July 3, 2021
Summaries of the noteworthy orders passed by the various NCLT benches in IBC matters ~ By Aaryan Mohan & Vinisha Jain
June 29, 2021
Rule 11 of the NCLT Rules will Apply for Withdrawal of CIRP before Constitution of CoC: Sintex Plastics Technology Ltd. v. Zielem Industries Pvt Ltd. & Anr.
The Corporate Debtor (“CD”) was a wholly owned subsidiary of M/s Sintex Plastics Technology Ltd. (“the Applicant”) in the case. The Applicant filed an application for withdrawal of the Corporate Insolvency Resolution Process (“CIRP”) initiated under Section 9 against CD, under Rule 11 of the NCLT Rules, 2016 and Section 60(5) of the Code.
The Applicant settled the claim of the Operational Creditor who had filed the application immediately after admission of the Section 9 application and approached NCLAT for closing CIRP. The NCLAT redirected it to NCLT.
The major basis of the Applicant’s case was the view taken in Swiss Ribbons & Ors. v. Union of India & Ors. wherein the Hon’ble Supreme Court held that a CD may take the opportunity to take an exit from CIRP under Rule 11 of the NCLT Rules, 2016 when CoC has not been constituted. Section 12A does not apply in a pre-constitution situation, as under that section, withdrawal of the application can be made only after approval of 90% of voting share of CoC. Therefore, the only recourse left with the Applicant is under Rule 11 of the NCLT Rules, 2016.
The Respondent and the intervening Financial Creditors cited Regulation 30A of the CIRP Regulations which requires an application of withdrawal to be made through RP or IRP. However, the NCLT rejected the argument relying on the judgement in Brilliant Alloys Private Limited v. S. Rajgopal & Ors. and Jogendra Kumar Arora v. Dharmendra Sharma & Ors. In both these cases, Regulation 30A was held to be only directory and not mandatory.
This judgement appears to maintain the established position that Rule 11 of the NCLT Rules is to be resorted to pre-constitution of CoC, and Section 12A is to be resorted to post-constitution. Further, that locus standi of stakeholders like a promoter-cum-shareholder is not affected by Regulation 30A, which requires a CD to proceed through an IRP or RP.
June 30, 2021
Avoidance Applications Disappear if a Resolution Applicant Beats it to the Chase: TUF Metallurgical Pvt. Ltd. v. Albus India Ltd.
The Applicant was the successful resolution applicant and was also a financial creditor of the CD, Albus India Ltd. CIRP was initiated under Section 7 of the Code. Due to certain apprehensions regarding conduct of the CD, the RP was authorized by the CoC to appoint a forensic auditor. There were two contradictory reports of the forensic auditor, one in 2019 alleging fraudulent transactions and another in 2020 stating that no deviant transactions were made. An avoidance application was filed by the Resolution Professional under Section 43 of the Code, which was also pending before the Tribunal.
The NCLT, heavily relying on the judgement of Delhi High Court in Venus Recruiters Pvt Ltd v. Union of India, reiterated the dictum that it does not have jurisdiction to adjudicate upon avoidance applications once the CIRP comes to an end.
June 30, 2021
Can a Director of a MSME File a Belated Resolution Plan? Dhanalakshmi Bank Limited v. Trivandrum International Health Services Ltd
The resolution process in this case had already availed many extensions. The director sought the CoC’s permission to table his resolution plan past the date for Expression of Interest. Not entirely opposed to the proposition, the Resolution Professional invoked the inability of the CoC to go beyond the mandate of the Code and asked the director to secure appropriate directions from the NCLT, and to file a resolution plan within the timeline specified by the CoC. However, the timeline was not adhered to by the director.
The director invoked the jurisdiction of the NCLT, and furthered a two-pronged case for his eligibility – first: exceptions to Section 29A for MSMEs (Section 240A) would allow him to file a resolution plan, and second: he had received the MSME Udhayam Registration certificate, which enabled the classification of his enterprise as an MSME. The NCLT allowed the director to file a resolution plan within a week.
However, the order does not mention the extension of the last date for accepting Expression of Interest, as mentioned in form G (Regulation 36A (1) of the Insolvency and Bankruptcy (Insolvency Resolution Process for Corporate Persons) Regulations, 2016), and fails to uphold the sanctity of the process, due to a lack of procedural compliance.
June 28, 2021
A Rather Lenient Prospect of Restructuring after Commencement of Liquidation. Goodwin Packpet Private Limited v. Mr. Balakrishnan Baburajan
The applicant corporate debtor’s operation was to be liquidated as per NCLT’s order dated 11.01.2021. However, in accordance with the agreement of all stakeholders, the promoters were allowed to table a plan for restructuring under Section 230 of the Companies Act, 2013, read with Regulation 2B of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016, which requires such a restructuring or compromise to be completed before 90 days from the date of commencement of liquidation.
In this case the applicant corporate debtor requested an extension of the 90-day period, by 45 additional days. The NCLT referred to the JJ Irani Report, which advocates for a flexible approach allowing smooth procedural transitions, and the NCLAT’s holding in S.C. Sekaran vs. Amit Gupta and Ors, which encourages the use of Section 230 of the Companies Act and extended the 90-day period with another 30 days.
June 30, 2021
See also: The South Indian Bank Ltd v. M/s Churakulam Tea Estates – demonstrated inability to execute the accepted resolution plan can substantiate a liquidation order under Section 33(3) and (4). In this case, the liquidation value was also greater than the approved resolution plan.
June 30, 2021
Dissolution of M/S Neutrino Power Systems Private Limited, under Section 54(1) of the Code.
June 30, 2021
Initiation of liquidation proceedings against: Lanco Vidarbha Thermal Power Limited.
June 30, 2021
Sale of Vishwa Infrastructures and Services Pvt. Ltd. as a going concern.
We talk to Dr. M. S. Sahoo, the IBBI Chairperson and the flag-bearer of the Indian insolvency and restructuring industry, on a variety of issues.July 12, 2021
In the matter of GNB Technologies (India) Private Limited (Bengaluru Bench (08.11.2019)) Facts M/s. GNB Technologies (India) Private Limited (CD) filed an application under Section 10 read with Section 33 of the Code before the NCLT, Bengaluru Bench, seeking to initiate the CIRP process against itself. It submitted that it had become insolvent with […]December 22, 2021
A summary of the Supreme Court judgment in the matter of Innoventive Industries v Union of India ~ By Sara JainJune 23, 2021
Abbreviations Used Code – Insolvency and Bankruptcy Code, 2016 CIRP – Corporate Insolvency Resolution Process AA – Adjudicating Authority (NCLT) CD – Corporate Debtor FC – Financial Creditor OC – Operational Creditor CoC – Committee of Creditors IRP – Interim Resolution Professional RP – Resolution Professional RA – Resolution Applicant FY – Financial Year – […]September 6, 2021
In the matter of Chemizol Additives Pvt. Ltd. (Bengaluru Bench (08.06.2020)) Facts In this case, the OC filed an application under Section 9 of the Code seeking initiation of CIRP against the CD on the ground of failure of payment of employment dues. The tribunal noted that the Employment Agreement between the parties stated […]December 22, 2021
Summaries of the noteworthy orders passed by the various NCLT benches in IBC matters ~ By Aaryan Mohan & Vinisha Jain AHMEDABAD BENCH June 29, 2021 Rule 11 of the NCLT Rules will Apply for Withdrawal of CIRP before Constitution of CoC: Sintex Plastics Technology Ltd. v. Zielem Industries Pvt Ltd. & Anr. The Corporate […]July 3, 2021