09 (5) (ii) (d)

Can NCLT reject an application filed under Section 9 of IBC on the grounds that no proper explanation given on the date of invoice, default and limitation period to ascertain the due date, without providing opportunity to rectify the defects as per proviso to Section 9(5)(ii) of IBC – Shiv Glitz Hotels and Resorts LLP Vs. Oravel Stays Ltd. – NCLAT New Delhi

Hon’ble NCLAT held that:

(i) When the Adjudicating Authority has proceeded to dismiss the Application as defective, it was obligatory as per Proviso to Section 9(5)(ii) to give a notice to the Applicant to rectify the defect in the Application within seven days from the date of receipt of such notice. The Adjudicating Authority having not issued a notice under Proviso, the order impugned is unsustainable on this ground alone.
(ii) Adjudicating Authority having not adverted on the issue of pre-existing dispute, it is appropriate that said issue be gone into and considered by the Adjudicating Authority in accordance with law.

Can NCLT reject an application filed under Section 9 of IBC on the grounds that no proper explanation given on the date of invoice, default and limitation period to ascertain the due date, without providing opportunity to rectify the defects as per proviso to Section 9(5)(ii) of IBC – Shiv Glitz Hotels and Resorts LLP Vs. Oravel Stays Ltd. – NCLAT New Delhi Read Post »

Reply to Demand Notice under Section 8(1) of IBC having not been given within 10 days or no reply to demand notice having been filed by the Corporate Debtor does not preclude the Corporate Debtor to raise the issue of Pre-Existing Dispute before the Adjudicating Authority – M/s. Brand Realty Services Ltd. Vs. M/s. Sir John Bakeries India Pvt. Ltd. – NCLAT New Delhi

NCLAT holds that even in absence of notice of dispute, Adjudicating Authority can reject the Application if there is record of dispute in the Information Utility. It goes without saying that record of dispute in the Information Utility can very well be pointed out by the Corporate Debtor before the Adjudicating Authority when notice is issued under Section 9. Further in Reply to Section 9 Corporate Debtor can bring the material to indicate that there are pre-existing disputes in existence prior to issuance of demand notice under Section 8. Mere fact that Reply to notice under Section 8 (1) having not been given within 10 days or no reply to demand notice having been filed by the Corporate Debtor does not preclude the Corporate Debtor to bring relevant materials before the Adjudicating Authority to establish that there are pre-existing dispute which may lead to the rejection of Section 9 application.

Reply to Demand Notice under Section 8(1) of IBC having not been given within 10 days or no reply to demand notice having been filed by the Corporate Debtor does not preclude the Corporate Debtor to raise the issue of Pre-Existing Dispute before the Adjudicating Authority – M/s. Brand Realty Services Ltd. Vs. M/s. Sir John Bakeries India Pvt. Ltd. – NCLAT New Delhi Read Post »

Without a final decision on the prayer for restoration of an appeal under Section 37 of the Arbitration Act, the insolvency process at the instance of an operational creditor cannot be put into operation – M/s Jai Balaji Industries Vs. D.K. Mohanty & Anr. – Supreme Court

Important judgment on dispute, arbitration vs IBC, Doctrine of Relation Back etc.

Without a final decision on the prayer for restoration of an appeal under Section 37 of the Arbitration Act, the insolvency process at the instance of an operational creditor cannot be put into operation – M/s Jai Balaji Industries Vs. D.K. Mohanty & Anr. – Supreme Court Read Post »

There exists a dispute between the parties which are prior to issuance of Demand Notice, neither the Adjudicating Authority nor this Appellate Tribunal, in summary jurisdiction, can go into those issues which otherwise require a regular trial – M/s. M + R Logistics (India) Private Limited Vs. M/s AGA Publications Limited – NCLAT New Delhi

NCLAT referring Mobilox Innovations case held that As per the decision of the Hon’ble Apex Court, the Corporate Debtor (Respondent in this case) must bring to the notice of Operational Creditor, the existence of a dispute and/or the record of the pendency of a suit or arbitration proceeding filed before the receipt of such notice or invoice in relation to such dispute. In the present case, the Respondent very well brought to the notice of the Appellant with regard to the existence of dispute much prior to filing Section 9 Application. Therefore, the Judgment of Hon’ble Apex Court squarely applicable to the facts of present Case.(p20)

There exists a dispute between the parties which are prior to issuance of Demand Notice, neither the Adjudicating Authority nor this Appellate Tribunal, in summary jurisdiction, can go into those issues which otherwise require a regular trial – M/s. M + R Logistics (India) Private Limited Vs. M/s AGA Publications Limited – NCLAT New Delhi Read Post »

IBC is not intended to be substitute to a recovery forum & whenever there is existence of real dispute, the IBC provisions cannot be invoked – Text of judgment Transmission Corporation Of Andhra Pradesh Limited Vs. Equipment Conductors And Cables Limited – Supreme Court

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IBC is not intended to be substitute to a recovery forum & whenever there is existence of real dispute, the IBC provisions cannot be invoked – Text of judgment Transmission Corporation Of Andhra Pradesh Limited Vs. Equipment Conductors And Cables Limited – Supreme Court Read Post »

Whether filing of a petition under Section 34 of Arbitration and Conciliation Act, 1996 against an Arbitral Award amounts to a pre-existing dispute for filing of Section 9 application under Insolvency and Bankruptcy Code, 2016 – K. Kishan vs. M/s Vijay Nirman Company Pvt. Ltd. – Supreme Court

The filing of a Section 34 petition against an Arbitral Award shows that a pre-existing dispute which culminates at the first stage of the proceedings in an Award, continues even after the Award, at least till the final adjudicatory process under Sections 34 & 37 has taken place

Whether filing of a petition under Section 34 of Arbitration and Conciliation Act, 1996 against an Arbitral Award amounts to a pre-existing dispute for filing of Section 9 application under Insolvency and Bankruptcy Code, 2016 – K. Kishan vs. M/s Vijay Nirman Company Pvt. Ltd. – Supreme Court Read Post »

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