775

In a real estate project, CoC in its commercial wisdom can take appropriate decision to satisfy the claim of class of creditors in a reasonable and fair manner and different treatment of two sets of Homebuyers in view of the allotment to Homebuyer with/without NOC of the mortgagee is justified – Sabari Realty Pvt. Ltd. Vs. Sivana Realty Pvt. Ltd. – NCLAT New Delhi

In this landmark judgment, Hon’ble NCLAT held that:
(i) Appellant, who is a dissatisfied minority, a single homebuyer has to sail alongwith the view of the majority in terms of the scheme of IBC.
(ii) Appellant as a class of homebuyers cannot be allowed to challenge the Resolution Plan which has received approval of class of homebuyers on the basis of majority of votes of homebuyers.
(iii) In a real estate project when the project spread into several units and several projects which are at different stages of construction the CoC in its commercial wisdom can take appropriate decision to satisfy the claim of class of creditors in a reasonable and fair manner.
(iv) Different treatment of two sets of homebuyers in view of the allotment to the homebuyer with/without NOC of the Mortgagee has rational for separate treatment
(v) Commercial wisdom of the Committee of Creditors, which has approved the Resolution Plan under which different treatment has been given to ‘Affected Homebuyers’ and ‘Unaffected Homebuyers’, cannot be faulted.

In a real estate project, CoC in its commercial wisdom can take appropriate decision to satisfy the claim of class of creditors in a reasonable and fair manner and different treatment of two sets of Homebuyers in view of the allotment to Homebuyer with/without NOC of the mortgagee is justified – Sabari Realty Pvt. Ltd. Vs. Sivana Realty Pvt. Ltd. – NCLAT New Delhi Read Post »

Any decision post transfer of assets regarding the management of assets, including that of the subsequent transfer of the said assets to another company, lies with Successful Auction Purchaser and the same is not covered within the jurisdiction of the Adjudicating Authority under the IBC – Asl Enterprises Ltd. Vs. Mr. Daulat Ram Jain, the liquidator of Adi Ispat Pvt. Ltd. – NCLT Kolkata Bench

In this case, the Successful Auction Purchaser in liquidation process created a subsidiary company and filed IA seeking permission for transfer of assets from Auction Purchaser to its subsidiary company.
NCLT Kolkata Bench observed that the Liquidator had no objections, a sale agreement for the assets of the Corporate Debtor was executed between the Auction Purchaser and the Liquidator of the Corporate Debtor, the assets are in possession of the Auction Purchaser and held that since the assets in question have been transferred vide sale agreement dated 20.03.2023 to the Auction Purchaser, i.e. a private company, any decision post the date of such transfer regarding the management of such assets, including that of the subsequent transfer of the said assets to another company, lies with the company. The same is not covered within the jurisdiction of the Adjudicating Authority under the IBC and as such, the prayers sought in the instant application cannot be granted.

Any decision post transfer of assets regarding the management of assets, including that of the subsequent transfer of the said assets to another company, lies with Successful Auction Purchaser and the same is not covered within the jurisdiction of the Adjudicating Authority under the IBC – Asl Enterprises Ltd. Vs. Mr. Daulat Ram Jain, the liquidator of Adi Ispat Pvt. Ltd. – NCLT Kolkata Bench Read Post »

Whether Corporate Debtor is entitled to invoke the power of the Adjudicating Authority under Rule 43 of the NCLT Rules, to call upon Financial Creditor to produce the original Corporate Guarantee deed executed but allegedly not tendered to the Financial Creditor for verification of Tribunal(NCLT)? – Ind Barath Power Infra Ltd. Vs. India Infrastructure Finance Co. Ltd. – NCLT Hyderabad Bench

Adjudicating Authority held that if a particular document be it primary or secondary is not placed/produced before the Tribunal by the financial creditor, the consequences if any, for such non-production may at best fall for consideration and invocation of the power of this Adjudicating Authority does not arise. The Rule 43 of NCLT Rule that for the purpose of satisfying itself as to the truth of the allegations made in the petition or application before passing the order, if the Adjudicating Authority require the parties to produce such further documentary or other evidence as it may consider necessary, the Adjudicating Authority may pass a direction to produce the document, as such a direction to produce a document at the behest of the opposite party is neither contemplated nor be given at the behest of the party under this Rule.

Whether Corporate Debtor is entitled to invoke the power of the Adjudicating Authority under Rule 43 of the NCLT Rules, to call upon Financial Creditor to produce the original Corporate Guarantee deed executed but allegedly not tendered to the Financial Creditor for verification of Tribunal(NCLT)? – Ind Barath Power Infra Ltd. Vs. India Infrastructure Finance Co. Ltd. – NCLT Hyderabad Bench Read Post »

The validity of notice U/s 226 of The Income Tax Act, 1961 cannot be challenged during the liquidation proceedings because as per the provisions of Section 33(5), any proceeding initiated prior to passing of liquidation order can be continued during the liquidation process but no new proceedings can be instituted against the Corporate Debtor – Supriyo Kumar Chaudhuri, Liquidator Vs. Assistant Commissioner of the Income Tax – NCLT Allahabad Bench

The notice U/s 226 of The Income Tax Act, 1961 was issued during the operation of moratorium u/s 14 of the Code, 2016, however, IRP/ RP did not challenge such notice and subsequent action of Respondent No. 2. On passing of order of liquidation, such moratorium has to come an end from the date of initiation of liquidation proceedings. Thus, as on date, the validity of such notice cannot be challenged during the liquidation proceedings because as per the provisions of Section 33(5), any proceeding initiated prior to passing of liquidation order can be continued during the liquidation process but no new proceedings can be instituted against the Corporate Debtor. Be that as it may, we further note that in the said notice the Income Tax Department has not directed Respondent No. 2 to freeze current and cash credit account standing in the name of the Corporate Debtor. It is not in dispute that the account so freezed, is the current account standing in the name of the Corporate Debtor. Hence, in our considered view, the Bank is not required to freeze the same and that should remain operative.

The validity of notice U/s 226 of The Income Tax Act, 1961 cannot be challenged during the liquidation proceedings because as per the provisions of Section 33(5), any proceeding initiated prior to passing of liquidation order can be continued during the liquidation process but no new proceedings can be instituted against the Corporate Debtor – Supriyo Kumar Chaudhuri, Liquidator Vs. Assistant Commissioner of the Income Tax – NCLT Allahabad Bench Read Post »

Scroll to Top