Claim/CIRP Initiation-Multiple CIRP/Claim against one Debt

Can Insolvency proceedings under Section 7 of IBC be initiated against an Auction Purchaser in proceedings under SARFAESI Act, 2002? | Can Creditors/ Allottees file claim in CIRP of Borrowers as well as Auction Purchaser? – Anjani Kumar Prashar Vs. Manab Datta and Ors. – NCLAT New Delhi

Hon’ble NCLAT held that:
(i) The definition of Financial Creditor means that any person to whom a financial debt is owed and includes a person to whom such debt has been legally assigned or transferred to. The crucial word in the definition is “any person to whom a financial debt is owed” becomes a Financial Creditor. Further, the expression “includes a person to whom such debt is legally assigned or transferred to” is only incidence of further elaboration of person to whom the financial debt is owed.
(ii) The financial debt can be owed in more than one manner. Assignment or transfers are two modes, which has been expressly included in the definition. In cases of amalgamation and demerger under the Companies Act, 2013 of a Corporate Debtor with another entity is obviously considered as Corporate Debtor on account of transfer/ vesting of assets and liabilities to the amalgamated/ transferee Company. Transferee Company cannot be permitted to escape the rigours of the Code by claiming that disbursement was not done to it directly.
(iii) In the present case, where Grandstar Reality Pvt. Ltd. has taken over the Project under the SARFAESI Act, cannot escape the rigours of the Code and defeat the rights of the homebuyers under the Code. There is a financial debt and the filing of the Application by the allottees under Section 7 cannot be faulted on this ground.

Can Insolvency proceedings under Section 7 of IBC be initiated against an Auction Purchaser in proceedings under SARFAESI Act, 2002? | Can Creditors/ Allottees file claim in CIRP of Borrowers as well as Auction Purchaser? – Anjani Kumar Prashar Vs. Manab Datta and Ors. – NCLAT New Delhi Read Post »

Whether when an application is filed against a Personal Guarantor whether another Lender of same transaction can proceed against the Personal Guarantor by filing another application under Section 95 of IBC – Bhavesh Gandhi Vs. Central Bank of India – NCLAT New Delhi

NCLAT held that when an insolvency resolution process commences against the Personal Guarantor all creditors of the Personal Guarantor are taken care of in the proceedings under Chapter-III. The scheme of Code does not contemplate manifold applications against same Personal Guarantor by different lenders. Multiplicity of applications against same Personal Guarantor is not contemplated under Chapter III. When the insolvency resolution process commences against a Personal Guarantor, claims of all creditors are taken care of under the scheme of the Code. Further, it is held that creditors of the Personal Guarantors who are unable to file an application due to enforcement of moratorium under Section 96 can very well avail the benefit of period during which moratorium continues, hence, due to interim moratorium enforced by Section 96, the creditors like Central Bank of India and other creditors are in no manner prejudiced. If they have not filed any application during moratorium period, they have every right to file application and for computation of the period of limitation, period during which moratorium is in place is to be excluded.

Whether when an application is filed against a Personal Guarantor whether another Lender of same transaction can proceed against the Personal Guarantor by filing another application under Section 95 of IBC – Bhavesh Gandhi Vs. Central Bank of India – NCLAT New Delhi Read Post »

The liabilities of the corporate debtor and the co-borrower companies are joint and co-extensive in nature and that claims of similar amounts could be submitted by the financial creditor in all the CIRPs – Mr. Sandeep Garg Director, M/s Abloom Infotech Pvt. Ltd. Vs. M/s DMI Finance Pvt. Ltd. – NCLAT New Delhi

The main dispute raised by the Appellant is that there are CIRPs going on against two other co-borrowers viz Ninex Developers and Red Topaz Real Estate companies on the basis of the same loan agreement, and hence the section 7 application against Abloom Infotech is not maintainable.
NCLAT holds that when the liabilities of the principal borrower and surety are co-extensive under an agreement, it stands to reason that the liabilities of co-borrowers who have equal and similar liabilities under a loan agreement will also be there and CIRPs against them can run simultaneously. Moreover, till the financial creditor is able to get payment of his claim, he can file claim in all the CIRPs and also have voting rights in the respective CoCs based on the quantum of his financial debt. Thus we infer that the liabilities of the corporate debtor and the co-borrower companies are joint and co-extensive in nature and that claims of similar amounts could be submitted by the financial creditor in all the CIRPs.

The liabilities of the corporate debtor and the co-borrower companies are joint and co-extensive in nature and that claims of similar amounts could be submitted by the financial creditor in all the CIRPs – Mr. Sandeep Garg Director, M/s Abloom Infotech Pvt. Ltd. Vs. M/s DMI Finance Pvt. Ltd. – NCLAT New Delhi Read Post »

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