Chapter 2
Chapter 2
35. Vallal RCK v. Siva commercial SC held that commercial wisdom of COC has been given
Industries and Holding wisdom of COC paramount status without any judicial intervention for
Limited & Others (SC) ensuring completion of the processes within the
timelines under IBC.
36. Macquarie Bank Limited Application of SC held that -
v. Shilpi Cable CIRP by OC 1. Section 9(3)(c) of the code is directory and not
Technologies Ltd (Section 9) mandatory in nature.
2. Demand notice under the code can be issued by
the lawyer on behalf of Operational Creditor
37. Radius Infratel Pvt. Ltd. Corporate debtor Once an insolvency professional is appointed to
v. Union Bank of India cannot maintain manage the company, the erstwhile directors who are
(NCLAT) appeal no longer in management, obviously cannot maintain
an appeal on behalf of company.
38. Nikhil Mehta & Sons Flat buyers can All the allottees under real estate project, whether
(HUF) & Ors. v. AMR initiate insolvency under assured return plan or not, shall fall under the
Infrastructures Ltd proceedings definition of “Financial Creditor”.
(NCLAT)
39. Surendra Trading Time-limit for SC held that provision of removing the defects in an
Company v. Juggilal completion of application within Seven days is directory and not
CIRP mandatory in nature.
Lesson 2
CORPORATE INSOLVENCY RESOLUTION PROCESS
Case Laws
Kamlapat Jute Mills
Company Limited (SC)
40. Arcelormittal India Pvt. Time-limit for The time limit for completion of the CIRP as laid down
Ltd. v. Satish Kumar completion of u/s 12 of the code is mandatory and it cannot be
Gupta & Ors. (SC) CIRP extended beyond 270 days.
(Section 12)
41. Essar Steel India Ltd VS Role of COC in SC emphasized the that primacy of the commercial
Satish Kumar Gupta (SC) CIRP wisdom of the COC in the resolution process as to
whether to rehabilitate the corporate debtor or not by
accepting a particular resolution plan.
42. Ms. Ashish Ispat Private Withdrawal of NCLAT held that when a withdrawal application u/s 12A
Limited Vs. Primuss Application of the code is filed prior to constitution of COC,
Pipes & Tubes Ltd (Section 12A) requirement of 90% vote of COC is not applicable it will
(NCLAT) be applicable only when COC is constituted.
43. Nimitaya Infotech Pvt. Moratorium Any action taken by landowner to enforce their security
Ltd. And Ors. Vs. Cox & (Section 14) interest over their security deposits or maintenance
Kings Ltd. (NCLAT) advance by making any deduction from the same post
initiation of CIRP would be in violation of Section 14.
44. P. Mohanraj & Ors. v. Moratorium No section 138/141 proceeding can continue or be
M/s Shah Brothers Ispat (Section 14) initiated against the CD because of moratorium, such
Pvt. Ltd (SC) proceeding can be initiated or continued against the
person in charge of, and responsible to the company
during the Pre-CIRP period.
45. Gujarat Urja Vikas Moratorium AA ruled that Power Purchase Agreement (PPA) and
Nigam Ltd. vs. Yes Bank (Section 14) the solar power project must work together to
Limited. (NCLAT) maximize the worth of the assets, it does not seems
justified to terminate the PPA after liquidation order
passed against CD as CD’s supply of solar energy does
not constitute a breach of the contract on CD’s side..
46. Alchemist Asset Moratorium Once the moratorium is imposed any proceeding
Reconstruction (Section 14) initiated against the corporate debtor is non-est (does
Company Limited Vs. not exist) in law.
Hotel Gaudavan Private
Limited (SC)
47. Canara Bank Vs. Deccan Moratorium The moratorium will not affect any proceedings
Chronicle Holdings (Section 14) initiated or pending before the Supreme Court under
Limited (NCLAT) Article 32 of the Constitution of India or where an order
is passed under Article 136. Further, it will not affect
the powers of any High Court under Article 226 of the
Constitution.
48. Mr. Ajay Kumar Bishnoi Moratorium HC confirmed that the moratorium u/s 14 of the IBC
Vs. M/s Tap Engineering (Section 14) prohibits proceedings, but such proceedings do not
and Other (HC) include prosecution.
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CORPORATE INSOLVENCY RESOLUTION PROCESS
Case Laws
49. Varrsana Ispat Limited Moratorium NCLAT held that section 14 of IBC is not applicable to
Vs. Deputy Director, (Section 14) criminal proceeding or any penal action taken pursuant
Directorate of to criminal proceeding or any act having the essence of
Enforcement (NCLAT) crime or crime proceedings. The Supreme Court also
upheld the order passed by the NCLAT
50. Ms. Anju Agarwal Moratorium NCLAT held that section 14 of IBC will prevail over
Resolution Professional (Section 14) section 28A of SEBI Act, 1992 & SEBI cannot recover any
For Shree Bhawani amount including the penalty from the CD. BSE cannot
Paper Mills Ltd. Vs suspend trading of shares of CD for the same reason.
Bombay Stock 19
Exchange & Ors (NCLAT)
51. Maharashtra Seamless Moratorium NCLAT held that Statutory dues or penalty imposed by
Ltd. Vs. Shri (Section 14) regulator may be claimed as operational creditor but
Padmanabhan cannot be recovered during the resolution process.
Venkatesh & Ors
(NCLAT)
52. Rajendra K. Bhutta Vs. Moratorium SC held that Section 14(1)(D), of the IBC speaks about
Maharashtra Housing (Section 14) recovery of property occupied, does not refer to rights
and Area Development or interest created in property but only actual physical
Authority (MHADA) (SC) occupation of the property.
53. M/s Embassy Property Moratorium The moratorium under section 14 did not impact the
Developments Pvt. Ltd. (Section 14) right of the government to refuse extension of the
Vs. State of Karnataka lease as the purpose of section 14 was to preserve the
and Others (SC) status quo and not to create a new right.
54. Dakshin Gujarat VIJ Moratorium NCLAT held that law does not stipulate that essential
Company Ltd. Vs. M/s. (Section 14) goods, including water & electricity should be supplied
ABG Shipyard Ltd. and free of charge until moratorium is ended. The amount
Another (NCLAT) paid for these services by the RP shall be part of CIRP
cost.
55. Whispering Tower Flat Time limit for NCLAT held that object of the code is the resolution of
Owner Welfare completion of the CD and efforts of all stakeholders has to be towards
Association Vs. Abhay CIRP resolution of insolvency. NCLAT allowed extension of
Narayan Manudhane, 90 days period during which RP and COC may complete
RP of Corporate Debtor resolution even though 730 days has already been
and Ors (NCLAT) elapsed in CIRP.
56. Jaypee Kensington Committee of 1. the treatment of any debt or asset is essentially
Boulevard Apartments Creditors required to be left to the collective commercial
Welfare Association & wisdom of the financial creditors and NCLT does
Ors. Vs. NBCC (India) Ltd. not have scope in the same.
& Ors. (SC) 2. CoC can vote upon multiple resolution plans at the
same time.
57. Mr. Manoharlal Mehta Committee of COC is in superior position to make such business
& Ors. v. Anil Vrijdas Creditors decisions of their commercial wisdom even when a
Rajkotia, RP of K K Resolution plan duly approved by it. It is empowered to
Welding Ltd (NCLAT decide to liquidate the CD at any time following its
Lesson 2
CORPORATE INSOLVENCY RESOLUTION PROCESS
Case Laws
constitution and prior to the confirmation of
Resolution Plan.
58. Lalit Kumar Jain Vs. Approval of Approval of resolution plan of a corporate debtor
Union of India & Ors (SC) Resolution Plan undergoing CIRP does not per se operate as a discharge
by the Committee to its surety/guarantor of their liabilities under contract
of guarantee.
59. Ghanashyam Mishra Approval of 1. Once Resolution plan is approved by an AA, the
and Sons Private Limited Resolution Plan claim forming part of resolution plan stands frozen
Vs. Edelweiss Asset by the Committee and claim not forming part of resolution plan
Reconstruction stands extinguished.
Company Limited and 2. Approved Resolution plan is binding upon
Others (SC) Corporate Debtor, employees, members, creditors,
government and any other stakeholders.
60. Next Orbit Ventures Approval of If resolution plan requires change in the nature of
Fund Vs. Print House Resolution Plan business when existing business of CD has become
(India) Pvt. Ltd. & Ors by the Committee non-viable, then addition of new business line will not
(NCLAT) make the resolution plan unfeasible or unviable.
61. Mobilox Innovations Applications by an SC undertook detailed analysis of the provisions
Pvt. Ltd. Vs. Kirusa operational relating to applications by an OC u/s 9 of the IBC code.
Software Pvt. Limited creditor the dispute must predate the receipt of the demand
(SC) (Section 9) notice
62. Innoventive Industries Application of 1. A financial creditor can trigger section 7(1) of the
Ltd. Vs. ICICI Bank & CIRP IBC for default of a financial debt owed by the
Another (SC) (Section 7) corporate debtor to any financial creditor.
2. Dispute that existed before the receipts of demand
notice/invoices by the CD will make application of
an OC inadmissible.
3. Even Non-payment of a disputed financial debt
when due would constitute a default under IBC.
63. Swiss Ribbons Private distinguishment The IBC needs to distinguish between financial
Limited and Another Vs. between financial creditors and operational creditors to preserve the
Union of India and creditors and corporate debtor as a going concern, while ensuring
Others (SC) operational maximum recovery for all creditors.
creditors
64. B.K. Educational Services Applicability of Where periods of limitation have been laid down in the
Private Limited Vs. Parag Limitation Act IBC, they will apply notwithstanding anything to the
Gupta and Associates contrary contained in the Limitation Act.
(SC)
65. Dena Bank (Now Bank of Applicability of Entries made in the balance sheet and/or Books of
Baroda) Vs. C. Limitation Act accounts amounts to acknowledgement of debt as per
Shivakumar Reddy section 18 of Limitation Act, 1963.
&
M/s SKC Infratech Pvt.
Ltd vs M/s EOS
Hospitality Pvt. Ltd (SC)
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CORPORATE INSOLVENCY RESOLUTION PROCESS
Case Laws
66. Babulal Vardharji Gurjar Applicability of 1. Period of limitation for an application u/s 7 of IBC
Vs. Veer Gurjar Limitation Act is three years from the date when the default
Aluminium Industries occurs.
Private Limited (SC) 2. Application u/s 7 of IBC is not for enforcing
mortgage liability and article 62 of limitation act
does not apply here.
3. The date of the IBC’s coming into force on
01.12.2016 is irrelevant to the triggering of any
limitation period for the purposes of the IBC.
4. Section 18 which allows extension of limitation
would not apply to the application under
consideration
67. RBI Vs. Dewan Housing Application of The RBI, in its capacity as appropriate regulator, in
Financial Corporation CIRP by RBI terms of rule 5 of the Financial Service Provider Rules,
(NCLT) can initiate CIRP
68. Hindustan Construction Applicability of NHAI is a statutory body that function as an extended
Company Limited & IBC limb of CG and perform governmental functions that
Another Vs. Union of cannot be taken over by an RP under IBC nor such
India & Others (SC) authority can be wound up under IBC.
69. Nirej Vadakkedathu Paul Application of 1. The shareholder have no ‘Locus’ once an
& Ors Vs Sunstar Hotels CIRP application u/s 7 of by financial creditor is accepted
& Estate Private Limited and CIRP is initiated by AA and shareholders can
and Mcdowell Holdings not challenge the same.
Ltd (NCLAT) 2. There is no law which allows third parties to settle
claims of the Financial creditor on behalf of the
corporate debtor without the consent of CD.
70. Anant Kajare Vs Eknath Application of Since appellant is an investor therefore it cannot claim
Aher CIRP to be an aggrieved person for preferring an appeal
against the order passed by the AA. However, the
NCLAT held that an investor is entitled to file its claim
before the Insolvency Resolution Professional.
71. Sabarmati Gas Limited Case incomplete in module
vs. Shah Alloys Limited
(SC)
72. Committee of Creditors Commercial NCLAT held that it is always open to COC to adjudge the
of Essar Steel India Ltd. wisdom of the commercial wisdom of the resolution plan while
V. Satish Kumar Gupta & COC approving it. The NCLT and NCLAT must never interfere
Ors (SC) with a commercial decision made by the majority of the
COC.
73. K. Sashidhar v. Indian Commercial 1. NCLT and NCLAT have no jurisdiction analyse the
Overseas Bank & Ors. wisdom of the commercial decisions taken by the COC and
(SC) COC opposition to resolution plan due to such
Commercial decision is not open to challenge
before AA.
2. COC has discretion to approve any resolution plan
and its discretion cannot be intervened with by AA
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CORPORATE INSOLVENCY RESOLUTION PROCESS
Case Laws
except for in terms of Section 31(1) to examine
compliance of Section 30(2) read with relevant
regulations.
74. Kalpraj Dharamshi and Commercial Sc held that commercial wisdom of COC is not to be
Another v. Kotak wisdom of the interfered excepting the limited scope as provided
Investment Advisors COC under Sections 30 and 31 of the I&B Code..
Limited and Another
(SC)
75. Vallal Rck vs M/S Siva Commercial the commercial wisdom of the COC has been given
Industries And Holdings wisdom of the paramount status without any judicial intervention for
(SC) COC ensuring completion of the stated processes within the
timelines prescribed by the IBC.
76. Jindal Stainless Ltd. v. Approval of The decision of COC to vote on the Resolution Plan
Mr. Shailendra Ajmera, Resolution plan after completion of Challenge Process and not to
Resolution Professional by COC further accept any modification of the plan, should not
of Mittal Corp Ltd. & Ors. be interfered with.
(NCLAT)
77. Binani Industries Limited Objective of the Purpose of Resolution is for maximization of value of
v. Bank of Baroda & Anr. IBC is Resolution asset of the Corporate Debtor and thereby for all
(NCLAT) and creditors and not for a ‘stakeholder’ or ‘a set of
stakeholders.
78. Swiss Ribbons Pvt. Ltd. & Liquidation Sc held that preamble does not refer to liquidation,
Another Vs. Uol & which is only pursued as a last resort if there is either
Others (SC) no resolution plan or resolution plan submitted are not
up to the mark.
79. Binani Industries Limited Principles for NCLAT laid down certain principles that a resolution
v. Bank of Baroda & Anr. resolution plan plan should comply with.
(NCLAT)
80. Vijay Kumar Jain v. Meeting of COC Former directors are entitled to receive resolution
Standard Chartered plan. the RP can take an undertaking from the erstwhile
Bank and others (SC) director to maintain confidentiality of the information.
81. Maharashtra Seamless Modification of The court ought to cede ground to the commercial
Limited Vs. resolution plan wisdom of the creditors rather than assess the
Padmanabhan resolution plan on the basis of quantitative analysis
Venkatesh and Others
(SC)
82. Committee of Creditors Subrogation and 1. It cannot be accepted that part of the resolution
of Essar Steel India submission of plan which states that the claims of the guarantor
Limited Through claims on account of subrogation shall be extinguished,
Authorised Signatory Vs. cannot be applied to the guarantees furnished by
Satish Kumar Gupta the erstwhile directors of the CD.
(NCLAT) 2. All claims must be submitted to and decided by the
RP so that a prospective resolution applicant knows
exactly what must be paid.
Lesson 2
CORPORATE INSOLVENCY RESOLUTION PROCESS
Case Laws
83. Hem Singh Bharana Vs. Approval of NCLAT held that After approval of resolution plan by
Pawan Doot Estate Pvt. resolution plan by the COC, it itself bound by its decision and cannot be
Ltd. & Ors. (NCLAT) the COC allowed to go back from its decision.
84. Hindalco Industries Ltd. Fraudulent NCLAT imposed penalty on FC and CD and ordered for
Vs. Hirakud Industrial initiation of CIRP complete investigation by IBBI on the grounds of
Works Ltd. (NCLAT) fraudulent initiation of CIRP and illegal constitution of
COC
85. Jindal Stainless Ltd. Vs. Submission of After adoption of Swiss challenge method to find out
Shailendra Ajmera revised the best plan, one resolution applicant cannot be
(NCLAT) Resolution Plan allowed to submit a revised plan