12/07/2022

When the Corporate Debtor is a Guarantor and when the Corporate Guarantee has never been invoked prior to the commencement of the CIRP, as on the date of filing of the Claims, the Right to Payment has not accrued – IDBI Trusteeship Services Ltd. Vs. Mr. Abhinav Mukherji – NCLAT New Delhi

The main issues which arise in these Appeals are:

(a) Whether the Adjudicating Authority was right in applying the ratio of Anuj Jain (IRP of Jaypee Infratech Ltd.) [2020] ibclaw.in 06 SC to the facts of the attendant case and holding that the Appellants are not Financial Creditors in view of the fact that there was no direct disbursal of amount to the Corporate Debtor/Guarantor.

(b) Whether an individual Homebuyer has the locus to challenge the admission of a Claim of another Creditor/Financial Creditor. Whether the filing of the said Application had to be done through the Authorized Representative (AR) only.

(c) Whether the Appellant can make a Claim on the basis of the Guarantee Deed which was never invoked pre-commencement of the CIRP, and remained uninvoked even as on the date of filing of the Claim, thereby meaning that Right to Payment has not yet accrued.

(d) Whether the Appellants are Related Parties of the Corporate Debtor. Whether the Appellants were in a position to control the affairs of the Corporate Debtor, to fall within the ambit of the definition of Related Party as defined under Section 5(24) of the Code.

When the Corporate Debtor is a Guarantor and when the Corporate Guarantee has never been invoked prior to the commencement of the CIRP, as on the date of filing of the Claims, the Right to Payment has not accrued – IDBI Trusteeship Services Ltd. Vs. Mr. Abhinav Mukherji – NCLAT New Delhi Read Post »

NCLT directs a Corporate Debtor to make a deposit of the approximate conversion of USD in Indian Rupees and place the same with the Registry, within 60 days from this order – Hytera Communications Corporation Ltd. Vs. Simoco Telecommunications (South Asia) Ltd. – NCLT Kolkata Bench

Login with GoogleOR Username Password Remember Me     Forgot Password In case you’ve already logged in, click here

NCLT directs a Corporate Debtor to make a deposit of the approximate conversion of USD in Indian Rupees and place the same with the Registry, within 60 days from this order – Hytera Communications Corporation Ltd. Vs. Simoco Telecommunications (South Asia) Ltd. – NCLT Kolkata Bench Read Post »

The OTS proposal falls within the ambit of acknowledgement of debt as defined under Section 18 of the Limitation Act, 1963- Tejas Khandhar Vs. Bank of Baroda – NCLAT New Delhi

Login with GoogleOR Username Password Remember Me     Forgot Password In case you’ve already logged in, click here

The OTS proposal falls within the ambit of acknowledgement of debt as defined under Section 18 of the Limitation Act, 1963- Tejas Khandhar Vs. Bank of Baroda – NCLAT New Delhi Read Post »

Section 9(5)(i) vs. Section 7(5)(a) of IBC: The Adjudicating Authority may in its discretion not admit the application of a Financial Creditor filed u/s 7, however, Section 9(5)(i) is mandatory, almost identical provision relating to the initiation of CIRP by an Operational Creditor – Vidarbha Industries Power Ltd. Vs. Axis Bank Ltd. – Supreme Court

In this landmark judgment, Hon’ble Supreme Court clarifies various issues in filing of CIRP u/s 7 and 9. The Hon’ble Court held that If Section 7(5)(a) of the IBC is construed literally the provision must be held to confer a discretion on the Adjudicating Authority (NCLT). The fact that Legislature used ‘may’ in Section 7(5)(a) of the IBC but a different word, that is, ‘shall’ in the otherwise almost identical provision of Section 9(5) shows that ‘may’ and ‘shall’ in the two provisions are intended to convey a different meaning. It is apparent that Legislature intended Section 9(5) of the IBC to be mandatory and Section 7(5)(a) of the IBC to be discretionary. The IBC does not countenance dishonesty or deliberate failure to repay the dues of an operational creditor. Further, it held that the Adjudicating Authority may in its discretion not admit the application of a Financial Creditor. It is certainly not the object of the IBC to penalize solvent companies, temporarily defaulting in repayment of its financial debts, by initiation of CIRP. There is no fixed time limit within which an application under Section 7 of the IBC has to be admitted.

Section 9(5)(i) vs. Section 7(5)(a) of IBC: The Adjudicating Authority may in its discretion not admit the application of a Financial Creditor filed u/s 7, however, Section 9(5)(i) is mandatory, almost identical provision relating to the initiation of CIRP by an Operational Creditor – Vidarbha Industries Power Ltd. Vs. Axis Bank Ltd. – Supreme Court Read Post »

Scroll to Top