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Akbar Travels of India Pvt. Ltd. v. Ritco Travels & Tours Pvt. Ltd. – NCLT Jaipur Bench Read Post »
In this case, an application has been filed by the allottees under Rule 11 of the NCLT Rules seeking impleadment of additional Financial Creditors to initiate CIRP of the Corporate Debtor.
NCLT Jaipur Bench held that:
(i) The threshold of Rs. 1 crore denotes the total default of the Corporate Debtor to any Financial Creditor and not necessarily only to the Applicant Allottees. Hence, the allottees can move against the promoter even without any amount being due to them, provided that they meet the numerical threshold requirement under Section 7 of the case. For calculating the total number of allottees, only the number of allotted units in a project shall be considered, irrespective of the number of units constructed.
(ii) In cases of joint allotments, wherein a single unit is allotted to more than one person, the joint allottees of that unit shall be considered to mean a single allottee.
(iii) In Manish Kumar Vs. Union of India (supra), the Hon’ble Supreme Court has held that the persons to whom the flats have already been sold after completing construction, thereof, would still be allottees and would be included for computation of threshold limit.
(iv) NCLT allowed the application.
In this case, IA was filed by RP for recovery of due to the Corporate Debtor.
NCLT Jaipur Bench held that:
(i) The duties imposed upon the RP/IRP does not entitle the Adjudicating Authority to exercise jurisdiction in matters where recovery of a particular amount is sought on behalf of the Corporate Debtor. For adjudication of disputes and recovery of sums the RP is empowered to approach relevant competent authorities.
(ii) The Resolution Professional in the present matter had approached this forum for recovery of debt which is allegedly owed by the Respondent No. 2 to the Corporate Debtor whereas it has forgotten the underlying principle which enunciates that this is not a debt recovery forum.
(iii) There is no doubt that the Resolution Professional has ample powers to proceed and protect the debts of the Corporate Debtor, but it cannot do so by merely filing an Application under Section 60(5) of the Code in the pending CIRP of the Corporate Debtor.
(iv) The Adjudicating Authority does not have the jurisdiction to allow the Application filed by the Resolution Professional.
This application has been filed by RP of the Corporate Debtor under Section 54K (15) of the IBC for seeking approval of the Base Resolution Plan of the Corporate Debtor namely M/s Shree Rajasthan Syntex Ltd.
NCLT Jaipur Bench held that the Base Resolution Plan, approved by COC u/s 54K(12) of the Code and submitted with the present application, in PPIRP of the Corporate Debtor by the Corporate Debtor deserves to be approved.
The Adjudicating Authority held that in the present case, no repayment plan has been filed as the Personal Guarantor/ Debtor did not cooperate with the RP even he did not respond to the calls made by the RP. In its report u/s 106, RP has submitted that due to non-cooperation of the Personal Guarantor/ Debtor. No repayment plan could be filed. Hence meeting of the creditors also could not be conducted. Since in this matter Personal Guarantor/ Debtor has not come forward to co-operate with the RP, hence, the only option left for the RP is to file an application for bankruptcy under Chapter IV. This application is allowed and Creditor shall be entitled to file an application under Chapter IV of the Code.
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NCLT Jaipur Bench held that it is true that the deduction of TDS and deposit by the Corporate Debtor does not itself prove that there is any financial debt but the deduction of TDS and deposit in Form 26AS under Section 194A of the Income Tax Act clearly proves that the deduction which was deposited was TDS relating to Interest other than interest on securities. Form 26AS was filed by the Financial Creditor along with the present petition under Section 7 of the Code, 2016 supporting the case of the Applicant that the loan which was granted to the Corporate Debtor was with interest.
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M/s Amrop India Pvt. Ltd. Vs. M/s Hi-Tech Gears Ltd. – NCLT Jaipur Bench Read Post »
