16/07/2024

Failure to serve Demand Notice under Section 8 of IBC is not a mere technical or curable defect but a mandatory precondition for filing Application under Section 9 of the Code for initiating CIRP against Corporate Debtor – Quess Corp Ltd. Vs. Wardwiz (India) Solutions Pvt. Ltd. – NCLT Mumbai Bench

Hon’ble NCLT Mumbai held that:

(i) Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 mandates that the statutory Demand Notice must be served on the Corporate Debtor at its registered office by hand or RPAD or Speed Post. In this case, it is seen that the Demand Notice was not sent to the registered address of the Corporate Debtor as per the Master Data of the Corporate Debtor available on the MCA website.
(ii) In this connection, it would not be out of place to refer to the judgment of Hon’ble NCLAT in the matter of Shailendra Sharma Vs. Ercon Composites (2021) ibclaw.in 14 NCLAT wherein it has been held that the service of Demand Notice to the corporate debtor as per Section 8 is a mandatory requirement.
(iii) Thus, it is settled that failure to serve the Demand Notice under Section 8 of the Code is not a mere technical or curable defect but a mandatory precondition for filing Application under Section 9 of the Code for initiating CIRP against the Corporate Debtor.

Failure to serve Demand Notice under Section 8 of IBC is not a mere technical or curable defect but a mandatory precondition for filing Application under Section 9 of the Code for initiating CIRP against Corporate Debtor – Quess Corp Ltd. Vs. Wardwiz (India) Solutions Pvt. Ltd. – NCLT Mumbai Bench Read Post »

At the stage of the amendment, the Court should not go into correctness or falsity of the case in the amendment – Rolta Pvt. Ltd. Vs. Streamcast Education Services Pvt. Ltd. – NCLT Mumbai Bench

Hon’ble NCLT Mumbai Bench allows amendments in Section 7 of IBC holding that the admissibility of the Petition under the provisions of the Insolvency and Bankruptcy Code, 2016 shall be determined at the final stage of hearing. Similarly, the point as to whether the Petition is barred under Section 10A of the Insolvency and Bankruptcy Code, 2016 would be decided at the time of admission on the basis of material placed on record. That being so, at this stage, the Applicant cannot be precluded from pleading certain new facts. However, the veracity of such newly pleaded fact will be adjudged at the appropriate stage. Accordingly, we are of the view that the proposed amendment will not cause any prejudice to the Respondent.

At the stage of the amendment, the Court should not go into correctness or falsity of the case in the amendment – Rolta Pvt. Ltd. Vs. Streamcast Education Services Pvt. Ltd. – NCLT Mumbai Bench Read Post »

Can Financial Creditor change date of default through rejoinder affidavit in the application filed under Section 95 of IBC against Personal Guarantor? – Sanjeeb Ranjeet Das Vs. Punjab National Bank and Anr. – NCLAT New Delhi

Hon’ble NCLAT has dismissed an appeal filed by Personal Guarantor on change of default by PNB in the application filed under Section 95 of IBC.

The Hon’ble Appellate Tribunal held that it is well settled that Financial Creditor is permitted to supplement the Application by filing the additional documents.

The Bench also observed that the Adjudicating Authority has also granted time to the Personal Guarantor to file reply to the amended petition and to oppose the new date of default to be inserted by the Creditor.

Can Financial Creditor change date of default through rejoinder affidavit in the application filed under Section 95 of IBC against Personal Guarantor? – Sanjeeb Ranjeet Das Vs. Punjab National Bank and Anr. – NCLAT New Delhi Read Post »

No exception can be taken to the action of the Liquidator in cancelling the sale and forfeiting the amount deposited by Successful Auction Bidder having failed to deposit the balance amount – BRS Refineries Vs. Mr. Supriyo Kumar Chaudhari, Liquidator, JVL Agro Industries Ltd. – NCLAT New Delhi

Hon’ble NCLAT affirmed the decision of NCLT Allahabad Bench holding that when the Process Document itself contemplate issuance of Sale Certificate subject to order passed by NCLT, all bidders were clearly informed about the said contingency. When the bidder in any auction participate it is subject to all terms and conditions as provided in the E-auction Process Information Document and all bidders are binding to all terms and conditions of the Process Document.

No exception can be taken to the action of the Liquidator in cancelling the sale and forfeiting the amount deposited by Successful Auction Bidder having failed to deposit the balance amount – BRS Refineries Vs. Mr. Supriyo Kumar Chaudhari, Liquidator, JVL Agro Industries Ltd. – NCLAT New Delhi Read Post »

Byju’s Insolvency Case: Granting of the License for Advertisement and Promotional rights itself amounts to providing of services and falls within the definition of Operational Debt within the meaning of Section 5(21) of the IBC – The Board of Control for Cricket In India (BCCI) Vs. Think & Learn Pvt. Ltd. – NCLT Bengaluru Bench

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Byju’s Insolvency Case: Granting of the License for Advertisement and Promotional rights itself amounts to providing of services and falls within the definition of Operational Debt within the meaning of Section 5(21) of the IBC – The Board of Control for Cricket In India (BCCI) Vs. Think & Learn Pvt. Ltd. – NCLT Bengaluru Bench Read Post »

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