09/07/2021

After CIRP was initiated, former Promoter/Director cannot suppress from IRP/RP and apply for MSME Certificate and tide over ineligibility under Section 29A of the Code – Digambar Anandrao Pingle Shareholder of M/s Pingle Builders Pvt. Ltd. Vs. Shrikant Madanlal Zawar RP of M/s Pingle Builders Pvt. Ltd. – NCLAT New Delhi

The appeal is basically against passing of orders on the application of the Resolution Professional directing liquidation and not accepting the plan of the Appellant which he had submitted as the Resolution Applicant. The Appellant claimed that the Corporate Debtor was an MSME and that he could file a Resolution Plan.
NCLAT held that the Appellant has obtained an MSME Certificate for which application had been made on 05.03.2019. Clearly, CIRP with regard to the Corporate Debtor started on 19.07.2018 and on 05.03.2019 the Corporate Debtor was under the management of IRP/RP. The Appellant has not shown that the application for MSME was made through the IRP/RP. The Learned Counsel for Respondent No. 5 is claiming that there was no consent of the IRP/RP. When the Corporate Debtor was not under the management of the Appellant, such unauthorized application could not have been made and the claim of the Appellant that the Corporate Debtor is MSME would require to be ignored. Appellant cannot take advantage of his wrongful act. Keeping in view Judgment in the matter of ‘Arun Kumar Jagatramka vs Jindal Steel and Power Ltd. (2021) ibclaw.in 46 SC’, back door entries cannot be allowed. After CIRP was initiated former Promoter/ Director cannot suppress from IRP/RP and apply for MSME Certificate and tide over ineligibility under Section 29A of the IBC.

After CIRP was initiated, former Promoter/Director cannot suppress from IRP/RP and apply for MSME Certificate and tide over ineligibility under Section 29A of the Code – Digambar Anandrao Pingle Shareholder of M/s Pingle Builders Pvt. Ltd. Vs. Shrikant Madanlal Zawar RP of M/s Pingle Builders Pvt. Ltd. – NCLAT New Delhi Read Post »

In absence of any deed or the other documents, the assets found in the temple which is within the premises of the corporate debtor to be regarded as the assets of the corporate debtor and therefore to form part of the liquidation estate of the corporate debtor – M/s LML Limited (In Liquidation)  Through Liquidator, Arun Gupta – NCLT Allahabad Bench

Liquidator seeking direction for donating the temple assets of the Almighty Deity(“Temple Assets”) situated within the premises of M/s LML Limited, which is under Liquidation. Adjudicating Authority observed that though the valuable objects found in temple are not recorded as “assets” in the balance sheet of the corporate debtor but as the temple is in the factory premises of the corporate debtor and there is nothing on record to show that the temple does not belong to corporate debtor or any interest has been created in favour of third party by the corporate debtor as there is no deed of dedication or any manager appointed to manage the assets of temples. Thus, in absence of any deed or the other documents, the assets found in the temple which is within the premises of the corporate debtor to be regarded as the assets of the corporate debtor and therefore to form part of the liquidation estate of the corporate debtor.

In absence of any deed or the other documents, the assets found in the temple which is within the premises of the corporate debtor to be regarded as the assets of the corporate debtor and therefore to form part of the liquidation estate of the corporate debtor – M/s LML Limited (In Liquidation)  Through Liquidator, Arun Gupta – NCLT Allahabad Bench Read Post »

Section 60 of the IBC speaks for itself that the parallel proceedings against borrower and guarantor are maintainable – Emerald Realtors Pvt. Ltd. (Shareholder of Sapphire Land Development Pvt. Ltd.) Vs. Suraksha Asset Reconstruction Ltd. – NCLAT New Delhi

The issue involved in this Appeal is with regard to parallel proceeding filed against the Principal Borrower when already CIRP had been initiated against the Corporate Guarantor and the claim of the Financial Creditor had already been accepted in the CIRP for the whole amount.
NCLAT having gone through the judgment in the matter of “State Bank of India v. Athena Energy Ventures Pvt. Ltd. (2020) ibclaw.in 344 NCLAT” which distinguished judgment in the matter of “Dr. Vishnu Kumar Agarwal v. M/s. Piramal Enterprises Ltd. [2019] ibclaw.in 16 NCLAT” so as to not follow the same, held that it must be said that the Appeal does not have any substance with regard to the legal issue. Judgment in the matter of Athena Energy was not per incuriam. The judgment interpreted the law consciously not following M/s. Piramal Enterprises Ltd.. In fact, one need not look at both the judgments and simply reproduce Section 60(2) of the Code as it now exists.

Section 60 of the IBC speaks for itself that the parallel proceedings against borrower and guarantor are maintainable – Emerald Realtors Pvt. Ltd. (Shareholder of Sapphire Land Development Pvt. Ltd.) Vs. Suraksha Asset Reconstruction Ltd. – NCLAT New Delhi Read Post »

Difference of 15.62% between the two Registered Valuers in regard to the Valuation made is not a substantial/material one so as to warrant an appointment of a third Valuer as per CIRP Regulation 35(1)(a)(b) and (c) – Dr. Vijay Radhakrishnan Vs. Bijoy P Pulipra, Resolution Professional PVS Memorial Hospital Pvt. Ltd. – NCLAT Chennai

In the instant case, there is a variance of 15.62% in the Valuation and in this regard NCLAT points out that the value made by the two registered Valuers are only estimates and certainly there will be difference in each Valuers Report’s and to put it precisely, the difference of 15.92% as regards the Valuation of Land in the two registered Valuers Reports can be termed as minimal, in view of the fact that the Fair Value and Liquidation Value were made, taking into account variety of considerations.
In so far as the plea of the Appellant that third Valuer was not appointed for reasons best known to the Resolution Professional when there is a difference in the valuation made by the two registered Valuers, NCLAT at the risk of repetition points out that the difference of 15.62% between the two registered Valuers in regard to the Valuation made is not a substantial/material one so as to warrant an appointment of a third Valuer as per CIRP Regulation 35(1)(a)(b) and (c). On this count also, the plea of the Appellant for appointment of third Valuer for the purpose of Valuation is negative by this Tribunal.

Difference of 15.62% between the two Registered Valuers in regard to the Valuation made is not a substantial/material one so as to warrant an appointment of a third Valuer as per CIRP Regulation 35(1)(a)(b) and (c) – Dr. Vijay Radhakrishnan Vs. Bijoy P Pulipra, Resolution Professional PVS Memorial Hospital Pvt. Ltd. – NCLAT Chennai Read Post »

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