IBC

1. Union Bank of India vs. Mr. Kapil Wadhawan & Ors. (DOJ: 01.02.2022)

In facts of present case, the issue that arose consideration before Hon’ble NCLAT was whether after Approval of the resolution plan by the Committee of Creditors and pending Approval by NCLT, can NCLT direct the CoC to convene a meeting and place settlement proposal for consideration, decision and voting on that within a certain period. The Hon’ble NCLAT relying on the ratio of Judgement of the Hon’ble Supreme Court in the case of Ebix Singapore Private Limited Vs. Committee of Creditors of Educomp Solutions Ltd. held that there is no scope for negotiations between the parties once the CoC has approved the Resolution Plan. The contractual principles and common law remedies, do not find a rope in the wording or the intent of the Code and cannot be imported in the intervening period between the acceptance of the CoC approved Resolution Plan and the Approval by the NCLT. The Hon’ble NCLAT further observed that neither the NCLT nor the Appellate Authority have unchartered jurisdiction under the section 31(1) of the Code and there jurisdiction is  limited to see whether Resolution Plan has been passed fulfilling the requirements of section 31(2).

Link: https://ibbi.gov.in//uploads/order/2387ab80e241c33495dc1798102c258c.pdf

2. Transit Geo System Integrators Pvt. Ltd. Vs. Stahl Tecniks Pvt. Ltd. (DOJ: 03.02.2022)

In facts of instant case, Appellant filed an application under section 9 of the Code claiming recovery of the amount from Corporate Debtor due to reason that Form C was not supplied to him due to which tax liability was fastened on by the Sales Tax assessment order dated 28.03.2017. In the Sales Tax assessment order, liability was fastened against the Appellant by assessment order dated 28.03.2017 under which he has to make the payment to Sales Tax due. NCLT rejected the Application on ground that the application was nothing but claim of recovery of difference between concessional payment and payment of Sales Tax which has made under the assessment order. The Hon’ble NCLAT relying on the judgment of Hon’ble Supreme Court in the matter of Swiss Ribbons Pvt. Ltd. Vs. Union of India held that Section 9 proceedings are not envisaged for such kind of claims and it is well settled that IBC is not a recovery proceeding. In event, if the Appellant has any claim against the Corporate Debtor regarding sales tax dues, it is open for them to take such proceeding as may be permissible but present was not a case where Section 9 proceedings ought to have been initiated.

Link: https://efiling.nclat.gov.in/nclat/order_view.php?path=

3. Himalayan Crest Power Pvt. Limited vs. Pankaj Khaitan (DOJ: 04.02.2022)

In facts of instant case, the Appellant filed its claim before the Resolution Professional under Form C to the tune of Rs. 10,46,64,5558/- (Rs. 4,82,93,938/- as Principal Amount and Rs. 5,63,67,620/- as Interest Component from 2010 till 2019, being CIRP commencement date). The RP only admitted the claim towards Principal amount and rejected the interest by stating that interest amount was not booked by the Corporate debtor in its books of accounts and no TDS was deducted by the Corporate Debtor. Ld. NCLT affirmed the rejection of RP. Hence the present Appeal was filed to re-examine the law relating to limitation and reconsider the claim of the Appellant on the aspect of interest amount.

The Hon’ble NCLAT upon perusal of all documents observed that interest for the period of 2010 to 2019 was neither reflected in Audited Financial statements of Corporate Debtor or the Appellant, data provided by the ex-management also does not match the amount of claim for interest. Further, the interest was never booked as an expense/income by Corporate Debtor of Appellant and TDS was neither deducted nor claimed by Corporate Debtor or Appellant. Thus, the Loan Agreement being basis for claiming interest is bogus. The Hon’ble Tribunal further relying on the ruling of the Supreme Court in the case of Urvashi Aggarwal Vs. Kushagr Ansal, held that silence maintained by the Appellant for more than 9 year amounts to abandonment in recognising of interest dues.

Link: https://ibbi.gov.in//uploads/order/5542cb72aae5cfac080df2c87b6a0afe.pdf 

4. Writer Business Services Pvt. Ltd. & Anr. Vs. Mr. Ashutosh Agrawala (DOJ: 04.02.2022)

In facts of instant case, the Resolution Professional wrote to Appellant for continuance of services provided to the Corporate Debtor as it comes under critical service, during the period of the CIRP. The Appellant refused to continue to provide services until all previous outstanding bills were cleared. The Resolution Professional filed an application seeking direction for continuation of service. The NCLT exercising its right under section 235A  of the Code, imposed a fine of Rs. 20 Lakhs.  Being aggrieved, the appellant preferred appeal contending that NCLT has committed error by imposing fine as only Special Courts have such authority as per the Section 235, on a complaint filed by Central Government or by the Board. The Hon’ble NCLAT observed that Section 235A is a provision for awarding a punishment of fine and the provision is for punishment of an offence. The trial of such offence has to be as per Section 236 on taking cognizance by Special Court by complaint made by the Board or Central Government for punishment of a person. For any offence law prescribe a procedure which broadly requires framing of charges and opportunity to answer the same. In event, it is accepted that power under Section 235A can be exercised by the NCLT while passing orders on an I.A filed for different reliefs pertaining to CIRP, the person punished with fine may be deprived of his right to answer charge of an offence. Thus, the Hon’ble Tribunal held that an act which is termed as offence within specific provision of Chapter VII of Part-II cannot be dealt by NCLT for imposing a fine.

Link: 2022-02-08-103139-pu19z-26414f3846632f4c82d397e67e510d1f.pdf (ibbi.gov.in)

5. Abhijit Jasrasaria Vs. JOP International Ltd. (DOJ: 07.02.2022)

In facts of present case the Appellant filed an Application under Section 7 of Code, claiming dues which was deposited by him towards cost of shops through Buyers Agreement dated 24.02.2009. NCLT rejected the same being time barred. The Appellant contended that since the possession has not been delivered he has continuing cause of action and his right to file Application is still continuing. The Hon’ble NCLAT observed that as per Article 137 of Limitation Act, for filing Application under Section 7 it has to be ‘within three years’ from the date when ‘right to apply accrues’. When default of a financial debt was committed on 24.10.2010 (as given in Part-IV) and no other date of default was mentioned in Application, the limitation shall not stop running merely because the possession of the shops have not been given. Thus, the Application is clearly barred by time. Further, the Hon’ble NCLAT observed that as the Appellant was not given possession of the shops by the Corporate Debtor he shall file complaint under Real Estate Regulatory Authority Act. Appeal dismissed.

Link: https://ibbi.gov.in//uploads/order/a6e4f27353b89c5b0f9c90cbd78c7203.pdf

6. Ravi Iron Ltd. Vs. Jia Lal Kishori Lal & Ors. (DOJ: 08.02.2022)

In facts of the present case the NCLT rejected Section 9 application being time barred. The claim for payment of principal amount alongwith interest was upto the year 2019 however, at Part IV of application the date of default was 10.01.2008. In appeal the Appellant contended there was a District Court Mediation in 2015 whereby the Respondent accepted its liability and issued post-dated cheques. Last cheque was dishonoured on 31.12.2016 and thus. Hence, Application filed was within time. The Hon’ble NCLAT held that an order of mediation and dishonoured cheques shall not give any extension of limitation for an Application under Section 9 of the Code to make it within time. For dishonoured cheques the Appellant shall exercise appropriate proceedings. Accordingly, the Appeal was dismissed.

Link: https://efiling.nclat.gov.in/nclat/order_view.php?path=