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Resolution Professional does not have right to inspect a third party’s property when the lease period had already expired and to take possession of the leased property by virtue of Section 14(1)(d) of IBC when the property was not under the possession of Corporate Debtor at the time of CIRP admission – Mrs. Durdana Aabid Ali and Ors. Vs. Vijay Kumar V Iyer RP of Future Retail Ltd. – NCLAT New Delhi

Hon’ble NCLAT held that RP cannot be said to have the right to inspect the subject property of a third party at a time when the lease period had already expired. The subject property could not be included in the list of assets of the Corporate Debtor since there is no subsisting contract between the Appellant and Corporate Debtor which would entitle the RP to claim any right, title or interest in the subject property. Section 14(1)(d) will not come to the rescue of the RP, since what is prohibited therein, is only the right of the Corporate Debtor not to be dispossessed but not the right to have renewal of the lease of such property. Under Section 14(1)(d) of IBC, recovery of any property by any owner or lessor which is occupied by the Corporate Debtor is prohibited. The purpose of moratorium is only to preserve the status quo but not to create a new right.

Resolution Professional does not have right to inspect a third party’s property when the lease period had already expired and to take possession of the leased property by virtue of Section 14(1)(d) of IBC when the property was not under the possession of Corporate Debtor at the time of CIRP admission – Mrs. Durdana Aabid Ali and Ors. Vs. Vijay Kumar V Iyer RP of Future Retail Ltd. – NCLAT New Delhi Read Post »

Mere allegations that IRP/RP has not conducted the CIRP in accordance with law, the order approving the Plan cannot be interfered with – Brijesh Singh Bhadauriya Vs. Pinakin Shah, IRP of Sintex Industries Ltd. & Ors. – NCLAT New Delhi

The Appellant who was shareholder of the Corporate Debtor has come up in this Appeal challenging the Order of the approval of the Resolution Plan by the Adjudicating Authority. NCLAT held that appellant is shareholder and was not part of the process in the CIRP. Suspended Directors were part of the CIRP and were present in the meetings. Any aggrieved persons may approach the CoC for removal of the RP/IRP or to approach the Adjudicating Authority. IRP has conducted the entire process with the approval of the CoC. Resolution Plan has been placed before the Adjudicating Authority, the Plan having been approved by the Adjudicating Authority, commercial wisdom of the COC is not easily to be interfered with in exercise of jurisdiction by the Adjudicating Authority or by this Tribunal. Mere allegations that IRP/RP has not conducted the CIRP in accordance with law, the order approving the Plan can not be interfered with.

Mere allegations that IRP/RP has not conducted the CIRP in accordance with law, the order approving the Plan cannot be interfered with – Brijesh Singh Bhadauriya Vs. Pinakin Shah, IRP of Sintex Industries Ltd. & Ors. – NCLAT New Delhi Read Post »

If Arbitrators use the contract itself to determine a dispute, clauses should, in principle, be construed ‘contra proferentem’, meaning that they should be interpreted against the party that drafted it – Bharat Sanchar Nigam Ltd. Vs. M/s Maverick Mobile Solution – Delhi High Court

The decisive test is that first, the learned arbitrator had to adopt a judicial approach; second, the principles of natural justice had to be upheld; third, the decision must not have been egregious, or rather, perverse. The principle is that if the Arbitrators use the contract itself to determine a dispute, clauses should, in principle, be construed contra proferentem, meaning that they should be interpreted against the party that drafted it. The rule of contra proferentem can be regarded as a ‘general canon’ of interpretation that exists independently of national legal systems. Learned Sole Arbitrator does not have the power to adjudicate and allow a claim when there is no evidence to support it. The decision of the learned Arbitral Tribunal must be on the basis of the evidence placed on record. In ICC Case No. 7110, (1999) 10 ICC Bulletin 39, 44, the Arbitral Tribunal made it clear that it is a ‘general principle of interpretation’ widely accepted by national legal systems and by the practice of International Arbitral Tribunals, including ICC Arbitral Tribunals, that in case of doubt or ambiguity, contractual provisions, terms or clauses should be interpreted against the drafting party. Being a creature of the Contract, the Arbitrator also has to analyze and adjudicate whether the Contract is made fairly. The principle of contra proferentem finds its relevance as the Principle of Natural Justice also finds its place in the interpretation of Contracts. The Constitution of India, is the law of the land and it must be treated as such irrespective of the proceedings, even in Arbitration.

If Arbitrators use the contract itself to determine a dispute, clauses should, in principle, be construed ‘contra proferentem’, meaning that they should be interpreted against the party that drafted it – Bharat Sanchar Nigam Ltd. Vs. M/s Maverick Mobile Solution – Delhi High Court Read Post »

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