SUPREME COURT

Is Resolution Professional A 'Public Servant' Under Prevention Of Corruption Act? Supreme Court To Examine

Case Title: Sanjay Kumar Agarwal v. Central Bureau of Investigation

Citation: SLP(Crl) No. 7029/2023

The Supreme Court Bench comprising Justice AS Bopanna and Justice Prashant Kumar Mishra, has issued notice in a plea challenging the ruling of the Jharkhand High Court that a Resolution Professional (RP) will be considered a ‘public servant’ under Section 2(c)(v) and Section 2(c)(viii) of the Prevention of Corruption Act, 1988 (PC Act).

The High Court had opined that the Resolution Professional performs ‘public duty’ within the meaning of Section 2(b) of the PC Act and hence is a ‘public servant’ liable to be prosecuted under the Prevention of Corruption Act (“PC Act”). The impugned judgment was passed by the High Court while rejecting the petition praying for quashing of the entire criminal proceeding instituted against an Insolvency Professional, as well as the FIR registered for the offence under Section 7 (public servant taking gratification other than legal remuneration in respect of an official act) of the PC Act.

Google Appeals To Supreme Court Against NCLAT Order Upholding Rs. 1337.76 Crores Penalty Imposed By CCI

The tech giant Google has filed an appeal before the Supreme Court, challenging the order dated 29.03.2023 passed by the National Company Law appellate Tribunal (“NCLAT”), New Delhi, whereby the imposition of Rs. 1337.76 Crores penalty on Google by the Competition Commission of India (“CCI”) was upheld. Google has been penalized for abusing its dominant position in the Android OS app store market, which resulted in denial of market access for competing search apps.

NCLAT

NCLAT Reprimands RP For Seeking Police Help For Security Of Assets Of Corporate Debtor Instead Of Private Security

Case Title: RP Modern Syntex (India) Ltd. v Supdt. of Police Anandpura, Vadodra Gujarat & Ors.

Case No.: Company Appeal (AT) Insolvency No. 682 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Naresh Salecha (Technical Member), has held for security of private property of the Corporate Debtor, the Resolution Professional cannot seek deployment of police at site. Instead, the Resolution Professional is required to hire security personnel for the said purpose and make payment to them.

“We are of the view that Resolution Professional should know that what prayers may be granted by the Adjudicating Authority and prayers which were made by the Resolution Professional requesting the Adjudicating Authority to direct deployment of police/gunmen at the site was wholly uncalled for. For security of private property, the RP has to hire security personnel for which payment has to be made for them. Prayers in the Applications were wholly inappropriate and has rightly been not considered.”

Third Party Cannot Obtain Copy Of Resolution Plan Pending Approval By AA: NCLAT Delhi

Case Title: Rupinder Singh Gill v Three C Universal Developers Pvt. Ltd.

Case No.: Comp. App. (AT) (Ins) No. 729 of 2021

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench, comprising of Justice Rakesh Kumar Jain (Judicial Member) and Dr. Alok Srivastava (Technical Member), has held that a party who is not a Claimant, Creditor or a participant in the CIRP of the Corporate Debtor, is not entitled to be given a copy of the Resolution Plan which is pending approval or rejection before the Adjudicating Authority. The IBC also does not contain any such provision.

Home Buyers Have No Right To File Intervention Application Prior To Admission Of Section 7 Petition: NCLAT Delhi

Case Title: Vikash Kumar Mishra & Ors. v Orbis Trusteeship Service Pvt. Ltd. & Anr.

Case No.: Comp. App. (AT) (Ins) No. 246 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench, comprising of Justice Rakesh Kumar Jain (Judicial Member) and Shri Naresh Salecha (Technical Member), has held that an intervention application filed by the homebuyers in petition under Section 7 of IBC is not maintainable before such petition gets admitted. The right to file such application would accrue after admission of the Section 7 petition. The homebuyers of ‘Sikka Kaamna Greens’ project had filed an intervention application supporting the case of the Corporate Debtor (Builder) that the petition under Section 7 of IBC must be rejected. Both NCLT and NCLAT rejected the application on grounds of maintainability.

Delay In Filing Of Appeal Under Section 42 Of IBC Is Condonable Under Section 5 Of Limitation Act: NCLAT Delhi

Case Title: Canara Bank v Commercial Tax Department Circle 09, Indore, Madhya Pradesh & Anr.

Case No.: Company Appeal (AT) (Insolvency) No. 655 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Barun Mitra (Technical Member), has held that delay in filing the Appeal under Section 42 of IBC is condonable in exercise of power under Section 5 of the Limitation Act, 1963.

IBC: NCLAT Five Member Bench Lays Down Grounds For Recall Of Judgment

Case Title: Union Bank of India (Erstwhile Corporation Bank) Vs. Dinkar T. Venkatasubramanian & Ors.

Case No.: CA (AT) (Ins.) No. 729 of 2020

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson), Justice Rakesh Kumar (Judicial Member), Justice Rakesh Kumar Jain (Judicial Member), Dr. Alok Srivastava (Technical Member) and Mr. Barun Mitra (Technical Member), has held that NCLAT has the power to recall its judgment by invoking inherent powers under Rule 11 of the NCLAT Rules, 2016. However, the power of recall does not include re-hearing of a case to find out any apparent error in the judgment.

“Power of recall of a judgment can be exercised by this Tribunal when any procedural error is committed in delivering the earlier judgment; for example; necessary party has not been served or necessary party was not before the Tribunal when judgment was delivered adverse to a party. There may be other grounds for recall of a judgment. Well known ground on which a judgment can always be recalled by a Court is ground of fraud played on the Court in obtaining judgment from the Court”, the Bench held.

IBC: NCLAT Has No Power To Review Its Judgment, Rules NCLAT Five Member Bench

Case Title: Union Bank of India (Erstwhile Corporation Bank) Vs. Dinkar T. Venkatasubramanian & Ors.

Case No.: CA (AT) (Ins.) No. 729 of 2020

The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson), Justice Rakesh Kumar (Judicial Member), Justice Rakesh Kumar Jain (Judicial Member), Dr. Alok Srivastava (Technical Member) and Mr. Barun Mitra (Technical Member), has held that the power of review is not conferred upon the NCLAT. However, the NCLAT has the power to recall its judgment by invoking inherent powers under Rule 11 of the NCLAT Rules, 2016.

“The power to review is not conferred upon this Tribunal but power to recall its judgment is inherent in this Tribunal since inherent power of the Tribunal are preserved, powers which are inherent in the Tribunal as has been declared by Rule 11 of the NCLAT Rules, 2016”, the Bench ruled.

NCLAT Reprimands RP For Seeking Police Help For Security Of Assets Of Corporate Debtor Instead Of Private Security

Case Title: RP Modern Syntex (India) Ltd. v Supdt. of Police Anandpura, Vadodra Gujarat & Ors.

Case No.: Company Appeal (AT) Insolvency No. 682 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Naresh Salecha (Technical Member), has held for security of private property of the Corporate Debtor, the Resolution Professional cannot seek deployment of police at site. Instead, the Resolution Professional is required to hire security personnel for the said purpose and make payment to them.

The Bench has expressed its displeasure on the prayer made by the Resolution Professional and has observed that, “We are of the view that Resolution Professional should know that what prayers may be granted by the Adjudicating Authority and prayers which were made by the Resolution Professional requesting the Adjudicating Authority to direct deployment of police/gunmen at the site was wholly uncalled for.

Since CoC Is Re-Constituted Post Approval Of Plan, It Must Be Again Examined By The New CoC: NCLAT Delhi

Case Title: Dauphin Cables Pvt. Ltd. v Praveen Bansal Resolution Professional & Ors.

Case No.: Company Appeal (AT) (Insolvency) No. 634-636 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Naresh Salecha (Technical Member), has held that when the Committee of Creditors (CoC) is re-constituted post approval of a resolution plan, due to recategorization of a creditor, then the approved resolution plan must be placed again before the reconstituted CoC for its consideration.

IBC | Sec. 9 Petition For Implementation Of Arbitral Award Is Not Maintainable: NCLAT Chennai

Case Title: M/s. KK Ropeways Limited v M/s. Billion Smiles Hospitality

Case No.: Comp. App (AT) (CH) (INS.) No. 246 / 2021

The National Company Law Appellate Tribunal (“NCLAT”), Chennai Bench, comprising of Justice M. Venugopal (Chairperson) and Ms. Shreesha Merla (Technical Member), has upheld that a petition filed under Section 9 of IBC for implementation of an Arbitral Award is not maintainable and not in tune with the objective of IBC. The Bench has further held that arbitration and IBC proceedings cannot go on together.

Avoidance Application(S) Can Continue Post Completion Of CIRP: NCLAT Delhi

Case Title: Kapil Wadhawan v Piramal Capital & Housing Finance Ltd. & Ors.

Case No.: Company Appeal (AT) (Insolvency) No. 437 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Barun Mitra (Technical Member), has held that avoidance application(s) can continue even after completion of CIRP.

The Bench placed reliance on Section 26 of IBC to interpret that proceedings of avoidance application are a different stream and do not affect the CIRP. Similarly, Section 36(3)(f) of IBC indicates that post completion of CIRP, the statute envisages recoveries through proceedings for avoidance transactions. Further, Regulation 38(2)(d) of CIRP Regulations shows the legislative intent that Resolution Plan must provide for the manner in which avoidance transactions would be pursued after approval of Plan.

Resolution Professional Empowered To Keep Claims In Abeyance: NCLAT Chennai

Case Title: Anheuser Busch Inbev India Limited v Mr. Pradeep Kumar Sravanam

Case No.: Comp. App (AT) (CH) (INS.) No. 12 / 2023

The National Company Law Appellate Tribunal (“NCLAT”), Chennai Bench, comprising of Justice M. Venugopal (Judicial Member) and Ms. Shreesha Merla (Technical Member), has held that it is within the power of the Resolution Professional to keep the claim(s) submitted by the creditors in abeyance, for plurality of reasons. The Bench has permitted the Resolution Professional to keep a claim in abeyance, in respect of which arbitration proceedings were ongoing and the Corporate Debtor’s counter claim was pending determination before the Arbitral Tribunal.

SRA Can Pursue Avoidance Application Post Completion Of CIRP, If Plan Contains A Clause To That Effect: NCLAT Delhi

Case Title: Kapil Wadhawan v Piramal Capital & Housing Finance Ltd. & Ors.

Case No.: Company Appeal (AT) (Insolvency) No. 437 of 2023

The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench, comprising of Justice Ashok Bhushan (Chairperson) and Shri Barun Mitra (Technical Member), has held that avoidance application(s) can be pursued by the Successful Resolution Applicant (“SRA”) post completion of CIRP, if the approved Resolution Plan contains a specific clause for pursuing such applications by the SRA.

Further, when a Resolution Plan specifically empowers the SRA to pursue the avoidance applications, then said provisions of the Plan shall bind everyone including the erstwhile Administrator/Resolution Professional.

NCLT

NCLT Rejects Insolvency Plea Against Eicher Motors: NCLT Delhi

Case Title: DHL Supply Chain Pvt. Ltd. v Eicher Motors Ltd.

Case No.: Company Petition No. (IB)-272(ND)2022

The National Company Law Tribunal (NCLT), Special Bench, comprising of Shri Bachu Venkat Balaram Das (Judicial Member) and Shri L. N. Gupta (Technical Member), has declined to admit Eicher Motors Ltd. into insolvency since there are pre-existing disputes between the parties.

DHL Supply Chain Pvt. Ltd. is an Indian division of Deutsche Post DHL group and is engaged in the business of logistic operations. Eicher Motors Ltd. is the listed parent of Royal Enfield motorcycles, which is the world’s oldest motorcycle brand. Eicher Motors is a multinational company with its operation in over 60 countries worldwide and its flagship product in India has been the ‘Royal Enfield Bullet’.

Go Airlines | NCLT Directs RP To Protect Assets Under Control Of Corporate Debtor

Case Title: Go Airlines (India) Limited

Case No.: Company Petition No. (IB)-264(PB)/2023

The National Company Law Tribunal (“NCLT”), Special Bench, comprising of Shri Mahendra Khandelwal (President) and Shri Rahul Bhatnagar (Technical Member), has directed the Resolution Professional to protect the assets in possession and control of Go Airlines (India) Ltd. in terms of Section 25(1) of IBC. The direction has been given in view of an application filed by the Lessors of the Aircraft engines, who have raised concerns regarding the need to timely service and maintain the engines.

Further the Interim Resolution Professional has been replaced by Mr. Shailendra Ajmera as the Resolution Professional of Go Airlines (India) Ltd.

NCLT Hyderabad Rejects Resolution Plan For Being Incompliant With Regulation 36B 4(A) Of CIRP Regulations:

Case Title: Asset Reconstruction Company (India) Limited v Viceroy Hotels Limited

Case No.: CP (IB) No. 219/7/HDB/2017

The National Company Law Tribunal (“NCLT”), Hyderabad Bench, comprising of Dr. Venkata Ramakrishna Badarinath Nandula (Judicial Member) and Shri Charan Singh (Technical Member), has rejected the Resolution Plan submitted for Viceroy Hotels for being incompliant with Regulation 36B 4(A) of IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (“CIRP Regulations”).

The Performance Bank Guarantee submitted by the Resolution Applicant was valid for 6 months period, whereas, the plan implementation schedule was spread over 675 days. The Bench held that the Performance Bank Guarantee must remain valid for the entire period of plan implementation schedule, which is a mandatory provision as per Regulation 36B 4(A) of CIRP Regulations. Since the resolution plan was found incompliant of this mandatory legal provision, the Bench rejected the plan on this basis alone.

NCLT Delhi Approves Ace Infracity’s Resolution Plan For Three C Homes; Development Work Of ‘Lotus City’ To Conclude Within 24 Months

Case Title: Mr. Arun Kumar Sinha v M/s Three C Homes Pvt. Ltd.

Case No.: IB-432(ND)/2019

The National Company Law Tribunal (“NCLT”), New Delhi Bench, comprising of Shri Bachu Venkat Balaram Das (Judicial Member) and Shri Atul Chaturvedi (Technical Member), has approved the resolution plan of M/s. Ace Infracity Developers Pvt. Ltd. (“Successful Resolution Applicant/SRA”) for Three C Homes Pvt. Ltd.

The Resolution Plan is valued at Rs. 140,39,27,000/-. No claims have been received from the operational creditors and hence they have been paid NIL under the plan.

With regard to Farmer’s Compensation, the SRA is offering 100% of principal of farmer’s compensation (Rs. 71.66 Crores) which is included in Rs. 173.46 crores agreed to pay to YEIDA.

Further, the SRA has undertaken to complete the development work of the plots in the Lotus City Project and hand over the units to the allottees. The Resolution Plan is valid for a period of 24 months for closure and handover. Also, the SRA will seek RERA re-registration of the Project for completion of work.

NCLT Approves Plan For Galada Power And Telecommunications Ltd.: NCLT Hyderabad

Case Title: Stressed Assets Stabilisation Fund, Mumbai vs. M/s. Galada Power And Telecommunications Ltd.

Case No.: CP(IB) No.384/7/HDB/2018

The National Company Law Tribunal (“NCLT”), Hyderabad Bench, comprising of Shri Dr. N. V. Rama Krishna Badarinath (Judicial Member) and Shri Satya Ranjan Prasad (Technical Member), has approved the Resolution Plan submitted by M/s. Amrutha Constructions Pvt. Ltd. for M/s. Galada Power and Telecommunications Ltd. The Resolution Plan is valued at Rs. 42.13 Crores.

The SRA has proposed to Rs. 8.70 Crores towards repairs, refurbishment and Working Capital for revival of the Corporate Debtor.

The resolution plan proposes to pay the Secured Financial Creditors an amount of Rs. 29.32 Crores against an admitted claim of 2107.28 Crores. The Operational Creditors such as the Government will be paid Rs. 8.62 Lakhs as against an admitted claim of Rs. 345.01 Lakhs. The Workmen of the Corporate Debtor are to be paid Rs. 17.83 Lakhs as against an admitted claim of Rs. 18.26 Lakhs. The Employees of the Corporate Debtor are to be paid Rs. 31.19 Lakhs as against an admitted claim of Rs. 71.16 Lakhs. While the other Operational Creditors will be paid Rs. 3.11 Lakhs as against an admitted claim of Rs. 124.30 Lakhs.

NCLT Approves Resolution Plan For D S Kulkarni Developers, Homebuyers Will Get Flats Against Their Claims: NCLT Mumbai

Case Title: Bank of Maharashtra v D.S. Kulkarni Developers Limited

Case No.: CP (IB) No. 1633/MB/C-I/2019

The National Company Law Tribunal (“NCLT”), Mumbai Bench, comprising of Shri H.V. Subba Rao (Judicial Member) and Shri Shyam Babu Gautam (Technical Member), has approved the Resolution Plan submitted by a consortium of Ashdan Properties Pvt. Ltd., Classic Promoters and Builders Pvt. Ltd. and Atul Builders for D.S. Kulkarni Developers Ltd. Under the Resolution Plan, the Homebuyers of the Corporate Debtor’s projects will be given flats against their claim amount.

MINISTRY OF CORPORATE AFFAIRS

IICA And NALSAR Launch ‘LL.M In Insolvency & Bankruptcy Laws’ Programme: MCA Issues Press Release

On 8^th June 2023, the Ministry of Corporate Affairs (“MCA”), Government of India has issued a Press Release intimating that the Indian Institute of Corporate Affairs (IICA) in association with NALSAR University of Law, Hyderabad, has launched LL.M programme in Insolvency and Bankruptcy Laws in an event held in New Delhi. Interested students can apply online at www.nalsar.ac.in till 31.07.2023.

The LLM course is a two-year full time LL.M. Degree Residential Course, with 51 credits arranged over four semesters, equally divided between the two campuses of IICA and NALSAR. Initially, a total of 60 seats is being made available for each batch. The registration process for the course would start from 08.06.2023 and end on 31.07.2023. The classes would commence from 5th October, 2023 at NALSAR campus.

MCA Notification: Moratorium Inapplicable To Contracts Entered Into By The CD Under Oilfields (Regulation And Development) Act

File No.: Insol-30/1/2023-Insolvency-MCA

The Ministry of Corporate Affairs, Government of India, has issued a notification dated 14.06.2023, notifying that Section 14(1) of the Insolvency and Bankruptcy Code, 2016 (“IBC”) would be inapplicable to agreements/transactions/arrangements entered into by the Corporate Debtor under the Oilfields (Regulation and Development) Act, 1948. The notification has been published in Extraordinary Gazette of India.

“S.O. 2660(E).—In exercise of the powers conferred by clause (a) of sub-section (3) of section 14 of the Insolvency and Bankruptcy Code, 2016 (31 of 2016), the Central Government hereby notifies that the provisions of sub-section (1) of section 14 of the Insolvency and Bankruptcy Code, 2016 (31 of 2016), shall not apply where the corporate debtor has entered into any of the following transactions, arrangements or agreements, namely: -

(i) the Production Sharing Contracts, Revenue Sharing Contracts, Exploration Licenses and Mining Leases made under the Oilfields (Regulation and Development) Act, 1948 (53 of 1948) and rules made thereunder; and

(ii) any transactions, arrangements or agreements, including Joint Operating Agreement, connected or ancillary to the transactions, arrangements or agreements referred to in clause (i).”