22/12/2022

OTS to which the Personal Guarantor is not a party cannot be construed as an acknowledgment on the part of the Personal Guarantor, Dena Bank vs. C. Shivakumar Reddy & Anr. judgment does not apply to the Personal Guarantor – State Bank of India Vs. Mr. P.Raja Rao – NCLT Amaravati Bench

The Adjudicating Authority observed that the Personal Guarantor was not a party to the said OTS proposal and no signatures are taken from the Personal Guarantor in respect of the said OTS proposal. A judgment relied upon by the Counsel for the FC which is rendered by the Hon’ble Supreme Court of India in Dena Bank (now Bank of Baroda) vs. C. Shivakumar Reddy & Anr. (2021) ibclaw.in 69 SC, is on the point whether OTS proposal would amount to an acknowledgment on the part of the CD.

The Adjudicating Authority held that the judgment does not pertain to the Personal Guarantor. The question whether Section 18 of the Limitation Act, applies to the proceedings under IBC is too well settled that it is applicable. But from the facts, it has to be seen whether there is any acknowledgment on the part of the Personal Guarantor, when alone Section 18 of the Limitation Act, can be made applicable.

OTS to which the Personal Guarantor is not a party cannot be construed as an acknowledgment on the part of the Personal Guarantor, Dena Bank vs. C. Shivakumar Reddy & Anr. judgment does not apply to the Personal Guarantor – State Bank of India Vs. Mr. P.Raja Rao – NCLT Amaravati Bench Read Post »

A lease, more than 12 months has to be registered in the manner known to law and in accordance with Law and an unregistered lease/documents cannot be looked into by a court of law/Tribunal even for a collateral purpose – Mr. N. Nallusamy Vs. Mr. S. Rajendran & Anr. – NCLAT Chennai

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A lease, more than 12 months has to be registered in the manner known to law and in accordance with Law and an unregistered lease/documents cannot be looked into by a court of law/Tribunal even for a collateral purpose – Mr. N. Nallusamy Vs. Mr. S. Rajendran & Anr. – NCLAT Chennai Read Post »

Date of default does not mean a strict interpretation that it has to be the date of NPA – Edelweiss Asset Reconstruction Company Ltd. Vs. Perfect Engine Components Pvt. Ltd. – NCLAT New Delhi

In the Laxmi Pat Surana Vs. Union Bank of India & Anr. judgement, the Hon’ble Apex Court has clearly laid down the principle that the ‘date of default’ does not mean a strict interpretation that it has to be the ‘date of NPA’ in fact, the ‘date of default’ defined under Section 3(12) of the Code is to mean ‘non-payment of a date which has become ‘due and payable’ whether in whole or any part and is not paid by the Corporate Debtor’.
The issue of Limitation is to be tested on the touchstone of the ratio of the Hon’ble Apex Court in Dena Bank Vs. C. Shivakumar Reddy & Anr., wherein the Hon’ble Apex Court has clearly laid down that Judgement/decree for money or Certificate of Recovery or Arbitral Award in favour of the ‘Financial Creditor’, constitutes an ‘acknowledgement of debt’ and gives rise to a fresh cause of action, provided it is within three years of the default.

Date of default does not mean a strict interpretation that it has to be the date of NPA – Edelweiss Asset Reconstruction Company Ltd. Vs. Perfect Engine Components Pvt. Ltd. – NCLAT New Delhi Read Post »

Tribunal does not have residual equity-based jurisdiction to direct modifications of claims provided for in the Resolution Plan once the Plan is approved – Paramvir Singh Tiwana Vs. Puma Realtors Pvt. Ltd. – NCLAT New Delhi

The issue raised by the Appellant/Operational Creditors in these Appeals that there is discrimination between the class of Creditors and that GMADA was paid 100% of the amount in the Books of the Corporate Debtor, though they did not prefer any claim, while the Appellants were given only 25% of the claim amounts which is in violation of Section 30(2)(b) & (e) of the Code.

Tribunal does not have residual equity-based jurisdiction to direct modifications of claims provided for in the Resolution Plan once the Plan is approved – Paramvir Singh Tiwana Vs. Puma Realtors Pvt. Ltd. – NCLAT New Delhi Read Post »

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