Monthly Digest Of IBC Cases: December 2023

Supreme Court IBC | When Matter Heard But No Order Pronounced On The Same Day, Limitation To Commence From The Date When Order Gets Uploaded: Supreme Court Case Title: Sanjay Pandurang Kalate v Vistra ITCL (India) Limited and Others Case No.: Civil Appeal Nos 7467-7468 of 2023 The Supreme Court bench comprising Chief Justice of India Dr Dhananjaya Y Chandrachud, Justice J B Pardiwala and Justice Manoj Misra, has held that when the NCLT hears a matter on a particular date but does not pronounce the order on the same date, then the limitation for filing an appeal from such order before the NCLAT under Section 61 of the Insolvency and Bankruptcy Code, 2016 (“IBC”), would commence from the date when the Order of NCLT gets uploaded. However, in cases where matter was heard and order was pronounced on the same day by the NCLT, limitation would commence from the date of pronouncement of order and not its upload. The NCLT heard a matter on 17.05.2023 but no order was pronounced or passed. The order was uploaded on 30.05.2023. The Appellant filed an appeal against the NCLT order. before NCLAT The issue was whether limitation under Section 61(2) of IBC would commence from 17.05.2023 or 30.05.2023. The bench while differentiating between 'hearing' of a case and 'pronouncement' of order in view of NCLT Rules 2016, and has held that the time for filing an appeal would commence only when the order appealed from was uploaded, since prior to that date no order was pronounced. IBC | When Matter Heard On A Particular Date But Order Pronounced Later, NCLT Not To Affix Date Of Hearing On Order: Supreme Court Case Title: Sanjay Pandurang Kalate v Vistra ITCL (India) Limited and Others Case No.: Civil Appeal Nos 7467-7468 of 2023 The Supreme Court bench comprising Chief Justice of India Dr Dhananjaya Y Chandrachud, Justice J B Pardiwala and Justice Manoj Misra, has held that when a matter is heard by the NCLT on a particular date but the order is pronounced on another date, then NCLT must refrain from affixing the date of hearing on the order. The requirement of pronouncement of order cannot be dispensed with, since under the NCLT Rules, 2016 there is a distinction between 'hearing' and 'pronouncement'. The NCLT heard a matter on 17.05.2023 but no order was pronounced. The order was uploaded on 30.05.2023. The Appellant filed an appeal against the NCLT order before NCLAT under Section 61(2) of the Insolvency and Bankruptcy Code, 2016 (“IBC”), The issue was whether limitation under Section 61(2) of IBC would commence from 17.05.2023 or 30.05.2023. The bench observed that,“To avoid situations such as these, in cases where the matter has been heard on a particular day but the order is pronounced on a later date, the NCLT must refrain from affixing the date of hearing on the order. Such an approach would be a violation of the NCLT Rules, which create a distinction between hearing and pronouncement and do not allow the NCLT to dispense with the requirement of pronouncement.” The Bench has also appreciated the NCLAT Chairperson, Members and Registry for taking pro-active steps towards the observations made in Sanket Kumar Agarwal v. APG Logistics Private Limited, 2023 LiveLaw (SC) 406, wherein it was observed that filing of physical copies is not mandatory when e-filing has been done. “Such proactive action by tribunals is essential to ensure that the move towards a modernized and technology-friendly judiciary trickles down to every judicial forum across the country.” Sec 240A IBC | Even If MSME Registration Obtained Post Commencement Of CIRP, Promoter Eligible To Submit Resolution Plan: Supreme Court Case Title: Hari Babu Thota Citation: 2023 LiveLaw (SC) 1051 The Supreme Court bench comprising Justice Sanjay Kishan Kaul and Justice Sudhanshu Dhulia, has held that the Promoter of a Corporate Debtor is eligible to submit a resolution plan in terms of Section 240A of the Insolvency and Bankruptcy Code, 2016 (“IBC”), even if the Corporate Debtor was registered as Micro Small Medium Enterprise (“MSME”) after commencement of Corporate Insolvency Resolution Process (“CIRP”). The Bench has set aside an order passed by the National Company Law Appellate Tribunal (“NCLAT”), wherein the Promoter of a MSME Corporate Debtor was declared ineligible to submit a plan on the premise that the MSME certificate was obtained post commencement of CIRP. IBC | Cut-Off Date To Determine Resolution Applicant's Eligibility Under S.240A Is Date Of Submitting Resolution Plan: Supreme Court Case Title: Hari Babu Thota v. Other Citation: 2023 LiveLaw (SC) 1051 The Supreme Court bench comprising Justice Sanjay Kishan Kaul and Justice Sudhanshu Dhulia, has held that for the purpose of Section 240A of Insolvency and Bankruptcy Code, 2016 (“IBC”), the cut-off date to determine the eligibility of a resolution applicant to submit a...

Monthly Digest Of IBC Cases: December 2023

Pallavi Mishra

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