14/07/2022

Whether an investment made by the Director of the Company falls under the definition of Operational Debt? – Akshat Pandey Vs. Avighna Films Pvt. Ltd. – NCLT Kolkata Bench

The Adjudicating Authority held in this instant matter the Petitioner, who is also one of the director of the Corporate Debtor, invested money in the Corporate Debtor for production of a movie. In light of the above facts and circumstances we are of the view that an Investment made by the director of the Company does not fall under the purview of an Operational Debt under the Code.

Whether an investment made by the Director of the Company falls under the definition of Operational Debt? – Akshat Pandey Vs. Avighna Films Pvt. Ltd. – NCLT Kolkata Bench Read Post »

Kuldeep Verma, the Liquidator of Eastern Gases Ltd. Vs. DBS Bank Ltd. – NCLT Kolkata Bench

According to the applicant as contended in paragraph 18, it could only be till the commencement of liquidation whereas as per the respondent which could raise its claims in the form of interest etc. till actual realization. For analysing submission on behalf of the Bank and to decide the issue in hand, it is relevant to refer to Chapter IV Regulation 12 of the Insolvency and Bankruptcy Board of India (Liquidation Process)Regulation 2016. A plain reading of even the previous regulation, prior to 25-07-2019,makes clear that it is the date of commencement of liquidation and 30 days thereafter which is time limit and stage for submission of the claims by stakeholders. Admittedly, respondent submitted his claims in form D. Now we see from Form D (Proof of claims of Financial Creditors) or Form C (Proof of claim of operation creditor except workmen and employees), part of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016.

Kuldeep Verma, the Liquidator of Eastern Gases Ltd. Vs. DBS Bank Ltd. – NCLT Kolkata Bench Read Post »

NCLT Rule 37(3) cannot be read to mean that on non-filing of reply by the Corporate Debtor before the date of hearing, he can neither ask for any time, nor can be granted any time by the Adjudicating Authority to file the reply – Mr. Ashok Tiwari Vs. DBS Bank India Ltd. (DBIL) – NCLAT New Delhi

A notice was issued by the Adjudicating Authority to the Corporate Debtor in Section 7 Application filed by the Financial Creditor on 11.02.2022, which notice was served on the Corporate Debtor(Appellant herein) on 07.03.2022. 29.03.2022, was the first date of hearing before the Adjudicating Authority, when the Corporate Debtor was required to appear. On the first date of hearing, the Corporate Debtor appeared through Counsel and made a request for time to file a reply, which request was turned down by the impugned order and Adjudicating Authority proceeded to admit the Application by order of the same date, that is, 29.03.2022. NCLAT held that sub-rule (3) of Rule 37 does not provide for any consequence in event of non-filing of reply before the next date of hearing. Rule 37 is procedural Rule and procedural Rules are there to assist the adjudication of the dispute by Adjudicating Authority. Rule 37, sub-rule (3) cannot be read to mean that on non-filing of reply by the Corporate Debtor before the date of hearing, he can neither ask for any time, nor can be granted any time by the Adjudicating Authority to file the reply. On non-appearance of Corporate Debtor on the next date of hearing, Adjudicating Authority is not to mechanically proceed to dispose of the Application ex-parte. When a Corporate Debtor, who does not appear on the date fixed, is entitled to a reasonable opportunity before proceeding ex-parte, a Corporate Debtor who appeared on the first date of hearing cannot be put to in worse position than a Corporate Debtor who does not appear. The NCLT Rules, 2016 namely – Rule 34 as well as Rule 51 entitles the Tribunal to regulate its own procedure in accordance with the rules of natural justice.

NCLT Rule 37(3) cannot be read to mean that on non-filing of reply by the Corporate Debtor before the date of hearing, he can neither ask for any time, nor can be granted any time by the Adjudicating Authority to file the reply – Mr. Ashok Tiwari Vs. DBS Bank India Ltd. (DBIL) – NCLAT New Delhi Read Post »

Application is treated to be filed when it is filed in the Office of the Registry of NCLT at the filing counter and in case filed in electronic form, the filing is complete as soon as it is registered electronically – Krishan Kumar Basia Vs. State Bank of India – NCLAT New Delhi

The State Bank of India filed an Application under Section 95(1) on 01.10.2021, which Application came to be subsequently numbered on 18.02.2022. The Appellant Krishan Kumar Basia, the Guarantor of M/s. Gee Ispat Pvt. Ltd., Corporate Debtor also filed an Application under Section 94 on 25.10.2021, which was registered/numbered on 22.12.2021. The Application under Section 95 by State Bank of India was filed earlier in point of time, but the Application filed by Personal Guarantor was registered earlier in point of time. The Guarantor submitted that the petition under Section 94 filed by the Personal Guarantor is early in point of time and from which date the Moratorium under Section 96 shall kick in, prohibiting consideration of any Application by State Bank of India under Section 95.
NCLAT held that it is clear from the Rule 2(14) along with Rule 23 of NCLT Rules that Application is treated to be filed when it is filed in the Office of the Registry at the filing counter. Thus, filing on behalf of the Appellant/ Applicant is complete as soon as the Application is presented at the filing counter of the Office of the Registry. When as per Rule 10, sub-rule (2), when an electronic facility is available and an Application is filed in electronic form, the filing is complete as soon as it is registered electronically. Interim Moratorium has serious consequences, which consequences flow immediately after filing of the Application. Adjudicating Authority after due consideration has taken correct view of the matter in holding that filing of the Application under Section 95 by the State Bank of India is on a date when Application was filed and allotted number electronically and the submission of the Appellant that date of filing of the Application shall be the date when Application is numbered has rightly been rejected.

Application is treated to be filed when it is filed in the Office of the Registry of NCLT at the filing counter and in case filed in electronic form, the filing is complete as soon as it is registered electronically – Krishan Kumar Basia Vs. State Bank of India – NCLAT New Delhi Read Post »

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