Other-Service of a Notice

Can a single person CoC approve Resolution Plan? – Jaykay Enterprises Ltd. Vs. National Oil Company Ltd. – NCLT Kolkata Bench

In this important judgment, NCLT Kolkata Bench held that:

(i) The right regarding the land has not been defined, and it is not under our jurisdiction to decide upon the matter.
(ii) The Resolution Professional is in no fault at not providing the information provided in the Information Memorandum to the application as the Applicant is not a member of the Committee of Creditors or a prospective Resolution Applicant, hence it is not entitled to the Information Memorandum.
(iii) The word “Committee” has not been defined in the Part 1 or Part 2 of the Code which deals with Insolvency Resolution and Liquidation for Corporate Persons.
(iv) There can be no meeting when a single person represents CoC (since other persons who attended are only invitees in this case and they don’t form part of CoC) and consequently, “meeting” cannot been held as contemplated under Section 24 of the Code.
(v) There can be no two view that stake holders in a CIRP process is not restricted only to financial and operational creditors.
(vi) A decision to approve the resolution plan by the CoC should be in a validly convened and conducted CoC meeting.
(vii) The resolution plan is sent back to the CoC.
(viii) Once the Resolution Plan is approved by the Adjudicating Authority, then it will no more be a confidential document.
(ix) The Workers’ Union have no locus standi to question the assignment of a debt by Bank.

Can a single person CoC approve Resolution Plan? – Jaykay Enterprises Ltd. Vs. National Oil Company Ltd. – NCLT Kolkata Bench Read Post »

NCLAT upholds admission of IBC Sec. 10 application and issue of applicability of moratorium where aircrafts leases were terminated prior to admission of Section 10 application need to be considered by NCLT – SMBC Aviation Capital Ltd. Vs. Interim RP of Go Airlines (India) Ltd., Abhilash Lal – NCLAT New Delhi

NCLAT upheld the decision of NCLT in Go Airlines (India) Ltd. and held that (i) the mere fact that no notice was issued to the creditors or any opportunity was given to the objectors before proceeding to hear, the Corporate Applicant, cannot be held to vitiate any procedure or violating the principles of natural justice, more so when objectors were heard by the Adjudicating Authority. (ii) In appropriate case where there is an Application under Section 65 of the Code before the Adjudicating Authority, the Adjudicating Authority after initiation of proceedings under Section 10 and before passing any order on Section 10 Application notices that initiation is fraudulent and malicious, the Adjudicating Authority is well within its jurisdiction to consider the Application and if it is held and found that initiation is fraudulent and malicious, the Adjudicating Authority is fully entitled to reject the said Application.
Further, NCLAT directed that (i) The Appellant(s) as well as IRP are at liberty to make appropriate Application before the Adjudicating Authority for declaration with regard to applicability of the moratorium on the aircrafts with regard to which Leases in favour of the Corporate Applicant were terminated prior to admission of Section 10 Application, which Application need to be considered and decided by the Adjudicating Authority in accordance with law.
(ii) The Appellant(s) and the IRP are also at liberty to make an appropriate Application under Section 60, sub-section (5) with regard to claim of possession and other respective claims of both the parties relating to the aircrafts in question, which need to be decided by the Adjudicating Authority in accordance with law.

NCLAT upholds admission of IBC Sec. 10 application and issue of applicability of moratorium where aircrafts leases were terminated prior to admission of Section 10 application need to be considered by NCLT – SMBC Aviation Capital Ltd. Vs. Interim RP of Go Airlines (India) Ltd., Abhilash Lal – NCLAT New Delhi Read Post »

Summary of Go Airlines insolvency judgement under Section 10 of IBC – Go Airlines (India) Ltd. – NCLT Principal Bench

The Adjudicating Authority admitted the CIRP application u/s 10 of IBC and held that: (i) before the commencement of CIRP, an Application under Sections 7 and 9 are in personam i.e., a litigation between two parties, where notice to the Respondent/Corporate Debtor is a matter of right.
(ii) no express provision in the law, which necessitates the issue of notice or service of a copy of the Section 10 Application to the Creditor(s).
(iii) in Section 10 proceedings, though there is no mandatory requirement of issuing notice to the Creditor(s) at the pre-admission stage, rather giving notice to the Creditor(s) is a matter of discretion to be exercised on a case-to-case basis on valid grounds. Wherever there is a clear apprehension of deterioration of assets of the Corporate Applicant/Debtor and larger public interest is involved, issuance of notice at the pre-admission stage cannot be claimed as a matter of right.
(iv) Section 65 only uses the word “initiates”, and does not make any distinction like the stage of pre-admission or post-admission of CIRP.
(v) Section 65 of IBC can be resorted by an aggrieved party at any stage, be it pre-admission or post-admission. Accordingly, we conclude that there is no bar in entertaining/considering/adjudicating a Section 65 Application after the initiation of the CIRP.
(vi) The IRP also shall ensure that retrenchment of employees is not resorted to as a matter of course. In any event, any such decision/event should be brought to the attention of this Adjudicating Authority.

Summary of Go Airlines insolvency judgement under Section 10 of IBC – Go Airlines (India) Ltd. – NCLT Principal Bench Read Post »

The authenticity of the postal stamps on the postage receipts are not the subject matter which can be decided by the Adjudicating Authority or this Tribunal in view of summary jurisdiction having been conferred on them by the IBC – B.C.P.L. International Ltd. Vs. Kalimata Ispat Industries Pvt. Ltd. – NCLAT New Delhi

NCLAT held that the authenticity of the postal stamps on the postage receipts are not the subject matter which can be decided by the Adjudicating Authority or this Tribunal in view of summary jurisdiction having been conferred on them by the IBC. Enquiry into such allegations and counter-allegations would entail detailed investigation and the legislative intent of the IBC does not clothe the Adjudicating Authority with such powers of investigation. We are thus of the considered view that the Adjudicating Authority has not committed any error by restraining itself from entering into any sort of roving enquiry on this issue.

The authenticity of the postal stamps on the postage receipts are not the subject matter which can be decided by the Adjudicating Authority or this Tribunal in view of summary jurisdiction having been conferred on them by the IBC – B.C.P.L. International Ltd. Vs. Kalimata Ispat Industries Pvt. Ltd. – NCLAT New Delhi Read Post »

When disbursement of loan is not even denied, loan Agreement was forged has no weight – Surpreet Singh Suri Vs. Pragati Impex India Pvt. Ltd. – NCLAT New Delhi

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When disbursement of loan is not even denied, loan Agreement was forged has no weight – Surpreet Singh Suri Vs. Pragati Impex India Pvt. Ltd. – NCLAT New Delhi Read Post »

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