17/12/2024

NCLT is the only Adjudicating Authority in respect of Personal Guarantors to a Corporate Debtor where a CIRP or liquidation proceeding initiated against a Corporate Debtor is either pending before a NCLT or is already concluded | In absence of an “initiated” or “pending” or “concluded” CIRP against a Principal Borrower, an application u/s 95(1) against a Personal Guarantor will not be maintainable before the NCLT | The Recovery Proceedings will lie only before the DRT having territorial jurisdiction – UCO Bank Vs. Mr. Subrata Das – NCLT Kolkata Bench

/ 12 minutes of reading

In this important judgment, the Hon’ble NCLT Kolkata Bench concludes that:

a. In terms of Section 60(1) and (2) read with Section 179 of the I&B Code, NCLT is the only Adjudicating Authority in respect of Personal Guarantors to a Corporate Debtor where a CIRP or liquidation proceeding initiated against a corporate debtor is either pending before a NCLT or is already concluded.
b. In absence of an “initiated” or “pending” or “concluded” CIRP against a Principal Borrower, an application under Section 95(1) to initiate Insolvency Resolution Process against a Personal Guarantor to a Corporate Debtor will not be maintainable before the NCLT. The Recovery Proceedings will lie only before the Debt Recovery Tribunal (DRT) having territorial jurisdiction.

NCLT is the only Adjudicating Authority in respect of Personal Guarantors to a Corporate Debtor where a CIRP or liquidation proceeding initiated against a Corporate Debtor is either pending before a NCLT or is already concluded | In absence of an “initiated” or “pending” or “concluded” CIRP against a Principal Borrower, an application u/s 95(1) against a Personal Guarantor will not be maintainable before the NCLT | The Recovery Proceedings will lie only before the DRT having territorial jurisdiction – UCO Bank Vs. Mr. Subrata Das – NCLT Kolkata Bench Read Post »

IBC and Industrial Dispute Act, 1947 operate in different spheres and the overlap between the same has not resulted in any conflict between the two, the question of one overriding the other does not arise – Suresh Narayan Singh Vs. Anish Agarwal, RP of Tayo Rolls Ltd. – NCLT Kolkata Bench

/ 3 minutes of reading

The Hon’ble NCLT Kolkata Bench held that both the statutes operate in different spheres and the overlap between the same has not resulted in any conflict between the two, the question of one overriding the other does not arise. The RP via his actions has in no way interfered with any remedy that may be available to the workmen under the Industrial Disputes Act, 1947, for which they may approach the appropriate Authority.

IBC and Industrial Dispute Act, 1947 operate in different spheres and the overlap between the same has not resulted in any conflict between the two, the question of one overriding the other does not arise – Suresh Narayan Singh Vs. Anish Agarwal, RP of Tayo Rolls Ltd. – NCLT Kolkata Bench Read Post »

When auction advertisement not indicate the sale is a Slump Sale or as a Going Concern, it is open for Auction Purchaser to treat the sale on Going Concern basis | SCC decision to sell as a slump sale basis without exploring the options provided in Liquidation Regulations 32(d) and 32(e) is against the objectives of the IBC, 2016 – Mr. Daulat Ram Jain, RP Vs. ASL Enterprises Ltd. – NCLT Kolkata Bench

/ 4 minutes of reading

The Hon’ble NCLT Kolkata Bench held that the intention and the decision taken by the SCC to sell the corporate debtor on slump sale basis has not come out clearly in the advertisement when the entire factory is sold along with the plant and machinery. In such a scenario it is open for the auction purchaser to treat the sale on going concern basis, particularly when the entire plant, along with land, buildings, machineries has been sold. It is the successful auction purchaser who is in a position to decide whether he will be in a position to run the Company as a going concern or not with or without carrying out necessary repairs/refurbishing.

When auction advertisement not indicate the sale is a Slump Sale or as a Going Concern, it is open for Auction Purchaser to treat the sale on Going Concern basis | SCC decision to sell as a slump sale basis without exploring the options provided in Liquidation Regulations 32(d) and 32(e) is against the objectives of the IBC, 2016 – Mr. Daulat Ram Jain, RP Vs. ASL Enterprises Ltd. – NCLT Kolkata Bench Read Post »

Whether a company petition which has been dismissed on account of withdrawal or in view of a settlement between the parties can be revived when no liberty was granted in the earlier order of dismissal? – Surya Dealtrade Pvt. Ltd. Vs. Vipul Ltd. – NCLT New Delhi Bench

/ 5 minutes of reading

The Hon’ble NCLT New Delhi Bench held the object and intent of CIRP is to rescue the Corporate Debtor and to put it back to its feet. The same is not to facilitate the recovery of debt. Therefore, granting the relief being sought by the Applicant in the present application would result in turning the IBC, 2016 into a debt recovery proceeding where a party would repeatedly approach this Tribunal for recovery of the same debt.

Whether a company petition which has been dismissed on account of withdrawal or in view of a settlement between the parties can be revived when no liberty was granted in the earlier order of dismissal? – Surya Dealtrade Pvt. Ltd. Vs. Vipul Ltd. – NCLT New Delhi Bench Read Post »

Once a petition under Section 7 of the IB Code is admitted, its withdrawal can be possible only if a compliance is made with Section 12A of the IB Code – Ravindra G. Sapkal Vs. Samata Nagari Sahkari Patsantha Maryadit – Supreme Court

/ 2 minutes of reading

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Once a petition under Section 7 of the IB Code is admitted, its withdrawal can be possible only if a compliance is made with Section 12A of the IB Code – Ravindra G. Sapkal Vs. Samata Nagari Sahkari Patsantha Maryadit – Supreme Court Read Post »

When a unit holder is handed over possession and a Conveyance Deed has also been executed, no claim survives of such unit holders | Whether a claim is admissible or not is a question, which need to be looked into by the Resolution Professional – Harpal Singh Chawla Vs. Vivek Khanna and Ors. – NCLAT New Delhi

/ 24 minutes of reading

When CIRP was commenced against the Corporate Debtor, all Financial Creditors are entitled to file claim as per the CIRP Regulations, 2016. The real-estate allottees are Financial Creditors as per provisions of the IBC and in event any real-estate allottee has a claim against the Corporate Debtor, he is fully entitled to file a claim on commencement of the CIRP against the Corporate Debtor. It is true that when a unit holder is handed over possession and a Conveyance Deed has also been executed, no claim survives of such unit holders. Whether a claim filed by a Financial Creditor in a class, deserves admission, is a question, which need to be first looked into by the RP as per the statutory regulations governing the collation and verification of the claim.

When a unit holder is handed over possession and a Conveyance Deed has also been executed, no claim survives of such unit holders | Whether a claim is admissible or not is a question, which need to be looked into by the Resolution Professional – Harpal Singh Chawla Vs. Vivek Khanna and Ors. – NCLAT New Delhi Read Post »

Financial Creditor has taken other steps of execution proceedings against decree passed by High Court in terms of the settlement is no ground to not accept the Section 7 Petition under IBC – Mr. Rakesh Kumar Jain Vs. ADTV Communications Pvt. Ltd. – NCLAT New Delhi

/ 27 minutes of reading

The Hon’ble NCLAT held that IBC is a complete Code in itself and in view of the provisions of Section 238 of the Code, the provisions of the IBC would prevail, notwithstanding anything inconsistent therewith in any other law for the time being in force. Section 238 of the Code contains the non-obstante clause of the widest terms possible and therefore the code will prevail over other provisions. The fact that the Appellant/Financial Creditor had also taken other steps of execution proceedings before the Hon’ble High Court of Delhi is no ground to not accept the Section 7 Petition. Thus, the Appellant is indeed a Financial Creditor within the meaning of Section 5(7) and Section 5(8) of the IBC.

Financial Creditor has taken other steps of execution proceedings against decree passed by High Court in terms of the settlement is no ground to not accept the Section 7 Petition under IBC – Mr. Rakesh Kumar Jain Vs. ADTV Communications Pvt. Ltd. – NCLAT New Delhi Read Post »

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