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Is settlement (OTS) agreement a novation of the Contract? – Ms. Mausumi Bhattacharjee Vs. Jumbo Chemicals And Allied Industries Pvt. Ltd. and Anr. – NCLAT New Delhi

Hon’ble NCLAT held that:
(i) The requisites of a novation may include elements like an agreement of all the parties to a new contract, the extinguishment of the old obligations, and the validity in supersession of old contract by the new contract.
(ii) If the contract is altered in material particulars to change its essential character, the modified contract must be read as doing away with the original contract but if the modified contract has no independent contractual force, no new contract comes into play.
(iii) The question whether a subsequent agreement is an additional to the main agreement or not; as well as the fact whether new contract supercede old contract would depend on the facts and circumstances of each case.

Is settlement (OTS) agreement a novation of the Contract? – Ms. Mausumi Bhattacharjee Vs. Jumbo Chemicals And Allied Industries Pvt. Ltd. and Anr. – NCLAT New Delhi Read Post »

The Insolvency Code (IBC) nowhere prescribes that there should be a written agreement between the parties to prove the loan and its disbursement to be treated as Financial Debt – Satish Balan Director of Balan and Chheda Developers Pvt. Ltd. Vs. Mrs. Neeta Navin Nagda – NCLAT New Delhi

The only issue which has been raised and need to be decided by NCLAT is that whether money contributed by the Respondent No. 1 along with her nominees was in nature of financial debt or investment by way of equity in the Corporate Debtor.
NCLAT held that (i) It is for the Adjudicating Authority to look into the various documents, records and evidence of default as furnished in part V of Form 1 of the application filed under Section 7 of the Code.
(ii) The Code nowhere prescribes that there should be a written agreement between the parties to prove the loan and its disbursement to be treated as financial debts.
(iii) If there are acknowledgments by the Corporate Debtor and where the statements of accounts of the Corporate Debtor are in position to proof disbursement of loan and payment of interest, the absence of formal written agreement would not bar the Financial Creditor from initiating the CIRP.

The Insolvency Code (IBC) nowhere prescribes that there should be a written agreement between the parties to prove the loan and its disbursement to be treated as Financial Debt – Satish Balan Director of Balan and Chheda Developers Pvt. Ltd. Vs. Mrs. Neeta Navin Nagda – NCLAT New Delhi Read Post »

If an order/judgment of a Tribunal is not pronounced at all, the same is a nullity in the eye of law – M/s. Ergomaxx (India) Pvt. Ltd. Vs. The Registrar, National Company Law Tribunal – NCLAT Chennai

The grievance of the Appellant is that till date the matter was never listed for pronouncement of an order and that the Appellant while looking at the Tribunal’s website could not find the Impugned Order as the party names linked on the NCLT’s website was with a typo ‘Kruegar” instead of ‘Krueger’ and after trying various permutation/combination to the surprise of the Appellant on 06.02.2021, it found an order dated 07.12.2020 which was uploaded on the Tribunal’s website of which the Appellant had no knowledge.
NCLAT held that when the said final Impugned Order dated 07.12.2020 was not to be found nowhere in the NCLT Website, as averred by the Appellant, (being a predated one) and only later it came to know on 06.02.2021, then in law, it is held as that the Impugned Order dated 07.12.2020 was never pronounced by the Adjudicating Authority (there being a significant omission in regard to the pronouncement of an order by a Tribunal and the pronouncement being an essential judicial act) and hence it is declared nullity in the eye of law, apart from the crystalline fact is that the same was not listed for pronouncement.

If an order/judgment of a Tribunal is not pronounced at all, the same is a nullity in the eye of law – M/s. Ergomaxx (India) Pvt. Ltd. Vs. The Registrar, National Company Law Tribunal – NCLAT Chennai Read Post »

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