Weekly Digest Of IBC Cases: 9th To 15th October 2023

Supreme Court Homebuyers Who Secure RERA Decrees Can't Be Treated Differently From Other Financial Creditors Under IBC: Supreme Court The Supreme Court bench comprising Justices S Ravindra Bhat and Aravind Kumar, has held that homebuyers cannot be treated differently from other "financial creditors" under the Insolvency and Bankruptcy Code (IBC) 2016 just because they have secured orders from the authority under the Real Estate (Regulation and Development) Act 2016. The bench set aside an order of the National Company Law Appellate Tribunal which held that beneficiary of orders of the RERA Authority should be treated differently from other home buyer allottees. Home buyers who did not approach authorities under RER Act were given the benefit of 50% better terms than that given to those who approached RERA or who were decree holders. NCLAT NCLAT New Delhi: Approval By CCI Prior To Approval Of Resolution Plan By CoC Is Directory In Nature Case Title: Soneko Marketing Pvt. Ltd. vs. Girish Sriram Juneja & Ors. Case No.: Company Appeal (AT) (Insolvency) No. 807 of 2023 The National Company Law Appellate Tribunal (‘NCLAT’), New Delhi Bench, comprising of Justice Ashok Bhushan (Chairperson) and Mr. Barun Mitra (Technical Member), has held that Section 31(4) of IBC has to be read to mean that though the approval by the Competition Commission of India (“CCI”) is ‘mandatory’, the approval by the CCI prior to the approval of the CoC is ‘directory’. The Tribunal observed that as per the timelines of the Competition Act and that of CIRP, Resolution Plan submission, and CoC approval in the Code, it is not in the hands of the Resolution Plan when CCI will grant the approval. The CCI has to act as per statutory provisions of the Competition Act and it has been given 210 days to take a decision. It pointed out that if it holds that prior approval of the CCI is mandatory prior to the approval of the Plan by the CoC, it will lead to incongruous results, the CIRP cannot be frozen or cannot be put on halt because an application is submitted before the CCI leading to an adverse effect on the CIRP. NCLAT New Delhi: Date Of Default As Per One Time Restructure Agreement Shall Be Date Of Default Case Title: Pradeep Madhukar More vs. Central Bank of India Case No.: Company Appeal (AT) (Insolvency) No.837 of 2023 The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, comprising of Justice Ashok Bhushan (Chairperson) and Barun Mitra (Technical Member), has held that if the Bank has entered into One Time Restructuring (‘OTR’) Agreement with the Corporate Debtor, the date of default for the purpose of Section 10A of IBC will be the date of default in the OTR proposal and not the original/Non-Performing Asset (‘NPA’) date of default. NCLAT New Delhi: Disputes Surrounding Claims And Counter-Claims Cannot Be Adjudicated Or Determined By The Adjudicating Authority Given Their Summary Jurisdiction Case Title: Rakesh Kumar (Suspended Director of Suchi Paper Mills Ltd.) vs. Flourish Paper & Chemicals Ltd. Case No.: Company Appeal (AT)(Insolvency) No. 1161 of 2022 The National Company Law Appellate Tribunal (“NCLAT”), New Delhi Bench comprising of Justice Ashok Bhushan (Chairperson) and Barun Mitra (Technical Member), has held that disputes surrounding claims and counter-claims cannot be adjudicated or determined by the Adjudicating Authority given their summary jurisdiction. NCLAT New Delhi: No Fresh Period Of Limitation From The Date Of MSME Order When Application Barred By Time Case Title: Pan Pacific Engineering Services Pvt. Ltd. vs. Ayyappa Hydro Power Ltd. Case No.: Company Appeal (AT) (Insolvency) No. 1239 of 2023 The National Company Law Appellate Tribunal (“NCLAT”), Principal Bench, New Delhi comprising of Justice Ashok Bhushan (Chairperson), Mr. Barun Mitra (Technical Member), and Mr. Arun Baroka (Technical Member), has held that no fresh period of Limitation would commence from the date of an order passed by MSME department order, when an application under IBC seeking initiation of CIRP is barred by time. NCLAT Chennai: FC And OC Can’t Give Additional Facts Not Provided In Application Under Sections 7, 9 Or 10 Of IBC Case Title: State Bank of India vs. India Power Corporation Limited Case No.: Company Appeal (AT) (CH) (Ins) No.87/2023 The National Company Law Appellate Tribunal (“NCLAT”), Chennai Bench comprising of Justice Rakesh Kumar Jain (Judicial Member) and Shreesha Merla (Technical Member), has held that a creditor cannot set up a new case or raise additional facts altogether that has not been set up in the main application filed either u/s 7, 9, or 10 of IBC, when NCLT allows the creditor (Petitioner) to file a rejoinder to the reply pertaining to additional facts stated by Corporate Debtor. Mere Statement Of Operational Creditor That No Dispute Exists, Is Not...

Weekly Digest Of IBC Cases: 9th To 15th October 2023

Pallavi Mishra

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