal Guarantor. This Tribunal is of the earnest view that when the Insolvency Resolution Process commences against a Personal Guarantor, Claims of all Creditors are taken care of under the scheme of the I & B Code, 2016.

The IBC does not contemplate multiplicity of applications against the same Personal Guarantor, when the Insolvency Resolution Process commences against a Personal Guarantor, claims of all Creditors are taken care – Union Bank of India Vs. Mr. P.K. Balasubramanian – NCLAT Chennai Read Post »

Disbursal of an amount by itself cannot be construed as the existence of financial debt since there is no written terms and conditions between the parties – Narendra Promtoers & Fincon Pvt. Ltd. Vs. Vinline Engineering Pvt. Ltd. – NCLT Kolkata Bench

As per the RBI guidelines on Fair Practices Code for NBFCs, dated 18 February 2013, the NBFCs should convey in writing to the borrower in the vernacular language as understood by the borrower by means of sanction letter or otherwise, the amount of loan sanctioned along with the terms and conditions including annualized rate of interest and method of application thereof and keep the acceptance of these terms and conditions by the borrower on its record. The RBI’s circulars have statutory force, and this is well recognised in law. Hence, it is mandatory on the part of Financial Creditor, being a NBFCs to keep the terms and conditions recorded in writing.
On perusal of the bank statement submitted by the Financial Creditor, it can be corroborated that a sum of Rs. 10 lakh was disbursed by the Financial Creditor to the Corporate Debtor on 08.09.2015. However, the disbursal by itself cannot be construed as the existence of financial debt since the written terms and conditions between the parties are not before us. There is nothing on record to show that such disbursement was a loan.

Disbursal of an amount by itself cannot be construed as the existence of financial debt since there is no written terms and conditions between the parties – Narendra Promtoers & Fincon Pvt. Ltd. Vs. Vinline Engineering Pvt. Ltd. – NCLT Kolkata Bench Read Post »

After ample opportunities granted by the Adjudicating Authority when the Appellant has not availed the opportunities to appear and also not filed reply to Section 9 Application, no option was left with the Adjudicating Authority except to proceed ex-parte and pass order of admission – Vinay Kumar Ranchhoddas Mohota Vs. Shree Shyam Trading Company & Anr. – NCLAT New Delhi

NCLAT holds that after ample opportunities granted by the Adjudicating Authority when the Appellant has not availed the opportunities to appear and also not filed reply to Section 9 Application, no option was left with the Adjudicating Authority except to proceed ex-parte and pass order of admission. We are of the view that the Adjudicating Authority has committed no error in admitting the Application under Section 9

After ample opportunities granted by the Adjudicating Authority when the Appellant has not availed the opportunities to appear and also not filed reply to Section 9 Application, no option was left with the Adjudicating Authority except to proceed ex-parte and pass order of admission – Vinay Kumar Ranchhoddas Mohota Vs. Shree Shyam Trading Company & Anr. – NCLAT New Delhi Read Post »

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