Landmark Judgments by the Hon’ble NCLAT 16th to 30th September, 2021
- Velu Chairman, Monitoring Committee RP For Palm Lagoon Backwater Resorts Pvt. Ltd. vs. Invent Assets Securitisation & Reconstruction Pvt. Ltd.
In the instant matter it was held by the Hon’ble NCLAT that if the time period of 330 days of the corporate insolvency process resolution is complete and the Resolution Applicant fails to implement the approved resolution plan, the Adjudicating Authority ought to pass the appropriate Order of Liquidation as per the provisions of the Insolvency and Bankruptcy Code, 2016.
The present application was preferred before the Appellate Authority after the Adjudicating Authority observed that the NCLT cannot either order Liquidation or direct the refund of the EMD, as the Tribunal became Functus Officio after approval of the Resolution Plan with the consent of both the parties. The Tribunal observed that it cannot exercise its powers under Section 60(5) of the Code, 2016 and recall its own Orders.
Consequently, Hon’ble NCLAT while setting aside the impugned order held that according to Sub Section 3 of Section 33, the Appellant rightly moved the Application under Section 60(5) read with Section 33 of the Code, 2016 praying the Adjudicating Authority to pass an Order of Liquidation of the Corporate Debtor for the reason that the Resolution Applicant did not implement the plan as mandated by the Code.
Link: https://ibbi.gov.in//uploads/order/4a8a08f09d37b73795649038408b5f33.pdf
- Telangana State Trade Promotion Corporation vs. A.P. Gems & Jewellery Park Pvt. Ltd. & Anr.
In the present case, Hon’ble NCLAT replied on the decision of the Hon’ble Supreme Court in the matter Phoenix ARC Pvt. Ltd. v. Spade Financial Services Ltd. & Ors. held that it must be borne in the mind that the expression ‘control’ in Section 29A(c) of the Code symbolizes only the positive control i.e. that the mere power to block special resolutions of a Company cannot amount to control.
The factual matrix of the case involves the Appellant that had submitted its claims based on a loan agreement before the Resolution Professional which was admitted. However, later the Adjudicating Authority came to the conclusion that the Appellant is a related party.
Accordingly, the present application was dismissed.
Link: https://ibbi.gov.in//uploads/order/8277e0910d750195b448797616e091ad.pdf
- Indrani Brahmachari vs. Mr. Chandra Prakash RP M/s. Granite Gate Properties Pvt. Ltd.
In the present matter, it was held by the Hon’ble NCLAT that for a corporate debtor whose CIRP is initiated, if any prior contractual arrangement has not been proved, it cannot be forced to continue with the same treatment.
It was observed by the Appellate Tribunal that the arrangement of accommodating in alternate premises is not part of Builder Buyer Agreement or any subsequent Agreement to make Corporate Debtor liable to maintain Appellant in a rented/alternate premises. Thus linking the arrangement so as to bind Corporate Debtor under Contract is not there. Even if some arrangement is made for the Appellant in the alternate premises and he undertook to pay the rent, the question is whether such arrangement with one of the allottee can be allowed to be continued to make the Corporate Debtor liable to go on paying the rent once CIRP is initiated. If the Resolution Professional is directed to continue to pay the rent, it would be giving preferential benefit to one of the allottees. Parties have not brought on record anything to show that all the allottees of the Corporate Debtor in CIRP are being given any such preferential treatment. It would not be in consonance with the scheme of IBC.
Accordingly, when CIRP has been initiated, the Corporate Debtor with whom no prior contractual arrangement is proved, cannot be forced to continue with the same treatment. For the same reasons, the present appeal against the impugned order of the Adjudicating Authority was dismissed.
Link: https://ibbi.gov.in//uploads/order/ff7a044a1d3485c9331295a8ea37d765.pdf
- CoC of Wind World (India) Ltd. vs. Suraksha Asset Reconstruction Ltd.
In the instant case it was held by the Hon’ble NCLAT that a Successful Resolution Applicant (SRA)cannot be allowed to withdraw the resolution plan after it had been approved by the committee of creditors (CoC).
The SRA filed an application before the adjudicating authority to withdraw the Resolution Plan post approval by the CoC which was allowed by the adjudicating authority. The Resolution Professional was further directed to Professional to return the performance security given by the Resolution Applicant by way of Bank Guarantee. Aggrieved by this impugned order, the CoC preferred this appeal before the Hon’ble NCLAT.
Relying on the decision of the Supreme Court in the matter of Ebix Singapore Pvt. Ltd. Vs. CoC of Educomp Solutions Ltd. & Anr wherein it was held that the Adjudicating Authority had no jurisdiction to rely on residuary powers of Section 60(5)(c) to entertain the application of SRA. It was further observed that a Resolution Applicant is deemed to be aware of the IBC and its mechanism. The Resolution Applicant, after obtaining the financial information of the Corporate Debtor through the informational utilities and perusing the IM, is assumed to have analysed the risks in the business of the Corporate Debtor post which it submits a considered proposal. After the plan has been approved, the SRA could not be heard making the complaints regarding incomplete to withdraw from the Resolution Plan. The grievance appears to be made just to raise a petit ground.
The appeal was disposed of accordingly.
Link: https://ibbi.gov.in//uploads/order/4a615e922ee017a7c2bec644d265104d.pdf