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Landmark Judgments by the Hon’ble NCLAT 16th to 31st July, 2021

  1. Jain Irrigation Systems Limited v. Empee Sugars and Chemicals Limited (DOJ: 15 July 2021)

In the present case, an appeal was filed before the Appellate Authority against the order of Adjudicating Authority dismissing the application of condonation of delay. The appellant, an operational creditor filed an application under section 9 of the Code, 2016 against the Corporate Debtor which was beyond the limitation period. The Appellant invoked Section 5 of the Limitation Act, 1963 for the condonation of 311 days in which 77 days were to be excluded owing to the lockdown.

As per section 238 of the Code, the provisions of the Limitation Act will be applicable for the application filed under sections 7, 9 or 10 for the initiation of CIRP. Corollary, Article 137 of the Code also gets attracted. It is to be noted that the ‘condonation of delay’ cannot be claimed as a matter of right. It is a matter of ‘discretion’ of the ‘Court’/‘Tribunal’. The Hon’ble NCLAT was not subjectively satisfied as to the occurrence of the long and inordinate delay of 241 days and therefore, was not inclined to extend based on the facts and circumstances of the case. The appeal was accordingly dismissed without any cost.

Judgment Link: https://bit.ly/3fdrcsI

 

  1. Deputy Commissioner, CGST Kalol, Gujrat v. M/s Gopala Polyplast Ltd (DOJ: 16 July 2021)

In the instant appeal, the appellant sought interference with the approved resolution plan on the grounds of an inadequate amount of settlement. The Appellant was an operational creditor of CD with the admitted claim of Rs. Rs.2,36,67,282/-. In the Resolution Plan approved by the Committee of Creditors provision of only Rs.1,18,336/- as full and final settlement of the dues of the Appellant.

The Appellate Authority while relying on the judgment of the Hon’ble Supreme Court in Ghanashyam Mishra and Sons Private Limited vs. Edelweiss Asset Reconstruction Company Limited & Others, held that approved Resolution Plan is binding on the Central Government, State Government, any local authority, Guarantors and other stakeholders. Sufficiency or insufficiency of the amount is a matter of Commercial Decision of the Committee of Creditors. It would not be appropriate to interfere with the same. Hence, the appeal was disposed of with no cost.

Judgment link: https://bit.ly/2WuswRd

 

  1. NTPC Limited v. Ram Ratan Modi (DOJ: 19 July, 2021)

 

The instant appeal was preferred by the Applicant against the impugned order which only partially allowed its claim. Earlier, at the time of CIRP, the appellant had filed its claim under the heading of ‘other creditors’ under Form-F. Subsequently, when the Corporate Debtor went into liquidation, the Appellant filed its claim under Form-G to the liquidator which was rejected due to an already existing counter claim. The appellant contended that it was a matter of calculation for the Liquidator. It was required of him to process the claims submitted in Form ‘G’ by the Appellant as claim by “Other Stakeholder”.

Hon’ble NCLAT observed that claim made by the Appellant was a matter of working out exact amount which was to be assessed at the risk and cost of the Corporate Debtor. With such documents being on record, it was inappropriate on the part of the Liquidator to reject the claim. The Hon’ble Tribunal found that the Liquidator has avoided performing the duty as was required to be performed under the Code and the Regulations. Thus, the liquidator is directed to process claim of the Appellant as ‘other creditor’ and arrive at best estimate of the amount of claim made by the Appellant and give the necessary benefit to the Appellant. The Appeal was disposed of, accordingly.

 

Judgment link: https://bit.ly/3rL2rci

 

  1. Anil Kumar v. Allahabad Bank and Others (DOJ: 20 July, 2021)

 

In the present case, the appellant has approached the Hon’ble NCLAT on being aggrieved by the impugned order wherein the Adjudicating Authority appointed a new IRP replacing the appellant. The issue was whether the order passed by the Adjudicating Authority can be sustained in law, as Learned Tribunal did not exercise the powers conferred under Section 22 and 27 and instead passed the order under Rule 11 of the NCLT Rules. The Hon’ble NCLAT held that when it comes to Section 22 and Section 27, these powers can only be used when the ingredients of Section 22 are met. As per the factual matrix of the present matter, the ingredients of section 22 and 27 were not made out.

The Appellate Tribunal held that the Adjudicating Authority have rightly invoked inherent jurisdiction in the fact of this case and passed the said impugned order. Due to the incapacity of IRP and the timeline of CIRP proceedings running out, the Adjudicating Authority in order to shape the CIRP have rightly passed the impugned order. Accordingly the appeal was dismissed with no costs.

 

Judgment link: https://bit.ly/3xkmMWR

 

  1. 63 Moons Technologies Limited vs. The Administrator of Dewan Housing Finance Corporation Limited (DOJ: 23 July, 2021)

 

Hon’ble NCLAT in the instant matter held that benefit of any orders passed in the avoidance application filed or to be filed by the Administrator under Sections 43 to 51 or under Section 66 of the Code shall be for the benefit of Successful Resolution Applicant or Creditors of Corporate Debtor.

The present appeal was preferred against the impugned order wherein Adjudicating Authority rejected the application seeking rejection of the resolution plan. The legal issue involved was whether the successful resolution applicant can appropriate recoveries, if any, from avoidance applications filed by Administrator under Section 66 of the Code. The appellants heavily relied on the judgment of M/s Venus Recruiters Private Limited vs. UOI & Ors to which this court opined that the said judgment was misplaced in the current situation. In the case of Venus Recruiters, the CoC had no opportunity to deal with the question as to how the benefits from the avoidance applications are to be treated. However, in the present matter, the CoC held a detailed deliberation on provisions for dealing with proceeds from avoidable transactions under Section 66 of the Code.

Consequently, it was observed that once there has been a thorough discussion and a decision is taken by majority of CoC members, the same is not open for deliberations specially in the context where the Appellant has voted in favour of the Resolution Plan in the group to which the Appellant belonged. Thus, the Hon’ble NCLAT held that any interim order as sought with regard to approved Resolution Plan shall not be passed and accordingly the Applications stand disposed of.

 

Judgment link: https://bit.ly/3jeIl6g

 

 

 

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