EMC Ltd.

With the finalization of insolvency resolution plan and the approval thereof by the NCLT, all dues of creditors, Corporate, Statutory and others stand extinguished and no demand can be raised for the period prior to the specified date – M/s EMC Ltd. Vs. State of Rajasthan – Rajasthan High Court

The Deputy Commissioner, State GST Department exercises quasi judicial functions while acting under the provisions of the GST Act and thus, it is expected from such officer to act judiciously, consider the reply of the party, apply mind to the facts and law and pass a reasoned order. However, a bare perusal of the impugned orders dated 22.04.2020 is sufficient to satisfy us that the officer acted in gross defiance of the settled legal position as expounded by Hon’ble Supreme Court in the case of Committee of Creditors of Essar Steel India Ltd. (supra) and this Court in the case of Ultra Tech Nathdwara Cement Ltd. (supra). Such laconic approach of the authority exercising quasi judicial powers reflects sheer incompetency and pedantic approach and adds to the evergrowing dockets of cases in the courts. The reply of the petitioner was incorporated in the order dated 22.04.2020 by using the procedure of cut-copy-paste but without making the slightest consideration of the averments made therein, the demand orders were issued in a sheerly perfunctory manner. We have no doubt that the proceedings were required to be dropped by the authority in light of the reply.

With the finalization of insolvency resolution plan and the approval thereof by the NCLT, all dues of creditors, Corporate, Statutory and others stand extinguished and no demand can be raised for the period prior to the specified date – M/s EMC Ltd. Vs. State of Rajasthan – Rajasthan High Court Read Post »

There is no provision in IBC for revaluation, much less if a plan has already been received and its value is known to the CoC, as the CoC has to take a commercial call on the matter considering various Pros and Cons in terms of the recovery of their claims in an absolute sense and not on relative term – Kannan Tiruvengadam RP for EMC Ltd. – NCLT Kolkata Bench

The corporate debtor, EMC Limited was admitted to CIRP on 12.112018 subsequent to which the resolution process was initiated and a resolution plan was approved by this Adjudicating authority. However, as the successful resolution applicant failed to implement the Resolution Plan, this Adjudicating Authority vide Order dated 20.04.2018, directed a limited reboot of the CIRP from the stage of Form G publication. The Present application filed by the RP appointed in the matter seeking reliefs that pass an order to conduct fresh valuation of the Corporate Debtor to determine the Fair Value of the Corporate Debtor as on 20.04.2022.

There is no provision in IBC for revaluation, much less if a plan has already been received and its value is known to the CoC, as the CoC has to take a commercial call on the matter considering various Pros and Cons in terms of the recovery of their claims in an absolute sense and not on relative term – Kannan Tiruvengadam RP for EMC Ltd. – NCLT Kolkata Bench Read Post »

Adjudicating Authority while exercising jurisdiction under the Code is not required to return any finding of an offence within the meaning of Section 74 of IBC – Almas Global Opportunity Fund SPC Vs. CA Kannan Triuvengadam – NCLAT New Delhi

NCLAT held that Section 33, sub-section (3) uses the expression “may make an application to the Adjudicating Authority for liquidation order”. The Application which was filed by Respondent No.1 was as noted above not being confine to Section 33, sub-section (3), rather prayer for liquidation was an alternative prayer. The Adjudicating Authority was not prohibited from exercise of its powers as contained in other provisions of the Code referred in the Application. Further it held that the provision of the Code contemplates filing of a complaint by Board or the Central Government or any person authorized by the Government in this behalf. It is true that Adjudicating Authority while exercising jurisdiction under the Code is not required to return any finding of an offence within the meaning of Section 74, sub-section (3). It is a prerogative of the Special Court under Section 236 to try an office and award punishment if any. The Adjudicating Authority at best can draw attention of the Board or the Central Government to facts and features of a particular case to consider as to whether it is an appropriate case for filing a complaint within the meaning of Section 236, sub-section (2). The order passed by the Adjudicating Authority under paragraph 8.1(ii) has to be treated only a direction to the effect that order of NCLT be forwarded to the Board and Central Government to consider as to whether present is a fit case for initiating/ filing any complaint under Section 236, sub-section (2) of the Code. It is necessary to clarify that any observations made by Adjudicating Authority in the impugned order regarding ingredients of offence under Section 74, sub-section (3) are neither binding nor determinative of any issue when the Special Court where a complaint is filed proceed with the trial of offence. The observations made by the Adjudicating Authority has to be read only for the purpose of sending the copy of the order to the Board for consideration for filing a complaint and order of the Adjudicating Authority cannot be treated to any direction to initiate action under Section 74, sub-section (3), which is in the domain of the Board and Central Government as per the statutory Scheme of the Code.

Adjudicating Authority while exercising jurisdiction under the Code is not required to return any finding of an offence within the meaning of Section 74 of IBC – Almas Global Opportunity Fund SPC Vs. CA Kannan Triuvengadam – NCLAT New Delhi Read Post »

The presence of the term ‘and’ in the section 96(1)(a(&(b) should be read as a conjunctive one, which joins clause 1(a) of the section with clause 1(b) and infers that interim moratorium commences against all the debts (including his personal debt) and the creditors of the debtor are barred from initiating any legal proceedings in respect of any debt – Manoj Toshniwal Vs. IFCI Ltd. – NCLT Kolkata Bench

The Adjudicating Authority held that as per under section 96(1)(b) of the Code during the interim moratorium period the creditors of the debtor shall not initiate any legal action or proceedings in respect of any debt. Hence, the proceeding in C.P (IB) No. 319/KB/2021 before this Adjudicating Authority should also be stayed. On a conjoint and careful reading of section 96 of the Code it appears that an interim moratorium shall commence on the date of the application in relation to all the debts and shall cease to have effect on the date of admission of such application and; during the interim moratorium period, all legal actions or proceedings pending in respect of any debt shall remain stayed and creditors shall not initiate any legal action or proceeding in respect of any debt. The presence of the term ‘and’ in the section should be read as a conjunctive one, which joins clause 1(a) of the section with clause 1(b) and infers that interim moratorium commences against all the debts (including his personal debt) and the creditors of the debtor are barred from initiating any legal proceedings in respect of any debt.

The presence of the term ‘and’ in the section 96(1)(a(&(b) should be read as a conjunctive one, which joins clause 1(a) of the section with clause 1(b) and infers that interim moratorium commences against all the debts (including his personal debt) and the creditors of the debtor are barred from initiating any legal proceedings in respect of any debt – Manoj Toshniwal Vs. IFCI Ltd. – NCLT Kolkata Bench Read Post »

Can the Adjudicating Authority entertain an application filed by the Chairman of the Monitoring Committee to give a fresh lease of life to the CIRP in case of Successful Resolution Applicant failed to implement the Resolution Plan – CA Kannan Tiruvengadam, erstwhile RP, Chairman of the Monitoring Committee Vs. Almas Global Opportunity Fund SPC (Successful Resolution Applicant) – NCLT Kolkata Bench

The Adjudicating Authority observed that the Successful Resolution Applicant(SRA) has taken the entire process for a ride, and nothing can really excuse this audacity. The attitude of the SRA really will tick every parameter that can be applied to satisfy the “knowing and wilful contravention” test laid down in section 74(3) of the Code on a reasonable construction. What has really spared the blushes in the present case is the efficiency with which the Chairman of the Monitoring Committee has been running the Corporate Debtor. But this cannot go on for ever. A strong message needs to go to the SRA that the majesty of law needs to be respected at all costs, and that Indian judicial processes cannot be taken for a ride like this. The SRA seems to think that other suitors will not come in to hold the hand of the Corporate Debtor and pull it out of insolvency. Therefore, we fully intend to call the bluff of the SRA that non-extension of time will put the Corporate Debtor and its stakeholders in serious jeopardy.
The AA ordered to forfeit the PBG/Security Money, proceedings u/s 74(3) r.w. Sec. 236 against SRA, the entire period consumed in the CIRP commencing from the first date of issue of Form G inviting Expressions of Interest till the date of passing of orders in this application is excluded etc.

Can the Adjudicating Authority entertain an application filed by the Chairman of the Monitoring Committee to give a fresh lease of life to the CIRP in case of Successful Resolution Applicant failed to implement the Resolution Plan – CA Kannan Tiruvengadam, erstwhile RP, Chairman of the Monitoring Committee Vs. Almas Global Opportunity Fund SPC (Successful Resolution Applicant) – NCLT Kolkata Bench Read Post »

Scroll to Top