Bhagwati Singh Vs. Incab Industries Ltd. – NCLAT New Delhi
Login with GoogleOR Username Password Remember Me Forgot Password In case you’ve already logged in, click here […]
Bhagwati Singh Vs. Incab Industries Ltd. – NCLAT New Delhi Read Post »
Avez Azim Shaikh Vs. The Goa Real Estate Regulatory Authority – Maharashtra REAT
Login with GoogleOR Username Password Remember Me Forgot Password In case you’ve already logged in, click here
Avez Azim Shaikh Vs. The Goa Real Estate Regulatory Authority – Maharashtra REAT Read Post »
The expression District Magistrate/Chief Metropolitan Magistrate as appearing in Section 14 of the SARFAESI Act shall deem to mean and include Additional District Magistrate/Additional Chief Metropolitan Magistrate for the purposes of Section 14 of the SARFAESI Act – M/s R.D. Jain and Co. Vs. Capital First Ltd. & Ors. – Supreme Court
Hon’ble Supreme Court has upheld decision of Bombay High Court and held that Section 14(2) is an enabling provision and permits the CMM/DM to take such steps and use force, as may, in his opinion, be necessary. Sub¬-Section (1A) is in the nature of an explanatory provision and it merely restates the implicit power of the CMM/DM in taking services of any officer subordinate to him.
The powers exercised by the CMM/DM is a ministerial act. He cannot brook delay. Time is of the essence. This is the spirit of the special enactment.
While disposing of the application under Section 14 of the SARFAESI Act, no element of quasi-¬judicial function or application of mind would require. The Magistrate has to adjudicate and decide the correctness of the information given in the application and nothing more. Therefore, Section 14 does not involve an adjudicatory process qua points raised by the borrower against the secured creditor taking possession of secured assets.
The steps to be taken by the Chief Metropolitan Magistrate under Section 14 of the SARFAESI Act as observed hereinabove are ministerial in nature and does not involve any adjudicatory process and there is no element of any quasi¬-judicial function.
The expression “Chief Metropolitan Magistrate” as appearing in Section 14 of the SARFAESI Act shall deem to mean and include Additional Chief Metropolitan Magistrate for the purposes of Section 14 of the SARFAESI Act.
Similarly, when the Additional District Magistrates are conferred with the powers to be exercised by the District Magistrates either by delegation and/or by special orders and the Additional District Magistrates are exercising the same powers which are being exercised by the District Magistrates, the same analogy can be applied, more particularly, when the powers exercisable under Section 14 of the SARFAESI Act, are ministerial steps.
The Court also held that the contrary view taken by the other High Courts, namely, Gujarat High Court in the case of Pushpa Devi B Jain W/o Bhawarlal M Jain Vs. Indian Overseas Bank in Special Civil Application No. 19102/2015; Calcutta High Court in the case of Shri Chellaperumal & Anr. Vs. The Authorised Officer & Ors. in M.A. No. 26/2014 and Kerala High Court in the case of Aseena Vs. Sub¬-Divisional Magistrate and Ors. in W.P. (C) No. 3331/2007, is not a good law and are specifically overruled.
Whether the petitioner is in lawful possession under a valid lease or whether the petitioner is a protected tenant, DRT is to examine under Section 17(4A) of the SARFAESI Act, 2002 – Mohammed Maqmoor Ateeq Vs. HDB Financial Services Ltd. – Karnataka High Court
Hon’ble High Court held that in the present proceedings, I decline to examine as to whether the petitioner is in lawful possession under a valid lease and whether such valid lease is made prior to the creation of mortgage by the borrower in favour of the respondent-Financial Institution or whether the petitioner is a protected tenant, since the same could be examined by the Tribunal under Section 17(4A) of the 2002 Act, which requires placing of evidence to decide the said question.(
The phrase used in Section 17(1)(d) of the IBC that financial institution “shall act on the instructions of the IRP” does not mean that it authorises IRP/RP to compel the financial institution for maintaining the accounts of the Corporate Debtor to continue the Non-Fund Based Facility comforted by Bank Guarantee – Union Bank of India Vs. Mr Dinkar T. Venkatasubramanian RP of Amtek Auto Ltd.- NCLAT New Delhi
Login with GoogleOR Username Password Remember Me Forgot Password In case you’ve already logged in, click here
Jose Samuel Vs. Royals International Trade and Allied Products Pvt. Ltd. – NCLT Kochi Bench
Login with GoogleOR Username Password Remember Me Forgot Password In case you’ve already logged in, click here
The secured creditor would have a first charge over an asset and the charge created in favour of the State of Maharashtra under Section 37 of the MVAT Act would be subject to the first charge created under Section 26-E of the SARFAESI Act – Union Bank of India Vs. State of Maharashtra – Bombay High Court
Hon’ble High Court held that in the case of the Cosmos Co-operative Bank the Division Bench of this Court at the Principal seat at Bombay has held that on harmonious reading of Section 26-E of the SARFAESI Act and Section 37 of the MVAT Act it would be clear that the secured creditor would have a first charge over an asset and the charge created in favour of the State of Maharashtra under Section 37 of the MVAT Act would be subject to the first charge created by the Central Legislation namely, Section 26-E of the SARFAESI Act. In view of this settled legal position and in the background of the facts established in this case, in our view, the action initiated by the respondent Nos.1, 2 and 3 to the extent of two properties cannot be sustained.
An application of the force majeure clause would require an incisive judicial enquiry, it would not be possible for Adjudicating Authority to go there into by in a summary proceeding – Atul Rajwadkar, Liquidator for Gupta Infrastructure (India) Pvt. Ltd. Vs. Ranjan Agarwal – NCLT Mumbai Bench
Adjudicating Authority held that in our considered opinion the detailed appraisal of the terms and conditions of the lease and their ramifications including application of the force majeure clause would require an incisive judicial enquiry. It would not be possible for this Authority to go there into by in a summary proceeding as the present one. Since the Corporate Debtor is under CIRP, it would also be not appropriate for the Respondent to continue in the lease premises. His continuance in the shop would thwart the resolution process and would frustrate the object of the Code. It would accordingly be appropriate to direct the Respondent to handover the vacant possession of the shop room to the Applicant. The Applicant may approach the appropriate judicial forum for realisation of the outstanding rent. The realisation of the rent for the period of lockdown imposed in the area would be prejudicial. It would however be open to the appropriate judicial authority to consider the matter in the light of the effect of the pandemic on business establishments. Moreover when the Respondent did not do any business during the period.(p5-6)
For subsequent sale the Bank is required to provide 15 days’ sale notice to the public at large by publishing the sale notice in the newspapers and simultaneously a 15 days’ sale notice is required to be served to the borrowers/guarantors separately – M/s Axis Bank Ltd. Vs. M/s Paras Kumar Ranglal – DRAT Allahabad Bench
DRAT held that for subsequent sale the Bank is required to provide 15 days’ sale notice to the public at large by publishing the sale notice in the newspapers and simultaneously a 15 days’ sale notice is required to be served to the borrowers/guarantors separately. A mere publication of 15 days’ sale notice in the newspapers does not serve the purpose of the statute. Even otherwise, the Bank has not produced any evidence that the copy of publication in the newspapers has been sent to the borrowers within 15 days or any evidence to the effect that the borrowers had any knowledge of publication of sale notice on 3.7.2019.
COC is empowered to take decision to liquidate the Corporate Debtor any time after its constitution and before the confirmation of Resolution Plan – Mr. Manoharlal Mehta & Ors. Vs. Anil Vrijdas Rajkotia, Resolution Professional of K K Welding Ltd. – NCLAT New Delhi
NCLAT held that the Resolution of COC in regard to sending of Corporate Debtor into liquidation is not amenable to judicial review. The explanation to Section 33(2) by Act No. 26 of 2019 enforced w.e.f. 16th August, 2019 sufficiently makes it clear that the COC is empowered to take decision to liquidate the Corporate Debtor any time after its constitution and before the confirmation of Resolution Plan which, in plain terms, gives a pre-eminent position to the COC in taking such business decision in exercise of their commercial wisdom even when a Resolution Plan duly approved by it with requisite vote share is pending before the Adjudicating Authority for approval.