378

Whether claims for ‘loss of rent,’ ‘arbitration costs,’ and ‘damages’ by Home allottees would be categorized as Financial Debt under IBC – Mr Jossy Steephen Kattur RP of Kerala Chamber of Commerce and Industries Vs. Phoenix ARC Pvt. Ltd. and Ors. – NCLT Kochi Bench

/ 4 minutes of reading

Hon’ble NCLT Kochi Bench held that:
(i) Whether the liability originates from an arbitral award or a court decree, it would be classified as either financial or operational debt, contingent upon the intrinsic nature of the underlying claim as determined by the arbitral or court proceedings.
(ii) The categorization of creditors under the Code depends on understanding the fundamental nature of the transaction.
(iii) Considering the underlying nature of claims of ‘loss of rent,’ ‘cost of arbitration,’ and ‘damages’, we find it right to reclassify these claims from ‘other creditors’ to “Financial Creditors.”

Whether claims for ‘loss of rent,’ ‘arbitration costs,’ and ‘damages’ by Home allottees would be categorized as Financial Debt under IBC – Mr Jossy Steephen Kattur RP of Kerala Chamber of Commerce and Industries Vs. Phoenix ARC Pvt. Ltd. and Ors. – NCLT Kochi Bench Read Post »

The date of default by the Guarantor shall arise only when demand is issued by the Bank to the Corporate Guarantor – J.C. Flowers Asset Reconstruction Pvt. Vs. Deserve Exim Pvt. Ltd. – NCLAT New Delhi

/ 12 minutes of reading

In this case, the issue before the NCLAT is whether the default on the part of the Corporate Debtor i.e. Corporate Guarantor can be on any date prior to when the guarantee was invoked is the question to be considered.
NCLAT referred judgment in Pooja Ramesh Singh vs. State Bank of India (2023) ibclaw.in 280 NCLAT and held that:
(i) The Guarantee Deed contemplates demand by the bank, hence, unless demand is made by the bank to the Corporate Debtor, no default can be said to have been committed by the Corporate Guarantor.
(ii) The date of default by the Guarantor shall arise only when demand is issued by the Bank to the Corporate Guarantor. The fact that the Corporate Guarantor has given indemnity to the Bank also shall operate only after default is committed by the Guarantor. Indemnity can be enforced against the Corporate Guarantor but it cannot itself change the date of default on part of the Guarantor.

The date of default by the Guarantor shall arise only when demand is issued by the Bank to the Corporate Guarantor – J.C. Flowers Asset Reconstruction Pvt. Vs. Deserve Exim Pvt. Ltd. – NCLAT New Delhi Read Post »

The arbitral tribunal is the ultimate master of the quantity and quality of evidence and that a possible view of the arbitral tribunal, must necessarily pass muster in a challenge raised under Section 34 of the Arbitration Act – Kavis Fashions Pvt. Ltd. Vs. Dimple Enterprises and others – Bombay High Court

/ 43 minutes of reading

The Supreme Court’s judgement in the case of Associate Builders Vs. DDA (2017) ibclaw.in 273 SC, which indicates that the arbitral tribunal is the ultimate master of the quantity and quality of evidence and that a possible view of the arbitral tribunal, must necessarily pass muster in a challenge raised under Section 34 of the Arbitration Act. This Court is not sitting in appeal over the findings rendered by the arbitral tribunal. This Court is of the opinion that the tribunal discussed each and every aspect of the matter, including the oral and documentary evidence on record, on the question of readiness and willingness, while rendering adverse findings against the petitioner. The findings rendered by the tribunal in that regard constitute a possible view in the matter, and therefore, no interference is warranted in the facts and circumstances of the present case.

The arbitral tribunal is the ultimate master of the quantity and quality of evidence and that a possible view of the arbitral tribunal, must necessarily pass muster in a challenge raised under Section 34 of the Arbitration Act – Kavis Fashions Pvt. Ltd. Vs. Dimple Enterprises and others – Bombay High Court Read Post »

The provisions of Section 65 of IBC have been brought on statute particularly to check and prevent misuse of the provisions of law, when application u/s 7 is found to have been filed for some ulterior motive other than the resolution of insolvency of a corporate debtor – Devi Enterprises Ltd. Vs. Gurudev Infra Projects Ltd. – NCLT Allahabad Bench

/ 3 minutes of reading

The Adjudicating Authority observed that if the claim of the financial creditor that when there is a debt which is due and payable both in law and fact and a default occurs, then the Adjudicating Authority must admit this application subject to other conditions i.e. the amount of default should be more than the threshold limit and not barred by limitation. In our view, if this plea is accepted then the provisions of Section 65 of IBC, 2016 would become redundant as an empty provision in the statute. We are of the view that this is certainly not the purpose of legislature. The provisions of Section 65 of IBC, 2016 have been brought on statute particularly to check and prevent misuse of the provisions of law, when application u/s 7 is found to have been filed for some ulterior motive other than the resolution of insolvency of a corporate debtor. The twin conditions for that is the application u/s 7 of IBC, 2016 should have been filed with malicious intent and for any purposes other than the resolution of insolvency.

The provisions of Section 65 of IBC have been brought on statute particularly to check and prevent misuse of the provisions of law, when application u/s 7 is found to have been filed for some ulterior motive other than the resolution of insolvency of a corporate debtor – Devi Enterprises Ltd. Vs. Gurudev Infra Projects Ltd. – NCLT Allahabad Bench Read Post »

No waiver of any fees or stamp duty to Resolution Applicant on increasing the authorized share capital – BRS Ventures Investment Ltd. Vs. Registrar of Companies(RoC), Guwahati – NCLAT New Delhi

/ 12 minutes of reading

In this case, the Resolution Applicant of Assam Company India Ltd. (ACIL) filed application to increase the authorized share capital without paying any fees/Stamp duty to the RoC. The Appellate Tribunal upheld the order and held that the Adjudicating Authority while approving the Resolution Plan has expressly covered the issues as required for the approval of the plan and nowhere such waival is explicitly or implicitly provided for. We also do not see any reason that when a new company takes over and starts at a new slate and take certain management decision then everything cannot be exempted at a later stage as it is a business decision to expand the business and based on those probability of cash inflow, cash outflow is provisioned for.

No waiver of any fees or stamp duty to Resolution Applicant on increasing the authorized share capital – BRS Ventures Investment Ltd. Vs. Registrar of Companies(RoC), Guwahati – NCLAT New Delhi Read Post »

Scroll to Top