22/02/2021

Adjudicating Authority is statutorily bound to pass an order of admission or rejection on being satisfied in respect of debt, default and completeness of the application within 14 days from the date of filing of such application – Aditya Birla Finance Ltd. Vs. Sintex Prefab and Infra Ltd – NCLAT New Delhi

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Adjudicating Authority is statutorily bound to pass an order of admission or rejection on being satisfied in respect of debt, default and completeness of the application within 14 days from the date of filing of such application – Aditya Birla Finance Ltd. Vs. Sintex Prefab and Infra Ltd – NCLAT New Delhi Read Post »

There is no second opinion of an important fact that distinction between Deposits and Loans may not be a significant factor for interpreting the word Deposit – Mr. Mohanlal Dhakad Vs. BNG Global India Limited – NCLAT New Delhi

To determine the plea of occurrence of default is the debt which must be due and become payable. An existence of debt and default are to be met for admission of an Application under section 7 of the Code. A Debt is/was recoverable from the Corporate Debtor. It is relevant to point out that a deposit is more than a loan of money. Significantly, deposit is given at the instance of an individual who is making a deposit. Under the Companies Act, 2013, the powers of Tribunal are of wide amplitude. Rule 17 of Companies (Acceptance of Deposits) Rules, 2014 provides that a Company shall be liable to pay penal interest at 18% p.a. to the depositor, if there is any failure to repay Deposits within due date. In fact, the penal interest is payable when the payment was overdue after maturity of the deposits.(p29-30)

At the stage of Admission, the Adjudicating Authority is to be satisfied that a Default had occurred and the Corporate Debtor is entitled to point out that the Default had not occurred. No other person has the right to be heard at the state of Admission. There is no second opinion of an important fact that distinction between Deposits and Loans may not be a significant factor for interpreting the word, Deposit. One cannot ignore a candid fact that maturity of claim, default of claim or invocation of guarantee has no nexus in regard to the filing of claim before the Interim Resolution Professional under section 18(1)(b) of the Code and the Resolution Professional under section 25(2)(e) of the Code.(p31-32)

There is no second opinion of an important fact that distinction between Deposits and Loans may not be a significant factor for interpreting the word Deposit – Mr. Mohanlal Dhakad Vs. BNG Global India Limited – NCLAT New Delhi Read Post »

Adjudicating Authority would not be justified in drawing a conclusion in respect of there being dispute as regards debt and default merely on the strength of an Arbitration Agreement – Sodexo India Services Pvt. Ltd. Vs. Chemizol Additives Pvt. Ltd – NCLAT New Delhi

NCLAT held that On a plain reading of provision section 9(5) of the Code, it is abundantly clear that the Adjudicating Authority has only two options, either to admit Application or to reject the same. No third option or course is postulated by law. Section 238 of the I&B Code, which has an overriding effect over the existing laws or any other law or contract, would not admit of the alternative remedy being a disabling provision for Operational Creditor to seek resolution of a dispute in regard to operational debt claimed against the Corporate Debtor by triggering the CIRP. It is immaterial whether Corporate Debtor is solvent or insolvent qua other creditors. Ease of doing business only being an objective of the legislation viz. I&B Code along with other objectives specified in the preamble, which are sought to be achieved through CIRP process.

Adjudicating Authority would not be justified in drawing a conclusion in respect of there being dispute as regards debt and default merely on the strength of an Arbitration Agreement – Sodexo India Services Pvt. Ltd. Vs. Chemizol Additives Pvt. Ltd – NCLAT New Delhi Read Post »

The Code or the Regulations there under do not contemplate presentation or supply of the Resolution Plan or a copy thereof to any other body or entity – National Aviators’ Guild (NAG) Vs. Ashish Chhawchharia, Resolution Professional for Jet Airways (India) Limited – NCLT Mumbai Bench

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The Code or the Regulations there under do not contemplate presentation or supply of the Resolution Plan or a copy thereof to any other body or entity – National Aviators’ Guild (NAG) Vs. Ashish Chhawchharia, Resolution Professional for Jet Airways (India) Limited – NCLT Mumbai Bench Read Post »

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