Adjudicating Authority & Appeals

Third Member’s decision on Certified Copy vs. Free Copy: Free Copy provided under NCLT Rule 50 cannot be treated as to be a Certified Copy referred to under NCLAT Rule 22(2) and the Free Copy will not satisfy to be a Certified Copy, as defined under NCLT Rule, to be read with Section 76 of the Evidence Act – State Bank of India Vs. India Power Corporation Ltd. – NCLAT Chennai

/ 43 minutes of reading

The Company Appeal has been placed before third member of NCLAT in response to a question referred to be answered, because of the dissenting opinion of the Bench of Two Members on an issue, as to how the aspect pertaining to the “Certified Copy’’, could be construed for the purposes of filing of an Appeal, under Section 61 of IBC.

Hon’ble Third Member agrees with decision of Member (Judicial) holding that the Free Copy provided under Rule 50 of NCLT Rules, 2016, cannot be treated as to be a Certified Copy referred to under Rule 22(2) of NCLAT Rules, 2016, and the Free Copy will not satisfy to be a Certified Copy, as defined under Section 2(j) of the NCLT Rules, to be read with Section 76 of the Evidence Act.

Third Member’s decision on Certified Copy vs. Free Copy: Free Copy provided under NCLT Rule 50 cannot be treated as to be a Certified Copy referred to under NCLAT Rule 22(2) and the Free Copy will not satisfy to be a Certified Copy, as defined under NCLT Rule, to be read with Section 76 of the Evidence Act – State Bank of India Vs. India Power Corporation Ltd. – NCLAT Chennai Read Post »

Period of limitation and certified copy for filing of appeal before NCLAT under Section 61 of IBC – Chanderpati Vs. Soni Realtors Pvt. Ltd. – NCLAT New Delhi

/ 62 minutes of reading

In this important judgment, Hon’ble NCLAT referred four judgments on condonation of period of limitation for filing appeal u/s 61 of IBC and summarised the law in the following points:
(i) the period of limitation is to be reckoned from the date of pronouncement of the order in the cases covered by the Code
(ii) It is mandatory to annex the certified copy of the impugned order with the memorandum of appeal
(iii) the Tribunal may exempt the parties from compliance with the procedural requirement in the interest of substantial justice as reiterated in Rule 14
(iv) There is no automatic exemption where the litigants makes no efforts to pursue a timely resolution of their grievance.
(v) The Appellant having failed to apply for a certified copy, rendered the appeal filed before the NCLAT as clearly barred by limitation.
(vi) It is not open to the person aggrieved under the Code to await the receipt of free certified copy under Section 420(3) of the Act r/w Rule 50 and prevent limitation from running
(vii) Litigant has to file the appeal within 30 days which can be extended upto a period of 15 days on showing sufficient cause which cannot be condoned thereafter
(viii) Limitation cease to run from the date of -e-filing
(ix) In order to take advantage of Section 12(2) of the Act 1963, certified copy has to be applied during the currency of the period prescribed for filing an appeal.

Period of limitation and certified copy for filing of appeal before NCLAT under Section 61 of IBC – Chanderpati Vs. Soni Realtors Pvt. Ltd. – NCLAT New Delhi Read Post »

NCLAT is not vested with any power to review the judgment, however, in exercise of its inherent jurisdiction NCLAT can entertain an application for recall of judgment on sufficient grounds – Union Bank of India (Erstwhile Corporation Bank) Vs. Dinkar T. Venkatasubramanian & Ors. – NCLAT New Delhi

/ 34 minutes of reading

NCLAT held that the three-member bench judgment in Agarwal Coal Corporation Pvt. Ltd. and K.L.J Resources Ltd. & Anr. observing that the Tribunal does not have power to recall cannot be approved. The three-member bench judgments of this Tribunal insofar as observation that this Tribunal has no power to review, no exception can be taken to that part of the judgment. We, however, hold that the judgment laying down that this Tribunal has no power to recall the judgment does not lay down correct law. It is also held that this Tribunal is not vested with any power to review the judgment, however, in exercise of its inherent jurisdiction this Tribunal can entertain an application for recall of judgment on sufficient grounds.

NCLAT is not vested with any power to review the judgment, however, in exercise of its inherent jurisdiction NCLAT can entertain an application for recall of judgment on sufficient grounds – Union Bank of India (Erstwhile Corporation Bank) Vs. Dinkar T. Venkatasubramanian & Ors. – NCLAT New Delhi Read Post »

Whether when the last day of condonable period of 30 days (under Section 34(3) of the Arbitration Act) falls on holiday or during the Court vacation, would the benefit of Section 10 of the General Clauses Act, 1897 be available? – Bhimashankar Sahakari Sakkare Karkhane Niyamita Vs. Walchandnagar Industries Ltd. (WIL) – Supreme Court

/ 39 minutes of reading

A short question which is posed for consideration is whether in the facts and circumstances of the case, the learned trial Court was justified in not condoning the delay in preferring the application under Section 34(3) of the Arbitration Act, which was filed after the expiry of 120 days but filed on the first day of reopening after the winter / Christmas vacation and in a case where the condonable period of 30 days under Section 34(3) of the Arbitration Act had fallen during the winter / Christmas vacation? The question is with respect to applicability of Section 4 of the Limitation and Section 10 of the General Clauses Act, 1897 in the facts and circumstances of the case. Therefore, the central question in the present appeal is whether when the last day of condonable period of 30 days (under Section 34(3) of the Arbitration Act) falls on holiday or during the Court vacation, would the benefit of Section 10 of the General Clauses Act, 1897 be available?

Whether when the last day of condonable period of 30 days (under Section 34(3) of the Arbitration Act) falls on holiday or during the Court vacation, would the benefit of Section 10 of the General Clauses Act, 1897 be available? – Bhimashankar Sahakari Sakkare Karkhane Niyamita Vs. Walchandnagar Industries Ltd. (WIL) – Supreme Court Read Post »

When Appeal is filed in defects and defects are not cured within 7 days and the defects are cured after 7 days and the Appeal is refiled, Whether the refiling shall be a fresh filing of the Appeal – Mr. V R Ashok Rao Vs. TDT Copper Ltd. – NCLAT New Delhi

/ 29 minutes of reading

NCLAT in this case referred the following issues to larger bench:
(a) Whether the law laid down by this Tribunal in “Mr. Jitendra Virmani Vs. MRO-TEK Realty Ltd. & Ors” and three Member Bench Judgement in “Arul Muthu Kumaara Samy Vs. Registrar of Companies” that when the defect in Appeal is cured and the Appeal is refiled before the Appellate Tribunal beyond seven days, the date of re-presentation of the Appeal shall be treated as a fresh Appeal, lays down correct law?
(b) Whether the limitation prescribed for filing an Appeal before this Appellate Tribunal under Section 61 of Insolvency and Bankruptcy Code, 2016 or Section 421 of the Companies Act, 2013 shall also govern the period under which a defect in the Appeal is to be cured and this Appellate Tribunal shall have no jurisdiction to condone the delay in refiling/representation if it is beyond the limitation prescribed in Section 61 of the IBC or Section 421 of the Companies Act, 2013.

When Appeal is filed in defects and defects are not cured within 7 days and the defects are cured after 7 days and the Appeal is refiled, Whether the refiling shall be a fresh filing of the Appeal – Mr. V R Ashok Rao Vs. TDT Copper Ltd. – NCLAT New Delhi Read Post »

NCLT Rule 37(3) cannot be read to mean that on non-filing of reply by the Corporate Debtor before the date of hearing, he can neither ask for any time, nor can be granted any time by the Adjudicating Authority to file the reply – Mr. Ashok Tiwari Vs. DBS Bank India Ltd. (DBIL) – NCLAT New Delhi

/ 22 minutes of reading

A notice was issued by the Adjudicating Authority to the Corporate Debtor in Section 7 Application filed by the Financial Creditor on 11.02.2022, which notice was served on the Corporate Debtor(Appellant herein) on 07.03.2022. 29.03.2022, was the first date of hearing before the Adjudicating Authority, when the Corporate Debtor was required to appear. On the first date of hearing, the Corporate Debtor appeared through Counsel and made a request for time to file a reply, which request was turned down by the impugned order and Adjudicating Authority proceeded to admit the Application by order of the same date, that is, 29.03.2022. NCLAT held that sub-rule (3) of Rule 37 does not provide for any consequence in event of non-filing of reply before the next date of hearing. Rule 37 is procedural Rule and procedural Rules are there to assist the adjudication of the dispute by Adjudicating Authority. Rule 37, sub-rule (3) cannot be read to mean that on non-filing of reply by the Corporate Debtor before the date of hearing, he can neither ask for any time, nor can be granted any time by the Adjudicating Authority to file the reply. On non-appearance of Corporate Debtor on the next date of hearing, Adjudicating Authority is not to mechanically proceed to dispose of the Application ex-parte. When a Corporate Debtor, who does not appear on the date fixed, is entitled to a reasonable opportunity before proceeding ex-parte, a Corporate Debtor who appeared on the first date of hearing cannot be put to in worse position than a Corporate Debtor who does not appear. The NCLT Rules, 2016 namely – Rule 34 as well as Rule 51 entitles the Tribunal to regulate its own procedure in accordance with the rules of natural justice.

NCLT Rule 37(3) cannot be read to mean that on non-filing of reply by the Corporate Debtor before the date of hearing, he can neither ask for any time, nor can be granted any time by the Adjudicating Authority to file the reply – Mr. Ashok Tiwari Vs. DBS Bank India Ltd. (DBIL) – NCLAT New Delhi Read Post »

Whether the Adjudicating Authority while exercising jurisdiction under the IBC have any jurisdiction to issue Non-Bailable Warrant against any person or party – Vikram Puri (Suspended Director) Vs. Universal Buildwell Pvt. Ltd. – NCLAT New Delhi

/ 20 minutes of reading

In spite of several opportunities given to Suspended Directors, they refused to surrender even though their prayer for cancellation of the Non-Bailable Warrants was rejected. NCLAT holds that the provision of Rule 77 of the NCLAT Rules, 2016 read with Order XVI Rule 10 of Civil Procedure Code fully empowers the Adjudicating Authority to issue a Non-Bailable Warrant for enforcing attendance of a person. The power exercised by the Adjudicating Authority in issuing a Non-Bailable Warrant to the Appellants is thus well within jurisdiction of the Adjudicating Authority and the submission of the Counsel for the Appellants that Adjudicating Authority is not clothe with any power to issue Non-Bailable Warrant has to be rejected. NCLAT further observes that in addition to enforcement of Non-Bailable Warrants, it shall be also open for the Adjudicating Authority to recommend for initiation of prosecution against the Suspended Directors of the Corporate Debtor in event of commission of an offence within meaning of Code.

Whether the Adjudicating Authority while exercising jurisdiction under the IBC have any jurisdiction to issue Non-Bailable Warrant against any person or party – Vikram Puri (Suspended Director) Vs. Universal Buildwell Pvt. Ltd. – NCLAT New Delhi Read Post »

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