27/06/2022

The claims which had not been filed cannot be agitated after the approval of the Resolution Plan – Ruchi Soya Industries Ltd. Vs. Assistant Commissioner of Income Tax Central Circle 7 (2) & Anr – NCLT Mumbai Bench

Applicant submits that the Impugned Notices are in respect of initiation of proceedings by the Respondent Department related to a period which is prior to the date of the approval of the Resolution Plan. Thus, on approval of the Resolution Plan, all claims prior to the date of approval stand extinguished i.e. all claims that had been filed shall stand extinguished in the manner in which they had been dealt with in the Resolution Plan and the claims which had not been filed cannot be agitated after the approval of the Resolution Plan. The Adjudicating Authority set aside impugned Notice.

The claims which had not been filed cannot be agitated after the approval of the Resolution Plan – Ruchi Soya Industries Ltd. Vs. Assistant Commissioner of Income Tax Central Circle 7 (2) & Anr – NCLT Mumbai Bench Read Post »

Future liabilities under Gas Sale Agreement which is not duly performed and as such not being covered under the definition of “claim” as defined in Sec. 3(6) of IBC – GAIL India Ltd. Vs. Mr. Milind Kasodekar, RP of Uttam Galva Steel Ltd. – NCLT Mumbai Bench

It is trite law that such verification is distinct from adjudication of claims, and an IRP is empowered to make a best estimate of the amount of the claim based on the information available under Regulation 14 of CIRP Regulations. It is the duty of an RP to verify each claim received, and admit the claim only to the extent it pertains to a period prior to the ICD based on the information available with them. Therefore, it is well within the powers of an IRP/RP to reject a claim or portion thereof for want of sufficient documents/evidence backing up such a claim.

Future liabilities under Gas Sale Agreement which is not duly performed and as such not being covered under the definition of “claim” as defined in Sec. 3(6) of IBC – GAIL India Ltd. Vs. Mr. Milind Kasodekar, RP of Uttam Galva Steel Ltd. – NCLT Mumbai Bench Read Post »

Can a Guarantor file insolvency proceeding u/s 7 of IBC against Principal Borrower using right of subrogation even in absence of any agreement between the Guarantor and the Principal Borrower – Orbit Towers Pvt. Ltd. Vs. Sampurna Suppliers Pvt. Ltd. – NCLT Kolkata Bench

The Adjudicating Authority observed that in the present case, the Corporate Debtor had borrowed from the Indian Bank for which, the Financial Creditor stood surety for this Corporate Debtor and once the amount claimed by the Indian Bank had not been paid by the Corporate Debtor, the surety had to liquidate and discharge the liability of the Corporate Debtor towards the Indian Bank. Therefore, under the provisions of the Indian Contract Act, 1872, all the rights of the then Creditor i.e. the Indian Bank, would automatically become the rights of the surety (Financial Creditor herein). There can be no doubt that the amount has admittedly been paid by the Financial Creditor on behalf of the principal debtor/Corporate Debtor, to Indian Bank.
Further, it held that any agreement of guarantee between the Indian Bank and the Guarantor is sufficient for the purpose of bestowing all the rights of the Bank/creditor upon the Financial Creditor herein once the Financial Creditor has discharged all the liability of the Corporate Debtor towards Indian Bank.

Can a Guarantor file insolvency proceeding u/s 7 of IBC against Principal Borrower using right of subrogation even in absence of any agreement between the Guarantor and the Principal Borrower – Orbit Towers Pvt. Ltd. Vs. Sampurna Suppliers Pvt. Ltd. – NCLT Kolkata Bench Read Post »

The right to sue occurs only when the default occurs – Alumilite Architecturals Ltd. Vs. Sheth Developers Pvt. Ltd. – NCLT Mumbai Bench

The Petitioner in support of his claim as an Operational Creditor has not annexed invoices raised. However, computation of claim is placed on record. The date of default is not indicated by the Petitioner in Part IV of the Petition. In order to establish default, the date of such default is the decisive point which comes into play. It is on the said date that the cause of actions arises because the right to sue occurs only when the default occurs. Nonetheless, even if we consider the last invoice raised by the Operational Creditor is dated 03.11.2013 and the retention amount becomes due on 03.11.2014 i.e. 12 months after the date of invoice raised according to the terms of payment of the work order. Therefore, the limitation period to file the Petition as per Article 137 of Limitation Act, would end on 03.11.2017. The acknowledgement of debt, if any must be made by the debtor before the expiry of period of limitation. In the present case the Corporate Debtor vide letter dated 29.01.2018 has acknowledged the debt. Therefore, we are of the view that the Operational Creditor’s contention that the Corporate Debtor acknowledged the liability vide letter dated 29.01.2018 does not lie owing to the fact that the debt was already time barred on 03.11.2017.

The right to sue occurs only when the default occurs – Alumilite Architecturals Ltd. Vs. Sheth Developers Pvt. Ltd. – NCLT Mumbai Bench Read Post »

IBC does not protect the interest or claim of a partner against another partner – Parul A Vora Vs. Kavya Buildcon Pvt. Ltd. – NCLT Mumbai Bench

The Adjudicating Authority held that considering Section 5(7), Section 5 (8) read with Section 7 of IBC, when the Financial Creditor approaches this Adjudicating Authority under section 7 of the Code, the Financial Creditor must prove that the alleged loan amount was disbursed to Corporate Debtor and such disbursal was made for a consideration for time value of money. Lastly, the Financial Creditor must be able establish a default. Even though the Gammon India judgement is under Section 9 of the Code the ratio laid therein will also apply to the present petition under Section 7 of the Code. The AA rejected the petition and held that the IBC does not protect the interest or claim of the partner against another partner or the Firm as such though, the Financial Creditor may be entitled to the claims against the Corporate Debtor under any other law in force which may provide the legal recourse to the Financial Creditor.

IBC does not protect the interest or claim of a partner against another partner – Parul A Vora Vs. Kavya Buildcon Pvt. Ltd. – NCLT Mumbai Bench Read Post »

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