11/10/2023

The period taken in obtaining the copy of the Order appealed against is to be excluded in calculating the limitation period in filing for any legal proceedings – Prem Kumar Khatri Vs. Wianxx Impex Pvt. Ltd. – NCLAT New Delhi

Hon’ble NCLAT held that:

(i) Sub-Rule (2) of Rule 22 of the NCLAT Rules, 2016, regarding presentation of Appeal provides that every Appeal shall be accompanied by a Certified Copy of the Impugned Order. NCLAT Rules framed under Section 469 of the Companies Act, 2013 also bind the litigants under the IBC.
(ii) The litigant’s efforts to apply for a Certified Copy before filing Appeal cannot be faulted.
(iii) It is clear from the provision of Section 12(2) of Limitation Act, 1963 that the period taken in obtaining the copy of the Order appealed against is to be excluded in calculating the limitation period in filing for any legal proceedings.
(iv) The issue of exclusion of period spent in obtaining Certified Copy was considered by the Hon’ble Supreme Court in the case of Sanket Kumar Agarwal & Anr. Vs. APG Logistics Pvt. Ltd. (2023) ibclaw.in 72 SC.

The period taken in obtaining the copy of the Order appealed against is to be excluded in calculating the limitation period in filing for any legal proceedings – Prem Kumar Khatri Vs. Wianxx Impex Pvt. Ltd. – NCLAT New Delhi Read Post »

Whether limitation for filing an Appeal u/s 61 of IBC shall commence from the date of the order or from the date when contents of the order are known to the aggrieved party i.e. the date when copy of the order is received by an aggrieved party? – Raiyan Hotels and Resorts Pvt. Ltd. Vs. Unrivalled Projects Pvt. Ltd. – NCLAT New Delhi

Hon’ble NCLAT in this important judgment, held that:
(i) Limitation for filing of the Appeal does not commence on the date when Appellant became aware of contents but it shall commence when order was pronounced.
(ii) In the present case, orders passed by the Adjudicating Authority were pronounced in the open Court in the presence of the Counsel for the Appellant. In any view of the matter, they cannot contend that they do not have even constructive knowledge of the order on the said date. Knowledge of the order has to be actual or constructive knowledge and when the orders are pronounced, it can very well be said that the constructive knowledge has to be imputed to the contents of the order to an aggrieved party.
(iii) Legislative scheme takes care of all situations where order was pronounced by a Court, it is expected for the parties to diligently apply for certified copy of the order in event there may be any chance to file an appeal.
(iv) Section 12 of the Limitation Act provides for exclusion of the time taken in obtaining certified copy of an order. After an order is pronounced which pronouncement, it was open to apply for the certified copy of order and time taken in preparing the certified copy of the order is required to be excluded.
NCLAT concluded that the limitation for filing an Appeal under Section 61 shall commence from the date when the order is pronounced and not from the date when aggrieved party or Appellant claims to have knowledge of the contents of the order.

Whether limitation for filing an Appeal u/s 61 of IBC shall commence from the date of the order or from the date when contents of the order are known to the aggrieved party i.e. the date when copy of the order is received by an aggrieved party? – Raiyan Hotels and Resorts Pvt. Ltd. Vs. Unrivalled Projects Pvt. Ltd. – NCLAT New Delhi Read Post »

Treatment of damages of EPFO u/s 14B of EPF & MP Act, 1952 imposed prior to initiation of CIRP and during moratorium u/s 14 of IBC and NCLT’s power to recommend Central Board to waive the damages – Regional Provident Fund Commissioner, Vatwa, Employees Provident Fund Organization Vs. Shri Manish Kumar Bhagat, RP of Perfect Boring Pvt. Ltd. – NCLAT New Delhi

In this important case, Hon’ble NCLAT held that:
(i) The law is well settled that Provident Fund Dues ought to be paid in full.
(ii) The challenge to assessment orders, made by EPFO in exercise of jurisdiction under 1952 Act cannot be subject matter of challenge in the proceedings under IBC.
(iii) It is not necessary in this proceeding to issue any direction for payment of the damages as imposed subsequent to CIRP imposition of moratorium.
(iv) When Insolvency Resolution Process has been initiated against a Corporate Debtor and Resolution plan has been approved under IBC, power of Central Board to reduce or waive the damages can be exercised with regard to the damages imposed under Section 14B.
(v) NCLT/NCLAT in an appropriate case can make a recommendation as contemplated in paragraph 32B of Employees Provident Fund Scheme 1952, to the Central Board to waive the EPFO damages imposed u/s 14B.

Treatment of damages of EPFO u/s 14B of EPF & MP Act, 1952 imposed prior to initiation of CIRP and during moratorium u/s 14 of IBC and NCLT’s power to recommend Central Board to waive the damages – Regional Provident Fund Commissioner, Vatwa, Employees Provident Fund Organization Vs. Shri Manish Kumar Bhagat, RP of Perfect Boring Pvt. Ltd. – NCLAT New Delhi Read Post »

Electricity Supplier cannot deny to grant fresh/restore connection of electricity to Successful Bidder and No liability can be fastened for past dues which has already been dealt as per distribution carried out by liquidator u/s 53 of IBC – Chinar Steel Segments Centre Pvt. Ltd. Vs. Samir Kumar Agarwal, Liquidator of Bhaskar Shrachi Alloys Ltd. & Anr. – NCLAT New Delhi

Hon’ble NCLAT held that:
(i) The essential ingredients for maintainability of application u/s 60(5) are that:- (a) In the Application, any question of law or facts arising out of or in relation to the insolvency resolution; (b) for any question of law or facts arising out of or in relation to the liquidation proceedings
(ii) It is settled law that claim which has been filed and dealt with in the resolution process or in the liquidation proceedings shall extinguish the claim and cannot be re-agitated after the process is completed.
(iii) When claim of the R2 was dealt with in the liquidation proceedings as per Section 53, it is not open for the R2 to renew the said claim and insist for payment of entire dues which has been dealt in the liquidation process.
(iv) Corporate Debtor should have been liquidated and claim of all stakeholders has been dealt with and distributed, the stakeholders cannot be allowed to again re-agitate the claim against an entity which has taken the Corporate Debtor as a going concern.
(v) No liability can be fastened by R2 of its past dues for which he has already filed a claim in the liquidation proceedings which stands satisfied as per distribution carried out by the liquidator under Section 53 of the IBC.
(vi) The R2 cannot insist that unless the arrears of the electricity dues which dues were payable by the Corporate Debtor prior to disconnection are paid by the Appellant only then communication can be issued.

Electricity Supplier cannot deny to grant fresh/restore connection of electricity to Successful Bidder and No liability can be fastened for past dues which has already been dealt as per distribution carried out by liquidator u/s 53 of IBC – Chinar Steel Segments Centre Pvt. Ltd. Vs. Samir Kumar Agarwal, Liquidator of Bhaskar Shrachi Alloys Ltd. & Anr. – NCLAT New Delhi Read Post »

For a pre-existing dispute to be a ground to nullify an application u/s 9 of IBC, the dispute raised must be truly existing at the time of filing a reply to Demand Notice as contemplated by Section 8(2) of IBC or at the time of filing the Section 9 application – Amrop India Pvt. Ltd. Vs. The Hi-Tech Gears Ltd. – NCLAT New Delhi

Hon’ble NCLAT held that:
(i) From a plain reading of the Section 9 of IBC, it is clear that the existence of dispute and its communication to the Operational Creditor is therefore statutorily provided for in Section 8.

(ii) It is a well settled proposition that for a pre-existing dispute to be a ground to nullify an application under Section 9, the dispute raised must be truly existing at the time of filing a reply to notice of demand as contemplated by Section 8(2) of IBC or at the time of filing the Section 9 application.

(iii) It is well settled that in Section 9 proceeding, there is no need to enter into final adjudication with regard to existence of dispute between the parties regarding operational debt.

For a pre-existing dispute to be a ground to nullify an application u/s 9 of IBC, the dispute raised must be truly existing at the time of filing a reply to Demand Notice as contemplated by Section 8(2) of IBC or at the time of filing the Section 9 application – Amrop India Pvt. Ltd. Vs. The Hi-Tech Gears Ltd. – NCLAT New Delhi Read Post »

Scroll to Top