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In Personal Guarantor Insolvency, objection regarding the maintainability to Resolution Professional can be raised the time of hearing of the application under Section 100 of the Code and not at the time of appointment of the RP under Section 95 of IBC – Vikas Shambhukumar Kasliwa Vs. Indiabulls Housing Finance Ltd. and Anr. – NCLAT New Delhi

Learned Counsel for the Appellant challenging the order submits that the loan was assigned but assignee has not come on the record. He has further raised certain other issues. In view of the Judgment of the Hon’ble Supreme Court in Dilip B. Jiwrajka Vs. Union of India & Ors., it is well settled that no adjudicatory issue can be raised at the time of appointment of the RP under Section 95 and all issues can be looked into and raised when the application come for admission or rejection under Section 100.

In Personal Guarantor Insolvency, objection regarding the maintainability to Resolution Professional can be raised the time of hearing of the application under Section 100 of the Code and not at the time of appointment of the RP under Section 95 of IBC – Vikas Shambhukumar Kasliwa Vs. Indiabulls Housing Finance Ltd. and Anr. – NCLAT New Delhi Read Post »

Where is an assignment of a contract containing an arbitration agreement, the assignee will be bound by the arbitration agreement – DLF Ltd. Vs. PNB Housing Finance Ltd. and Ors. – Delhi High Court

The law is also well settled that where there is an assignment of a contract containing an arbitration agreement, the assignee will be bound by the arbitration agreement. The assignee would take both the benefit and burden of the arbitration agreement i.e., the assignee can invoke the arbitration agreement to pursue a claim and can be compelled to arbitrate a dispute raised by another party.

Where is an assignment of a contract containing an arbitration agreement, the assignee will be bound by the arbitration agreement – DLF Ltd. Vs. PNB Housing Finance Ltd. and Ors. – Delhi High Court Read Post »

It is always open for Successful Resolution Applicant to seek protection under Section 32A of IBC – Paramjit Gandhi Vs. Ashwini Mehra, Chairman Monitoring Committee of Educomp Infrastructure & School Management Ltd. & Ors. – NCLAT New Delhi

Both the applications were filed by the Successful Resolution Applicant seeking directions with regard to encroachment on the land of the Corporate Debtor and consequential implementation of the Resolution Plan. NCLAT held that Section 32A being a statute regarding liability for prior offences, as and when such occasion arises, it is always open for the Appellant to seek protection under Section 32A in accordance with law.

It is always open for Successful Resolution Applicant to seek protection under Section 32A of IBC – Paramjit Gandhi Vs. Ashwini Mehra, Chairman Monitoring Committee of Educomp Infrastructure & School Management Ltd. & Ors. – NCLAT New Delhi Read Post »

Whether by operation of provision of I&B Code, the criminal prosecution initiated under Section 138 r/w 141 of Negotiable Instruments Act, r/w 200 of Cr.P.C can be terminated – G.Ajay Agarwal Vs. M/s. Bhagwandas and Co. – Madras High Court

The question as to whether by operation of provision of I&B Code, the criminal prosecution initiated under Section 138 r/w 141 of Negotiable Instruments Act, r/w 200 of Cr.P.C can be terminated, is no longer res integra in view of the above stated judgment in P.Mohanraj’s case (2021) ibclaw.in 24 SC, wherein the Hon’ble Supreme Court has categorically held that Section 138/141 proceeding against a corporate debtor is covered by Section 14(1)(a) of I&B Code. Moratorium order would not cover person in those cases who are not a corporate debtor, but a Director thereof. In other words, the moratorium provision not extending to persons other than the corporate debtor. In respect of persons other than the corporate debtor, Director or Managing Director, as the case may be, Section 14 of I&B Code did not apply to Section 138 proceedings and further, issued direction that complaint is directed to continue against the Managing Director and Director, respectively and observing that Section 14 of I&B code could not cover proceedings already initiated under Section 138 of NI Act, held that such a proceedings can continue against erstwhile Directors/persons in charge of and responsible for the conduct of the business of the corporate debtor.

Whether by operation of provision of I&B Code, the criminal prosecution initiated under Section 138 r/w 141 of Negotiable Instruments Act, r/w 200 of Cr.P.C can be terminated – G.Ajay Agarwal Vs. M/s. Bhagwandas and Co. – Madras High Court Read Post »

Liquidator is permitted to invoke Arbitration Proceedings against IOCL and Foster Wheeler – Queztal Endeavour Pvt. Ltd. Vs. Mr. Abhijit Guthatakurtha – NCLT Mumbai Bench

This IA is filed by the Liquidator under proviso to section 33(5) read with Section 35(1)(k) and 60(5) of the Insolvency and Bankruptcy Code 2016 seeking permission of this bench to invoke arbitration and institute related/ancillary proceedings on behalf of the Corporate Debtor against Indian Oil Corporation Limited (IOCL) and Foster Wheeler and related or ancillary proceedings in relation to the lumpsum turkey contract dated 28.02.2011 executed for Pradip Refinery Project, including for recovery of monies. The Adjudicating Authority held that on perusal of the averments made in the IA, this Bench is satisfied and accordingly Liquidator is permitted to invoke Arbitration Proceedings against IOCL and FW.

Liquidator is permitted to invoke Arbitration Proceedings against IOCL and Foster Wheeler – Queztal Endeavour Pvt. Ltd. Vs. Mr. Abhijit Guthatakurtha – NCLT Mumbai Bench Read Post »

The factum of pendency of an application under Section 25 read with Section 60(5) of IBC is not subject application for declaration of sale deed as null and void have no bearing on Application filed under Section 43 and 45 of the Code – Adriatic Sea Foods Pvt. Ltd. Vs. Suresh Kumar Jain – NCLAT New Delhi

NCLAT held that under Section 45 sub-section 1 of the Code, the Resolution Professional can make an application to the Adjudicating Authority to declare such transactions as void and reverse the effect of such transaction. Where an Application under Section 45(1) is allowed the effect of the Order has to be treated to be in accordance with Section 45(1). The use of expression used in the Impugned Order is that “as a consequent to the cancellation of the sale of the Mumbai Plant, it is hereby directed that the possession of the Mumbai Plant be handed over to the Resolution Professional”. The Adjudicating Authority itself has not directed for cancellation of the sale rather cancellation of sale deed was inferred on account of non-payment of balance consideration and entry made by the Bank in its books of accounts. Direction in the Impugned Order is only to hand over the possession of the plant to the Resolution Professional which is consequential action on account of reversal of the transaction. The Order passed by the Adjudicating Authority thus cannot be said to be beyond Section 45(1). However, when transaction is treated to be void it loses all its legal effect and submissions of Learned Counsel for the Appellant that since application for declaring the transaction void being Application No. 1304 of 2020 pending no direction could have been issued by the Adjudicating Authority as has been issued in the Impugned Order cannot be accepted. The factum of pendency of Application being 1304 of 2020 under Section 25 read with Section 60(5) is not subject application for declaration of sale deed as null and void have no bearing on Application filed under Section 43 and 45 of the Code thus pendency of I.A. No. 1304 of 2020 has no bearing on disposal of the Application 3175 of 2020.

The factum of pendency of an application under Section 25 read with Section 60(5) of IBC is not subject application for declaration of sale deed as null and void have no bearing on Application filed under Section 43 and 45 of the Code – Adriatic Sea Foods Pvt. Ltd. Vs. Suresh Kumar Jain – NCLAT New Delhi Read Post »

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