23/09/2020

Claims for damages to the rented premises, the liquidation proceedings cannot be converted into Landlord Tenant dispute – Vikas Jain Vs. MD Nazim Khan, Liquidator & Anr. – NCLAT New Delhi

NCLAT held that when the matter is in liquidation, such claims which are not already liquidated cannot be gone into in a manner Civil Court would examine disputes being raised which would require recording of evidence. Valuer could not give opinion if Corporate Debtor caused the damages, as is being argued. The liquidation proceedings cannot be converted into Landlord Tenant dispute. We have seen the reasons given by Liquidator regarding the various claims, which are reproduced in the Impugned Order. In the set of facts which we have before us, going through the reasons recorded by the Adjudicating Authority, we do not find any reason to interfere.

Claims for damages to the rented premises, the liquidation proceedings cannot be converted into Landlord Tenant dispute – Vikas Jain Vs. MD Nazim Khan, Liquidator & Anr. – NCLAT New Delhi Read Post »

The plea raised that the extension of co-operation u/s 19 of the code is restricted to only managing directors/executive directors cannot be accepted, the Independent Directors are part of Board of Directors and have similar duties & responsibilities as other directors – Shailesh Chawla Vs. Vinod Kumar Mahajan, RP – NCLAT New Delhi

NCLAT held that a mere running of the eye of the ingredients of Section 19 of the Code latently and patently imposes an obligation on the personnel and promoters of the ‘Corporate Debtor’ to extend all assistance and cooperation which the ‘Interim Resolution Professional’ will require in running / managing the affairs of the CD. In fact, the term ‘personnel’ is defined to mean the employees, directors, mangers, key managerial personnel etc., if any of the ‘Corporate Debtor’ and this is meant to render assistance to the ‘Interim Resolution Professional’ in carrying out his duties in an effective and efficacious manner. It is to be pointed out that Section 19 of the Code is not only restricted to the Managing Directors / Executive Directors it also to other key managerial personnel Directors, mangers, employees and designated partners and any of the ‘Corporate Debtor’. In fact, one cannot find the term ‘Sleeping Directors’ either under the Companies Act, 2013 or under the ‘I&B’ code, 2016. Therefore, the contra contentions advanced on behalf of the Appellants is unworthy of acceptance and the same is negatived by this Tribunal.

The plea raised that the extension of co-operation u/s 19 of the code is restricted to only managing directors/executive directors cannot be accepted, the Independent Directors are part of Board of Directors and have similar duties & responsibilities as other directors – Shailesh Chawla Vs. Vinod Kumar Mahajan, RP – NCLAT New Delhi Read Post »

The publication of notice in the newspaper, no effort was not made for serving the notice through email – Prakash Kalash Shareholder & Member of suspended Board of Directors M/s Gurusukh Vintrade Service Pvt Ltd Vs. M/s Apeejay Surrendra Park Hotels Ltd – NCLAT New Delhi

NCLAT held that it is clear that the Court notice issued against the Corporate Debtor could not be served on account of insufficient address; after that, the Adjudicating Authority passed an order of publication of notice in the newspaper. Based on the publication of notice in the newspaper, service was held sufficient, and the Court passed an order to proceed the case ex-parte against the Corporate Debtor. In the present case, the notice issued against the Corporate Debtor returned unserved because of “insufficient address”. After that, without exploring the possibility of service by other modes like email, the Adjudicating Authority passed the order for substituted service by publication of notice in the newspaper. In such circumstances, passing of an order for an ex-parte hearing against the Corporate Debtor, based on substituted service, cannot be held proper in the light of the law laid down by Hon’ble Supreme Court in the Neerja Realtors (P) Ltd. Vs. Janglu2018 (2) SCC 649.

The publication of notice in the newspaper, no effort was not made for serving the notice through email – Prakash Kalash Shareholder & Member of suspended Board of Directors M/s Gurusukh Vintrade Service Pvt Ltd Vs. M/s Apeejay Surrendra Park Hotels Ltd – NCLAT New Delhi Read Post »

The Demand Notice post tracking receipt only records that “Item Dispatched”, this is not enough to satisfy the requirement of section 9(5)(ii)(c) of the IBC read with rule 5(2) of AAA Rules, 2016, both of which use the term “delivered” – Pankaj Modani Vs. Big Vision Water Tech Private Limited – NCLT Mumbai Bench

The case of the Operational Creditor is that the Operational Creditor raised invoices on the Corporate Debtor towards professional fees for providing professional compliance services for the month of October, 2018. The Corporate Debtor was granted a credit period of one month after raising the invoice on 05.10.2018. The total debt due and payable to the Operational Creditor is stated to be ₹ 1,40,682.00. The Operational Creditor had served a Demand Notice in Form 3 dated 12.04.2019 to the Corporate Debtor in terms of section 8 of the IBC. The Corporate Debtor has not replied to the Demand Notice. The Corporate Debtor has not submitted any reply in the matter. NCLT held that proof of service of Demand Notice has not been attached to the Petition. However, proof of posting in the form of Speed Post receipt No.EM779732264IN dated 12.04.2019 has been attached. The tracking receipt attached only records that “Item Dispatched.” This is not enough to satisfy the requirement of section 9(5)(ii)(c) of the IBC read with rule 5(2) of AAA Rules, 2016, both of which use the term “delivered.”

The pre-requisites of section 9 of the IBC have not been satisfied. Therefore, the present petition fails and therefore, the same is rejected in terms of section 9(5)(ii)(c) of the IBC.

The Demand Notice post tracking receipt only records that “Item Dispatched”, this is not enough to satisfy the requirement of section 9(5)(ii)(c) of the IBC read with rule 5(2) of AAA Rules, 2016, both of which use the term “delivered” – Pankaj Modani Vs. Big Vision Water Tech Private Limited – NCLT Mumbai Bench Read Post »

IBC is not a recovery law, its purpose is to save the companies & also to allow them to be going concern – Saurabh Bharatbhushan Jain Shareholder & Director of M/s. Sysco Industries Ltd.  Vs. Excel Tubes & Cones – NCLAT New Delhi

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IBC is not a recovery law, its purpose is to save the companies & also to allow them to be going concern – Saurabh Bharatbhushan Jain Shareholder & Director of M/s. Sysco Industries Ltd.  Vs. Excel Tubes & Cones – NCLAT New Delhi Read Post »

Adjudicating Authority cannot take upon itself the role of a civil court in enforcing specific performance of such contracts – Jenis Vora through duly constituted attorney, Viraj Vora Vs. HBS View Pvt. Ltd. – NCLT Mumbai Bench

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Adjudicating Authority cannot take upon itself the role of a civil court in enforcing specific performance of such contracts – Jenis Vora through duly constituted attorney, Viraj Vora Vs. HBS View Pvt. Ltd. – NCLT Mumbai Bench Read Post »

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