19/01/2021

Whether the pre-existence of dispute shall be seen from the date of the first demand notice or the second demand notice? – Naresh Sevantilal Shah Vs. Malharshanti Enterprises – NCLAT New Delhi

/ 30 minutes of reading

The Operational Creditor first sent a demand notice under section 8 of the Code to the Corporate Debtor on 2nd December, 2017. On the basis of the first demand notice, the Operational Creditor filed a petition under section 9 the same was dismissed on 13th August, 2018 on the ground that the petition is defective because damages claim has been included in the petition, he has asked for withdrawal of this petition with a liberty to proceed against the Corporate Debtor with a correct claim as envisaged under this code.
On 13th March, 2018, the Corporate Debtor sent a detailed legal notice to the Operational Creditor setting out several pre-existing disputes as to quality of work and delay in completion of work. Subsequently on 10th April, 2018, a notice invoking arbitration was sent to the Operational Creditor. Subsequent to this the Operational Creditor sent another demand notice under section 8 of Code on 23rd August, 2018. The Adjudicating Authority has admitted the application referring NCLAT’s decision in Dinesh Gupta vs. Hajura Singh Bhim Singh & another. The Appellant argued that the Adjudicating Authority misplaced its reliance on the above Judgment as in that case the first petition was dismissed on technical ground. However, in the present case, the first petition was not dismissed on technical ground but because Operational Creditor had made an incorrect claim.
NCLAT upheld decision of the Adjudicating Authority and held that his argument of the Appellant is turned down as firstly the above Judgment was mainly pointing out that there should be no dispute in existence prior to the 1st demand notice issued under Section 8(1) of the I&B Code. The Appellant has wrongly emphasized on the word ‘technical ground’ and not the ratio that was laid down under the judgment. Secondly, it is the Adjudicating Authority who shall observe whether the ground on which the first application was dismissed was a technical ground or not.

Whether the pre-existence of dispute shall be seen from the date of the first demand notice or the second demand notice? – Naresh Sevantilal Shah Vs. Malharshanti Enterprises – NCLAT New Delhi Read Post »

Landmark judgment on filing of CIRP application under Section 7 of IBC by Homebuyers or allottees under RERA, 2016 – Manish Kumar Vs. Union of India and Another – Supreme Court

/ 455 minutes of reading

This judgment covers: A.1 Background. A.2 Grounds on which a law can be challenged. B.1 The Real Estate (Regulation and Development) Act, 2016 and its Scheme. B.2 Definition of “Real Estate Project” and “Allottee” for the purpose of Section 5(8)(f) of IBC. B.2.1 Real Estate Project Meaning [Section 2(zn) of RERA, 2016]. B.2.2 Allottee Meaning [Section 2(d) of RERA, 2016]. B.2.3 Allottees to be from same Real Estate Project?. B.2.4 Holdings by Family Members etc. and Joint Holdings of a Unit: Single Allottee?. B.2.5 What will be the total number of allottees and therefore what would constitute 1/10 of total number of allottees under proviso to Section 7(1) of IBC. B.2.6 Calculation of threshold under proviso to Section 7(1) of IBC. B.2.7 Meaning of allotment. B.3 CIRP application filing procedures issues. B.3.1 Calculation of default threshold amount for Sec. 4 of IBC in Real Estate Project Insolvency Application/Joint Application. B.3.2 Single or multiple CIRP application(s) would have to be filled-up, if there are 100 and more allottees?. B.3.3 If they have agreements, under which, the date of default is different, how is the application to be drafted and processed?. B.3.4 The Point of Time to comply with the threshold requirements: at the time of filing of an application u/s 7 of IBC? or till the date, it is admitted u/s 7(5)? B.3.5 The power of waiver, being denied, unlike the Companies Act. B.4 Order I Rule 8 of the Code of Civil Procedure, 1908 and Section 12 of the Consumer Protection Act, 1986. B.5 Are the Amendments violative of the ‘Pioneer Judgment’ in Pioneer Urban Land and Infrastructure Ltd. and another v. Union of India and others. B.6 Information Asymmetry: How Home Buyers to obtain the information of total allotment. B.7 The First and Second Provisos Classification Down Memory Lane: Article 14 and Reasonable Classification. B.8 Allottees vs. Operational Creditors. B.9 Debenture Holders/Security Holders: The Challenge to the First Impugned Proviso. B.10 3rd Proviso in Section 7 of IBC is retrospective or prospective. B.11 Clarity regarding withdrawal under the Third Proviso. C.1 Interpretation of Section 11 of IBC. C.2 Interpretation of Explanation-I to Section 11 of IBC. C.3 Interpretation of Explanation-II to Section 11 of IBC and nature of the explanation. C.4 The challenge to Explanation-II to Section 11 of the Code. C.4.1 The scope of an Explanation. C.4.2 Is Explanation-II violation of Fundamental Right under Article 14 of the Constitution?. D.1 Interpretation of Section 32A. D.2 Constitutional validity of Section 32A. E.1 Management of the affairs of the corporate debtor will vest with the IRP. E.2 Earlier Liquidation Order under Section 33(2). E.3 Section 14 of the Limitation Act, 1963. E.4 Retrospective Nature of a statue.

Landmark judgment on filing of CIRP application under Section 7 of IBC by Homebuyers or allottees under RERA, 2016 – Manish Kumar Vs. Union of India and Another – Supreme Court Read Post »

NCLT shall not reject the Scheme solely on the ground that the appointed date under Section 232(6) of the Companies Act and valuation date is different – RHI India Pvt. Ltd. Vs. Union of India- NCLAT New Delhi

/ 20 minutes of reading

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NCLT shall not reject the Scheme solely on the ground that the appointed date under Section 232(6) of the Companies Act and valuation date is different – RHI India Pvt. Ltd. Vs. Union of India- NCLAT New Delhi Read Post »

The written contract can not be treated as an essential element to prove the Financial Debt if the transaction’s nature is proved otherwise – Narendra Kumar Agarwal Vs. Monotrone Leasing Private Limited – NCLAT New Delhi

/ 13 minutes of reading

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The written contract can not be treated as an essential element to prove the Financial Debt if the transaction’s nature is proved otherwise – Narendra Kumar Agarwal Vs. Monotrone Leasing Private Limited – NCLAT New Delhi Read Post »

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