07/04/2021

It is not for the Adjudicating Authority to ascertain, investigate, or fix the exact amount of liability at the admission stage, after the admission of the petition, it is the duty of the Resolution Professional to collate the claims and ascertain the liability – Mr Joseph Jayananda Vs. Navalmar (UK) Ltd – NCLAT New Delhi

/ 31 minutes of reading

It is held that as per the General Agency Agreement between the Operational Creditor and the Corporate Debtor, the Corporate Debtor acted as an agent of the former in India and collected various payments due to the Operational Creditor’s customers remitted the same to the Operational Creditor. The Operational Creditor has annexed various invoices and debit notes with the Petition as evidence of the claim amount. Since the Corporate Debtor was an agent and service provider of the Operational Creditor, the amounts due under the transactions would fall within the ambit of Operational Debt as defined under Section 5 (21) of the Insolvency and Bankruptcy Code 2016. NCLAT also held that the Corporate Debtor’s main contention is that the amounts paid by the Operational Creditor and its financial statements do not match. It is not for the Adjudicating Authority to ascertain, investigate, or fix the exact amount of liability at the admission stage. After the admission of the petition, it is the duty of the Resolution Professional to collate the claims and ascertain the liability.

It is not for the Adjudicating Authority to ascertain, investigate, or fix the exact amount of liability at the admission stage, after the admission of the petition, it is the duty of the Resolution Professional to collate the claims and ascertain the liability – Mr Joseph Jayananda Vs. Navalmar (UK) Ltd – NCLAT New Delhi Read Post »

When a Creditor was part of COC and had also filed claim, it was not justified or appropriate to present the post dated cheques before Bank – Rakesh Kapoor (Sole Proprietor of Hansa Electricals) Vs. Mr. Ashok Kumar Juneja – NCLAT New Delhi

/ 7 minutes of reading

The Appellant claims to have been Operational Creditor. As there was no Financial Creditor in the COC (Committee of Creditors), the Appellant was also member of COC of the Corporate Debtor. The Appellant had in his possession post-dated cheques issued by the erstwhile Directors of the Corporate Debtor and the Corporate Debtor is under Liquidation process. Two cheques were presented by Appellant Andhra Bank. The cheques were of the value of Rs.10 Lakhs each (total Rs.20 Lakhs). The cheques came to be passed and the Appellant received the money. The Bank claimed before the Adjudicating Authority that the cheques were honoured by mistake. NCLT directed to Andhra Bank to refund an amount of Rs. 20 Lakhs along with interest @ 8% per annum and deposit it to the Account of the Corporate Debtor.

Liquidator submits that the action of the Appellant who was participating in the CIRP in COC and had also filed claim in liquidation proceedings on the basis of the post-dated cheques, cannot be justified. Only because he had in possession post-dated cheques, he could not have presented the cheques to the bank when liquidation proceedings were going on. It is argued that Appellant acted in violation of Sections 43 and 53 of the IBC.

NCLAT holds that considering the facts of the matter, it appears to us that the Order passed cannot be faulted with. When the Appellant was part of COC and had also filed claim, it was not justified or appropriate on the part of the Appellant to present the cheques. Respondent No.2 claims to have passed the cheques by mistake. The Appellant cannot take benefit of the mistake of the Andhra Bank.

When a Creditor was part of COC and had also filed claim, it was not justified or appropriate to present the post dated cheques before Bank – Rakesh Kapoor (Sole Proprietor of Hansa Electricals) Vs. Mr. Ashok Kumar Juneja – NCLAT New Delhi Read Post »

Financial Creditor desires to file an Application Initiating Insolvency Resolution Process against the Guarantors, the Financial Creditor needs to file proper application under Section 95 of IBC 2016 – Bank of Baroda (Erstwhile Dena Bank) Vs. Mr Tshering Pintso Bhutia, Guarantor – NCLT Guwahati Bench

/ 1 minute of reading

The Financial Creditor had filed the petition under Section 7 of IBC against the Corporate Debtor and Corporate Debtor is in Liquidation. The Liquidation proceedings is going on. Now the Financial Creditor has filed this I.A. to proceed against the Guarantors to the Corporate Debtor in Liquidation. Hence it is essential to bring here the provisions of Section 95 of IBC Part III, Insolvency Resolution and Bankruptcy for Individuals and Partnership Firms for disposal of this I.A. It is clear that if the FC desires to file an Application Initiating Insolvency Resolution Process against the Guarantors, the FC needs to file proper application under Section 95 of IBC 2016 before this Bench complying the related provisions including 14 days’ notice, servicing of the Application to the Debtor etc.

Financial Creditor desires to file an Application Initiating Insolvency Resolution Process against the Guarantors, the Financial Creditor needs to file proper application under Section 95 of IBC 2016 – Bank of Baroda (Erstwhile Dena Bank) Vs. Mr Tshering Pintso Bhutia, Guarantor – NCLT Guwahati Bench Read Post »

Application u/s 9 has been rejected in terms of Section 8(1) of the IBC, the Petitioner has neither enclosed the invoices nor sent the notice in Form-4 – Daval Industries Private Limited Vs. Wholly Joy Products Pvt. Ltd. – NCLT New Delhi Bench Court-II

/ 2 minutes of reading

The Adjudicating Authority noticed that in this case, the claim of the applicant is based upon the invoices but it appears from the demand notice that the applicant has not enclosed the invoices rather in column VII of Form 3, the petitioner has mentioned that “true copy of dishonoured cheques along with the corresponding bank memos are annexed herewith collectively as Annexure-A’ and no other document is enclosed. This means that in terms of Section 8(1) of the IBC, the Petitioner has neither enclosed the invoices nor sent the notice in Form-4. Rather it sent the demand notice in Form-3. Therefore, in the light of the decision in Neeraj Jain Director of M/s Flipkart India Pvt. Ltd. Vs. Cloudwalker Streaming Technologies Pvt. Ltd. [2020] ibclaw.in 221 NCLAT, the demand notice delivered in the present case is not a valid one in terms of Section 8(1) of IBC, 2016 read with Rule 5(1)(b) of the the AAA Rules, 2016. Hence in our view, the valid demand notice has not been delivered by the Petitioner before filing the present application under Section 9 of the IBC.

Application u/s 9 has been rejected in terms of Section 8(1) of the IBC, the Petitioner has neither enclosed the invoices nor sent the notice in Form-4 – Daval Industries Private Limited Vs. Wholly Joy Products Pvt. Ltd. – NCLT New Delhi Bench Court-II Read Post »

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