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Since a challenge to arbitral award itself is yet to be adjudicated upon and the amount not having been crystallised both in nature and the magnitude, it does not fit the bill for filing a petition under Section 9 of IBC – Puravankara Ltd. Vs. Simplex Infrastructure Ltd. – NCLT Kolkata Bench

The entire scheme of section 9 is structured in a manner that the small vendors who are delivering goods and/or services to the Operational Creditors, if not paid by them can file a Petition under Section 9. This is not the underlying logic of filing this petition here by the Operation Creditor as he has not provided any goods or services to the Corporate Debtor and not the other way round. So therefore, this petition is not a proper mode to realise or recover the decree amount. It is thus a modus to get a decree executed or in other words recover the money deftly shrouded in the garb of a Section 9 Petition.

Since a challenge to arbitral award itself is yet to be adjudicated upon and the amount not having been crystallised both in nature and the magnitude, it does not fit the bill for filing a petition under Section 9 of IBC – Puravankara Ltd. Vs. Simplex Infrastructure Ltd. – NCLT Kolkata Bench Read Post »

The transaction of transfer of assets within the Group Companies will not come within the umbrage of the fraudulent trading as per Section 66(1) of the Code – Renuka Devi Rangaswamy,IRP of M/s. Regen Infrastructure and Services Pvt. Ltd. Vs. Mr. Madhusudan Khemka – NCLAT Chennai

NCLAT held that: (i) under Section 66 of the Code, 2016, it is not essential to attract that there ought to be a debtor and a creditor relationship.
(ii) for proving a fraudulent trading needs meeting the high standard of proof which is attached to a fraudulent intent.
(iii) a Director of a Company may be proceeded against for a wrongful trading because of the reason of negligent failure of management.
(iv) dishonesty is an essential ingredient of fraudulent trading.
(v) the ingredients of Section 66 (1) and 66 (2) of the Code, 2016 operate in a different arena.
(vi) it is crystalline clear that the transaction of transfer of assets among / within the Group Companies, ex-facie, will not come within the umbrage of the fraudulent trading as per Section 66(1) of the Code, as opined by this Tribunal.

The transaction of transfer of assets within the Group Companies will not come within the umbrage of the fraudulent trading as per Section 66(1) of the Code – Renuka Devi Rangaswamy,IRP of M/s. Regen Infrastructure and Services Pvt. Ltd. Vs. Mr. Madhusudan Khemka – NCLAT Chennai Read Post »

Article 1 of the Limitation Act, 1963 is not attracted in case of an application under Section 9 of the IBC – S.M. Ghogbhai Vs. Schedulers Logistics India Pvt. Ltd. – NCLAT New Delhi

Learned Counsel for the Appellant submits that both the parties were maintaining a running account and there have been transactions inter se which is reflected from the Ledger Account filed by the Respondent. In the facts of the present case, Article 1 of the Limitation Act, 1963 was attracted as per which the limitation period of 3 years begins to run from the close of the year in which the last item admitted or proved is entered into the account.
NCLAT held that for the limitation for filing Section 9 application it is Article 137 of the Limitation Act, 1963 which is attracted. Under Article 137, time from which period begins to run is “when the right to apply accrues” the right to apply accrues when invoices issued by the Appellant to the Corporate Debtor were not paid. Invoices on the basis of which payment is claimed are more than three years earlier from the date of filing of Section 9 Application which is the basis for rejection of the Application of the Appellant by the Adjudicating Authority. We are not persuaded with the submissions of Learned Counsel for the Appellant that present is the case where Article 1 is applicable and limitation should be counted from 31st March, 2017.

Article 1 of the Limitation Act, 1963 is not attracted in case of an application under Section 9 of the IBC – S.M. Ghogbhai Vs. Schedulers Logistics India Pvt. Ltd. – NCLAT New Delhi Read Post »

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