Weekly Digest Of IBC Cases: 22nd To 27th August 2023

NCLAT Central Excise Authority Not A Secured Creditor Under IBC: NCLAT Chennai Case Title: The Assistant Commissioner of Central Tax v Mr. Sreenivasa Rao Ravinuthala & Anr. Case No.: COMPANY APPEAL (AT) (CH) (INS.) NO. 346/2021 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 Central Excise Authority is not a Secured Creditor under IBC. The Bench observed that usage of the words ‘save as provided in’ in Section 11E of Central Excise Act, 1944 is in the nature of an exception, intended to exclude the class of cases, mentioned in Companies Act, 1956, The Recovery of Debts due to Banks and the Financial Institutions Act, 1993, SARFAESI Act, 2002 and IBC. Also, ‘Secured Interest’ as defined under IBC, excludes charges created by Operation of law. Further, the Master Circular No.1053/02/2017-CX, issued by the Ministry of Finance specifies that dues under ‘Central Excise Act, 1944’ would have first charge only after the dues under the Provisions of IBC are recovered. Request For Repetitive Adjournments By The Appellant: NCLAT Delhi Dismisses Appeal For Non-Prosecution Case Title: Amrit Kumar Patel v Phoenix ARC Pvt. Ltd. & Ors. Case No.: Company Appeal (AT) (Ins) No. 605 of 2022 The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench, comprising of Justice Rakesh Kumar (Judicial Member) and Dr. Alok Srivastava (Technical Member), has dismissed an appeal for non-prosecution, since the Appellant’s Counsel had sought adjournments on several continuous dates citing personal difficulty. The Bench held that the Appellant is not interested in pursuing the case. Shri Ajai Das Mehrotra Takes Oath As A Technical Member In NCLAT On 21.08.2023, Shri Ajai Das Mehrotra has taken oath as a Technical Member in the National Company Law Appellate Tribunal (“NCLAT”), Delhi. Mr. Mehrotra had retired from the Indian Revenue Services as a Principal Chief Commissioner of Income Tax. Thereafter, he served as a Technical/Administrative Member in the Appellate Tribunal of Real Estate Regulatory Authority in Gandhinagar. He has also served as a Technical Member in the National Company Law Tribunal (NCLT), Ahmedabad Bench, before being appointed to the NCLAT. NCLT Resolution Professional Responsible For Conducting Section 29A Due Diligence; Can Seek Information, Documents Or Clarification From RA: NCLT Mumbai Case Title: M/s Blue Frog Media Pvt. Ltd. Case No.: CP (IB) No. 4360/MB/C-I/2018 The National Company Law Tribunal (“NCLT”), Mumbai Bench, comprising of Shri Kishore Vemulapalli (Judicial Member) and Shri Anu Jagmohan Singh (Technical Member), has held that a Resolution Professional is responsible to conduct due diligence relating to Section 29A of IBC, to identify ineligibility of resolution applicant, if any. Additional information, documents or clarifications can be sought from the Resolution Applicant by the Resolution Professional. The mere submission of an affidavit by the resolution applicant under Section 29A of IBC would not suffice. “The Resolution Professional has the responsibility to conduct Section 29A due diligence. A prospective Resolution Applicant submitting an affidavit stating that he/she is eligible under Section 29A to submit resolution plan will not suffice. Adequate due diligence on the prospective Resolution Applicants and its connected persons needs to be conducted effectively and within the requisite timeline to identify ineligibility, if any. The Resolution Professional should seek clarifications or additional information or document from the prospective Resolution Applicants, if needed for conducting the due diligence.” MCA MCA Extends Deadline For Submitting Applications For Judicial & Technical Member Vacancies In NCLAT, Last Date To Apply Is 1st September 2023 Ref. No. A-1 2023 t2l2023-Ad IV-MCA The Ministry of Corporate Affairs (“MCA”), Government of India, has issued a circular dated 17.08.2023, intimating that the deadline for submitting applications for the post of Judicial Members and Technical Members in the National Company Law Appellate Tribunal (“NCLAT”) has been extended. The Applications can now be submitted online at https://apptrbmembermca.gov.in by 01.09.2023. Thereafter, the print out of the online filed application has to be submitted on the given address by 08.09.2023 within 05:00 pm. On 06.06.2023, the MCA had issued a circular inviting application for the post of Judicial Members and Technical Members in NCLAT. Previously, the deadline to submit the application was 05.07.2023. The terms and conditions laid down in Circular dated 06.06.2023 shall remain same.

Weekly Digest Of IBC Cases: 22nd To 27th August 2023

Pallavi Mishra

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