04/04/2024

Whether leasehold rights granted to Corporate Debtor by virtue of Registered Lease Deed is an ‘asset’ within the meaning of Section 18(f) of IBC or the said land be excluded from CIRP of Corporate Debtor – Shristi Infrastructure Development Corporation Ltd. Vs. Avishek Gupta, RP Sarga Hotel Pvt. Ltd. and Anr. – NCLAT New Delhi

Hon’ble NCLAT held that the leasehold rights which are owned by the Corporate Debtor consists of right to enjoy the immoveable property by virtue of Registered Lease Deed dated 31.03.2007. Explanation (a) to Section 18 of IBC does not come into way of the Corporate Debtor in enjoying the leasehold rights i.e. enjoyment of the property by virtue of Registered Lease Deed. We, thus, do not find any substance in the submission of the Appellant that the leasehold rights should be excluded from the assets of the corporate debtor. The leasehold rights which was granted to the Corporate Debtor by virtue of Registered Lease Deed dated 31.03.2007 is right to enjoy the property and erect building of the land is a right which is an ‘asset’ within the meaning of Section 18(f) and the said asset is owned by the corporate debtor by virtue of Registered Lease Deed.

Whether leasehold rights granted to Corporate Debtor by virtue of Registered Lease Deed is an ‘asset’ within the meaning of Section 18(f) of IBC or the said land be excluded from CIRP of Corporate Debtor – Shristi Infrastructure Development Corporation Ltd. Vs. Avishek Gupta, RP Sarga Hotel Pvt. Ltd. and Anr. – NCLAT New Delhi Read Post »

Objection(s) to a Scheme of Compromise or Arrangement(s) under Section 230 of the Companies Act, 2013 – The Indian Performing Right Society Ltd. Vs. Novi Digital Entertainment Pvt. Ltd. and Anr. – NCLAT New Delhi

Hon’ble NCLAT held that even a person having pecuniary claim against the Company whether actual or contingent is a Creditor. There is no straight jacket cast iron formula that objections were to be raised, only at the time final hearing not at the time of admission. Raising of an objection, to a Scheme of Compromise or Arrangement means filing of an application before the Tribunal.
It cannot be gainsaid that since the Creditors were given a right, to file Objection, they were equally entitled, to prefer an objection, even without the threshold credit limit, mentioned in Proviso to Section 230(4) of the Companies Act, 2013.

Objection(s) to a Scheme of Compromise or Arrangement(s) under Section 230 of the Companies Act, 2013 – The Indian Performing Right Society Ltd. Vs. Novi Digital Entertainment Pvt. Ltd. and Anr. – NCLAT New Delhi Read Post »

Appellant who has challenged the order on merits in which he has been unsuccessful, cannot be allowed to file an application to recall the order on the same ground on which the appeal was filed by the Appellant – Adisri Commercial Pvt. Ltd. Vs. Reserve Bank of India and Ors. – NCLAT New Delhi

Hon’ble NCLAT held that:

(i) The present is a case where Appellant exercised its right of appeal and failed. Appellant who have challenged the order on merits in which he has been unsuccessful, cannot be allowed to file an application to recall the order on the same ground on which the appeal was filed by the Appellant.
(ii) It is true that the Appeals filed by the Appellant were dismissed due to rejection of the application praying for condonation of 321 days’ delay in re-filing the appeal but in the recall application, the ground to challenge the order on which appeal was founded are now being agitated in the Appeal. As observed above, the recall applications filed by the Appellant are nothing but application to review the judgment on merits which power is not vested with the Adjudicating Authority. The IBC is a statute which prescribes timelines for completion of the proceedings.

Appellant who has challenged the order on merits in which he has been unsuccessful, cannot be allowed to file an application to recall the order on the same ground on which the appeal was filed by the Appellant – Adisri Commercial Pvt. Ltd. Vs. Reserve Bank of India and Ors. – NCLAT New Delhi Read Post »

Can claim of Homebuyer paid in cash to Promotors of Real Estate Company be admitted even no records found in the books of Corporate Debtor about the cash portion paid by Allottee – K. Amutha Vs. RP of Ambojini Property Developers Pvt. Ltd. – NCLT Chennai Bench

The Applicant paid Rs.2,50,000/- through cheque and remaining Rs.17,50,000/- in cash as booking advance. The applicant had submitted claim with the IRP for a sum of Rs.35,20,000/-, however, RP admitted only to the extent of Rs.3,77,178/- and RP stated that there is no entry in the books of the Corporate Debtor that it has received cash payment from the Applicant for the purchase of residential units from the Project.

Can claim of Homebuyer paid in cash to Promotors of Real Estate Company be admitted even no records found in the books of Corporate Debtor about the cash portion paid by Allottee – K. Amutha Vs. RP of Ambojini Property Developers Pvt. Ltd. – NCLT Chennai Bench Read Post »

Para 2.1 “Amount realized” and Para 2.5 “Period for calculation of fee” of IBBI Circular dated 28.09.2023 are struck down as being ultra vires the Liquidation Process Regulations and the IBC | Para 2.2 “other liquidation cost”, Para 2.3 “Amount distributed to stakeholders” and Para 2.4 “Amount of Realisation/Distribution” are upheld – Amit Gupta Vs. Insolvency and Bankruptcy Board of India and Anr. – Bombay High Court

In this landmark judgment, a division bench of the Hon’ble High Court of Bombay interpreted all five paras of the IBBI Circular issued on 28.09.2023.

The Hon’ble Bench also held that the very issuance of a show cause notice has the effect of stopping the IP from taking up new work by reason of Bye-Law 23A in the Model Bye-Laws that are statutorily specified in the Schedule. The Court takes judicial notice of the serious repercussions on IPs when the IBBI issues a show cause notice. The moment disciplinary proceedings are initiated, the IP’s authorisation to conduct his assignments stands suspended. Such a position enabled by subordinate law can have serious implications for IPs. This position may also have the effect making the IBBI reticent to issue show cause notices, considering the debilitating impact it can have on any IP. This situation deserves to be reviewed by the IBBI.

Para 2.1 “Amount realized” and Para 2.5 “Period for calculation of fee” of IBBI Circular dated 28.09.2023 are struck down as being ultra vires the Liquidation Process Regulations and the IBC | Para 2.2 “other liquidation cost”, Para 2.3 “Amount distributed to stakeholders” and Para 2.4 “Amount of Realisation/Distribution” are upheld – Amit Gupta Vs. Insolvency and Bankruptcy Board of India and Anr. – Bombay High Court Read Post »

Whether Winding Up petition can be presented by a Partner without LLP’s support and need not accompany it with statement of affairs and 3/4th resolution? – Hiran Valiyakkil Lal and Ors. Vs. K V Sreeja and Ors. – NCLT Kochi Bench

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Whether Winding Up petition can be presented by a Partner without LLP’s support and need not accompany it with statement of affairs and 3/4th resolution? – Hiran Valiyakkil Lal and Ors. Vs. K V Sreeja and Ors. – NCLT Kochi Bench Read Post »

Under the scheme of IB Code, every dissatisfaction does not partake the character of a legal grievance – Shristi Infrastructure Development Corporation Ltd. Vs. Mr. Avishek Gupta, RP Sarga Hotel Private Ltd. and Ors. – NCLAT New Delhi

It is settled proposition that approval of the Resolution Plan can be interfered with, only when the Resolution Plan violates any of the provisions of Section 30, sub-section (2) of the Code. The grievance, which has been advanced by the Appellant in the present case is essentially with regard to reliefs and concessions granted by the Adjudicating Authority with regard to direction that Corporate Debtor shall continue to be given unfettered and unbridled access to all its assets, including any movable assets located on properties that do not belong to the Corporate Debtor.

Under the scheme of IB Code, every dissatisfaction does not partake the character of a legal grievance – Shristi Infrastructure Development Corporation Ltd. Vs. Mr. Avishek Gupta, RP Sarga Hotel Private Ltd. and Ors. – NCLAT New Delhi Read Post »

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