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The non-mentioning of the Date of Default does not affect the merits of the Section 9 Application filed by the Operational Creditor under IBC – M/s. Geocon Infra Pvt. Ltd. Vs. M/s. Brij Gopal Construction Company Pvt. Ltd. – NCLT New Delhi Bench Court-III

In the application filed u/s 9 of IBC, NCLT New Delhi Bench Court-III held that the date of default has not been specifically mentioned neither in the Demand Notice nor in Part-IV of the application. On perusal of Invoice no. 003 dated 13.12.2021 issued by the Operational Creditor to the Corporate Debtor, it appears that the goods were delivered on 13.12.2021. The payment by the Corporate Debtor was to be made within 30 days i.e. by 12.01.2022, as per Invoice no. 003 which has not been made. Therefore, the default occurred and thus we assume the date of default in the present matter to be 12.01.2022. Hence, we observe that the non-mentioning of the Date of Default does not affect the merits of the present case.

The non-mentioning of the Date of Default does not affect the merits of the Section 9 Application filed by the Operational Creditor under IBC – M/s. Geocon Infra Pvt. Ltd. Vs. M/s. Brij Gopal Construction Company Pvt. Ltd. – NCLT New Delhi Bench Court-III Read Post »

An arbitration proceedings and insolvency proceedings cannot go on together – M/s. KK Ropeways Ltd. Vs. M/s. Billion Smiles Hospitality Pvt. Ltd. – NCLAT Chennai

NCLAT held that a dispute in existence means and includes raising a dispute before a Court of law or an Arbitral Tribunal, before receipt of Notice under Section 8 of the IBC, 2016. Further, dispute continues at stage where challenge to an Arbitral Award in an appeal is projected by a party, as opined by this Tribunal. So long as a dispute truly exists in fact and it is not spurious or an imaginary and not a hypothetical one an Adjudicating Authority/Tribunal is to reject the Petition / Application filed under the I & B Code, 2016. It is to be remembered, that an Arbitration Proceedings and I & B Code Proceedings cannot go on together in the considered opinion of this Tribunal.

An arbitration proceedings and insolvency proceedings cannot go on together – M/s. KK Ropeways Ltd. Vs. M/s. Billion Smiles Hospitality Pvt. Ltd. – NCLAT Chennai Read Post »

After Secured Creditors relinquished their security interest under Liquidation, they cannot claim first and exclusive charge on the security/Property in distribution of assets – Oriental Bank of Commerce Vs. Anil Anchalia, Liquidator of M/s. Bala Techno Industries Ltd. – NCLAT New Delhi

NCLAT observed that the Appellant had opted to relinquish its security exercising its right under Section 52 of the Code. After it relinquished the security, the secured creditors are entitled for receiving payment as per Section 53. The issue is no more res integra in view of the judgment of the Hon’ble Supreme Court in India Resurgence ARC Pvt. Ltd. Vs. M/s. Amit Metaliks Ltd. (2021) ibclaw.in 87 SC. NCLAT held that we thus, do not find any merit in the submissions of the Learned Counsel for the Appellant. The submission that earlier judgment of this Tribunal in Technology Development Board Vs. Mr. Anil Goel Liquidator of Gujarat Oleo Chem Limited (GOCL) (2021) ibclaw.in 175 NCLAT having been stayed by the Hon’ble Supreme Court on 29.06.2021, no reliance can be placed on the said judgment looses its importance in view of the subsequent judgment of the Hon’ble Supreme Court dated 13.05.2021 M/s. Amit Metaliks Ltd. (supra).

After Secured Creditors relinquished their security interest under Liquidation, they cannot claim first and exclusive charge on the security/Property in distribution of assets – Oriental Bank of Commerce Vs. Anil Anchalia, Liquidator of M/s. Bala Techno Industries Ltd. – NCLAT New Delhi Read Post »

A liquidation estate does not include the sums due to any workman or employee from the Provident Fund etc. – The Central Board of Trustees, EPF Vs. The Liquidator (Sri. Gorur Narasimhamurthy Venkataraman) M/s. Bunt Solar India Pvt. Ltd. – NCLAT Chennai

The main contention of the Appellant is that Section 53 of the IBC is not applicable in the case of EPF. Since the Employees Provident Fund Act is a special Act and prevails over all other acts and submits that the dues which are payable to the employees cannot be treated as part of the asset of the Corporate Debtor.
NCLAT held that there is no dispute with regard to that and we are in agreement with the said position of law. Even Section 36(4(a)(iii)) of Code 2016 states that the following shall not be included in the ‘Liquidation Assets’ and shall not be used for recovery in the liquidation Sub Section: (4) of Section:36 of IBC reads as “The following shall not be included in the Liquidation Estate assets and shall not be used for recovery in the Liquidation. Sub Clause (iii) of clause (b) of sub-Section (4) of Section 36 reads as under, “All sums due to any Workman or employee from the provident fund, the pension fund and the gratuity fund”. From reading of this provision, it is clear that a liquidation estate does not include the sums due to any workman or employee from the Provident Fund etc.

A liquidation estate does not include the sums due to any workman or employee from the Provident Fund etc. – The Central Board of Trustees, EPF Vs. The Liquidator (Sri. Gorur Narasimhamurthy Venkataraman) M/s. Bunt Solar India Pvt. Ltd. – NCLAT Chennai Read Post »

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