10/11/2023

The filling of winding up petition and also the application for Mediation under section 12A of the Commercial Court Act, 2015 by Operational Creditor are reasons enough to belief and prove that there is a pre-existing dispute between the parties – Sunila Chhabra Vs. Leighton India Contractors Pvt. Ltd. – NCLT Mumbai Bench

NCLT Mumbai Bench held that the filling of winding up petition and also the application for mediation under section 12A of the Commercial Court Act, 2015 by Operational Creditor are reasons enough to belief and prove that there is a pre-existing dispute between the parties. Thus, on this basis also, the present petition is not maintainable. In addition, the stated debt has also not been admitted by the Corporate Debtor, rather the Corporate Debtor has put a counter claim against the Operational Creditor vide letter dated 13.10.2011. Thus, there is no crystalized admitted debt in the present case.

The filling of winding up petition and also the application for Mediation under section 12A of the Commercial Court Act, 2015 by Operational Creditor are reasons enough to belief and prove that there is a pre-existing dispute between the parties – Sunila Chhabra Vs. Leighton India Contractors Pvt. Ltd. – NCLT Mumbai Bench Read Post »

Issue of Trademarks assignment during CIRP of Shakti Bhog Foods Ltd., Corporate Debtor – Shakti Bhog Foods Ltd. & Anr Vs. Kumar Food Industries Ltd. & Ors. – Delhi High Court

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Issue of Trademarks assignment during CIRP of Shakti Bhog Foods Ltd., Corporate Debtor – Shakti Bhog Foods Ltd. & Anr Vs. Kumar Food Industries Ltd. & Ors. – Delhi High Court Read Post »

Whether Successful Auction Purchaser can prosecute the avoidance application after approval of the acquisition plan – Kunwer Sachdev Vs. Su-Kam Power Systems Ltd. – NCLAT New Delhi

Hon’ble NCLAT held that:
(i) It is the Resolution Professional or Liquidator who are empowered to come to opinion and file an application for avoidance of the transaction.
(ii) Any assets or their value recovered through proceedings for avoidance of transactions shall form the liquidation estate. There can be no dispute to this legal position that proceeds of the avoidance application are part of the liquidation estate.
(iii) The Regulation 44A deals with treatment of transaction avoidance which itself contemplates that there can be a position regarding prosecution of avoidance application even after resolution or closure of liquidation process and the manner in which the proceeds, if any, from such proceedings shall be distributed.
(iv) In the present case it is not a case that avoidance application has been filed by the Successful Auction Purchaser, The Insolvency Law Committee Report does not in any manner help the Appellant.
(v) The issue as to whether the Successful Auction Purchaser can prosecute the avoidance application in place of Resolution Professional by substituting its name was not subject matter of the issue in the aforesaid case of 63 Moons Technologies Ltd. (2022) ibclaw.in 95 NCLAT hence we are of the view that on the ground that civil appeal is pending before the Hon’ble Supreme Court, hearing of the matter need not be deferred.

Whether Successful Auction Purchaser can prosecute the avoidance application after approval of the acquisition plan – Kunwer Sachdev Vs. Su-Kam Power Systems Ltd. – NCLAT New Delhi Read Post »

When amount advanced cannot be related to Section 42 of the Companies Act, 2013, the applicability of Section 42(6) cannot be pressed, the amount advances cannot be treated Share Applicating Money, Rule 2(vii) of the Companies (Acceptance of Deposit) Rules 2014 and its explanation are not attracted and cannot form the basis of Financial Debt under IBC – Rahul Maroo Vs. Bruck Pharma Pvt. Ltd. – NCLAT New Delhi

Hon’ble NCLAT held that:
(i) When the amount advanced cannot be related to Section 42, the applicability of Section 42(6) cannot be pressed as is being sought by the Appellant in the present case. Similarly, Rule 2(vii) of the Companies (Acceptance of Deposit) Rules 2014 and its explanation are not attracted. Rule 2(vii) contemplates any amount received and held pursuant to an offer made in accordance with the provisions of the Companies Act, 2013. No proof of any offer made in accordance with the provisions of the Companies Act, 2013 by the Company having brought on record Rules itself cannot be held applicable.
(ii) There is nothing on the record to indicate that the company at any time has issued a private placement offer. Appellant has not brought any material on record to indicate that company at any time has issued private placement offer and in pursuance of which Appellant has made any application of allotment of shares.

When amount advanced cannot be related to Section 42 of the Companies Act, 2013, the applicability of Section 42(6) cannot be pressed, the amount advances cannot be treated Share Applicating Money, Rule 2(vii) of the Companies (Acceptance of Deposit) Rules 2014 and its explanation are not attracted and cannot form the basis of Financial Debt under IBC – Rahul Maroo Vs. Bruck Pharma Pvt. Ltd. – NCLAT New Delhi Read Post »

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