- Aashray Social Welfare Society & Ors. Vs. Saha Infratech Pvt. Ltd. & Ors. (D.O.J. 01.06.2022)
In the facts of the case, two financial creditors filed their claims before the IRP but the same were rejected. Thereafter, they filed an application before the Hon’ble NCLT. In the said application the homebuyers, through its Authorised Representative (AR) filed for Impleadment stating it would be against the interest of homebuyers who comprised almost 100 % of all Financial Creditors if the claims of said two Financial Creditors are considered. The Hon’ble NCLT rejected the Impleadment application and held that the AR of Homebuyers have no role in receipt or verification of the claims of creditors of the class he represents, hence the association or the allottees have role in receipt or verification of claims. Being aggrieved, an appeal was filed.
The Hon’ble NCLAT relying on the judgment of Hon’ble Supreme Court in the matter of Phoenix Arc Private Limited v Spade Financial Services Limited & Ors. observed that there is no provision in the Code that before the Adjudicating Authority it is the Authorised Representative who has to represent the creditors in a class. Authorised Representative has a limited role assigned under the statutory scheme i.e. to attend the meetings of CoC and to cast votes on behalf of the creditors in a class. As per the statutory scheme, there is no such requirement in law that the Authorised Representative shall represent the creditors in a class before the Adjudicating Authority in an adjudication. Accordingly, the appeal was allowed and Hon’ble NCLT was directed to consider the Impleadment application of the homebuyers.
- Puneet Kaur v. K V Developers Private Limited & Ors (01.06.2022)
In the instant case, the Appellants who were the homebuyers filed claims before the RP after the Resolution Plan was duly approved by the CoC. The aforesaid claims of homebuyers were rejected by the RP as being filed belatedly. Aggrieved by the same, the Homebuyers filed an application before the Hon’ble NCLT. The Hon’ble NCLT refused to entertain their belated claims. Being aggrieved, the homebuyers filed an appeal before the Hon’ble NCLAT. The Hon’ble NCLAT held that when the allotment letters were issued to the homebuyers, payments have been received, there are Homebuyers and there is an obligation on the part of the real estate Company to provide possession of the houses along with other attached liabilities. The liability towards those Homebuyers, who have not filed their claim exists and is required to be included in the Information Memorandum. Further, non-consideration of such claims, which are reflected from the record, will lead to inequitable and unfair resolution. Thus, the Hon’ble NCLAT directed the RP to submit details of Homebuyers, including their claims to the Resolution Applicant, after which the RA will prepare an addendum to the Resolution Plan to be placed before the CoC for consideration.
- Jai Vardhman Khaniz Pvt. Ltd. & Ors. Vs. Hindustan Paper Corporation Through Liquidator & Ors. (03.06.2022)
In the facts of present case, an application for extension of time for exploring a scheme of arrangement under Section 230 of the Code was filed by the liquidator. However, the Hon’ble NCLT considering that there is no scheme under Section 230, directed the liquidator to proceed further and liquidate the assets of the Corporate Debtor. Accordingly, the Liquidator issued e-auction sale notice and a bid of Rs. 375 Crore was accepted. In meanwhile, an appeal was filed by the Appellant company stating they are willing to offer a higher amount to the one which was offered by the highest bidder and prayed for setting aside of Liquidation order and quashing of e-auction notice. The Hon’ble NCLAT held that when the Application for scheme of arrangement was withdrawn, no exception can be taken and that when no Scheme could be submitted or approved under Section 230, the only option left to the NCLT is to direct the Liquidator to proceed further in the liquidation process. Further, the Hon’ble NCLAT observed that mere fact that the Appellants in this Appeal claims that they are interested to offer a higher amount to one which the Corporate Debtor has been auctioned cannot be a ground to entertain the Appeal or interfere with the impugned order.
- Ranjeet Kumar Burnwal Vs. CoC, Through Mr. Supriyo Kumar Chaudhuri, RP of Rohit Ferro-Tech Ltd. (D.O.J. 03.06.2022)
In the facts of the case, the appellant was appointed as the Executive Director of the Corporate Debtor on 21.03.2016. The Hon’ble NCLT vide order dated 07.02.2020 initiated the CIRP of the Corporate Debtor. The RP pursuant to his appointment, terminated the appointment of the Appellant due to some irregularities. In pursuance the Appellant filed an application before the Hon’ble NCLT seeking payment of leave encashment and compensation for loss of office/employment with interest. The Hon’ble NCLT held that only leave encashment shall be treated as a part of CIRP cost and rejected other compensatory claims. The Hon’ble NCLAT upholding the order of NCLT held that leave encashment shall be treated as a part of the CIRP cost. However, any other compensatory claims cannot be granted to the Appellant as the termination of the Appellant was in terms of the agreement between the appellant and the Corporate Debtor and also on sub-rule (3) of Rule 17 of Companies (Meetings of Board and its Powers) Rules, 2014.
- Partha Paul Vs. Kotak Mahindra Bank Ltd. (D.OJ. 10.06.2022)
The Hon’ble NCLAT relying on the judgment of the Hon’ble Supreme Court in the matter of Union of India & Ors. Vs. Cipla Ltd. & Anr. reiterated that the practice of Forum Shopping shall be condemned as it is an abuse of law. In the present case, the Respondent Bank approached one Court for relief but on non-obtaining of desired relief the said Bank then approached another court for the same or similar relief. Further, the Hon’ble NCLAT again relying on the judgment of Hon’ble Supreme Court in the matter of Transmission Corporation of Andhra Pradesh limited Vs. Equipment Conductors and Cables Limited observed that the provisions of the Code is not intended to be a substitute to be a recovery forum and stated that whenever there is existence of real dispute, the provisions of Code cannot be invoked. Accordingly, the matter was remanded back to the Hon’ble NCLT