24/06/2020

NCLAT set aside AA order and held that the filing of Application in pursuance thereof under Section 12A of IBC seeking withdrawal of the Petition before the AA is arbitrary and against conscience of legal jurisprudence – Mr. Sandip Patel Vs. Central Bank of India – NCLAT

NCLAT held that the decision taken in the meeting of the Committee of Creditors on 05.07.2019 and filing of Application in pursuance thereof under Section 12 A of IBC seeking withdrawal of the Petition before the Adjudicating Authority is arbitrary and against conscience of legal jurisprudence. Accordingly, we set aside the order of the Adjudicating Authority dated 11.07.2019 passed in IA No. 399 of 2019 and Company Petition being CP(IB) No. 388/NCLT/AHM/2018 is restored to its original position. The Adjudicating Authority shall afford an opportunity to the Appellant to be heard before taking any decision whether or not withdrawal should be allowed.

NCLAT set aside AA order and held that the filing of Application in pursuance thereof under Section 12A of IBC seeking withdrawal of the Petition before the AA is arbitrary and against conscience of legal jurisprudence – Mr. Sandip Patel Vs. Central Bank of India – NCLAT Read Post »

A writing to be an acknowledgement of liability must involve an admission of subsisting Jural relationship between the parties and a conscious affirmation of an intention of continuing such relationship in regard to an existing liability – Mr. R.R. Gopaljee Vs. Indian Overseas Bank – NCLAT

NCLAT referring Hon’ble Supreme Court in the case of J.C. Budhraja Vs. Chairman, Orissa Mining Corporation Ltd. (2008) 2 SCC 444 decision,  held that it is now well settled that a writing to be an acknowledgement of liability must involve an admission of subsisting Jural relationship between the parties and a conscious affirmation of an intention of continuing such relationship in regard to an existing liability. The Admission need not be in regard to any precise amount nor by expressed words. If a defendant writes to the plaintiff requesting him to send his claim for verification of payment it amounts to an acknowledgement. The Hon’ble Supreme Court in the aforesaid judgment also held that in construing words used in the statement made in writing on which a plea of acknowledgement rest oral evidence has been expressly excluded but surrounding circumstances can always be considered. It is also held that the statement of which a plea of acknowledgement is based must relate to a person subsisting liability though the exact nature or the specific character of the said liability may not be indicated in words.

A writing to be an acknowledgement of liability must involve an admission of subsisting Jural relationship between the parties and a conscious affirmation of an intention of continuing such relationship in regard to an existing liability – Mr. R.R. Gopaljee Vs. Indian Overseas Bank – NCLAT Read Post »

It is not necessary to file an application only by RP or Liquidator to decide whether a transaction fall under section 50 or not. The Adjudicating Authority u/s 60(5) has jurisdiction to entertain or dispose of any Application or proceeding by or against the Corporate Debtor or Corporate persons – Smt. Anamika Singh Vs. Shinhan Bank – NCLAT

Relying the judgment in the matter of “Pioneer Urban Land and Infrastructure Limited and another Vs. Union of India and Others”, the learned Counsel for the Appellants submitted that all the persons who had advanced money to the Corporate Debtor should have a right to be on the CoC. Per-se the judgement of the Apex Court is binding on all the Courts and Tribunals. However, in the present case, the facts are completely different. As stated above, the Appellants No. 2,3,4,6,7 & 9 their transactions clearly fall under Section 50 of the IBC, 2016 and said transactions are Extortionate Credit Transactions for the reason that the said Appellants have charged exorbitant rates of interest which is not legal in the eye of law. Therefore, in exercise of powers conferred under Rule 11 of NCLAT Rule, 2016 and other enabling Provisions, we treat that these transactions are Extortionate Credit Transactions and we accordingly set aside these transactions as Extortionate Credit Transactions.

It is not necessary to file an application only by RP or Liquidator to decide whether a transaction fall under section 50 or not. The Adjudicating Authority u/s 60(5) has jurisdiction to entertain or dispose of any Application or proceeding by or against the Corporate Debtor or Corporate persons – Smt. Anamika Singh Vs. Shinhan Bank – NCLAT Read Post »

Section 25(2)(b) sets out the duty of Resolution Professional to preserve and protect the assets of the Corporate Debtor and lays down the functions he may perform the same – Tata Consultancy Services Limited Vs. Vishal Ghisulal Jain RP, S.K. Wheels Private Limited – NCLAT

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Section 25(2)(b) sets out the duty of Resolution Professional to preserve and protect the assets of the Corporate Debtor and lays down the functions he may perform the same – Tata Consultancy Services Limited Vs. Vishal Ghisulal Jain RP, S.K. Wheels Private Limited – NCLAT Read Post »

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