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7/31/2021 Insolvency Law in Review and Insolvency and Bankruptcy Code,2016- June 2021
The enactment of the Insolvency and Bankruptcy Code, 2016 (Code) has had
significant ramifications on the corporate insolvency landscape. Over time, the Code
decisions. This has made it difficult for insolvency practitioners to stay updated with
developments in the field. This column fills this gap by providing brief summaries of
latest decisions from the various fora dealing with Insolvency Law.
These case summaries are not an exhaustive review of the cases under the Code; only
significant rulings on the Code in the month of June, 2021 have been summarized.
However, this does not negate the possibility of some important decisions being
missed out on account of human error. Further, since the purpose of this endeavor is
1. HIGH COURTS
In Gouri Prasad Goenka v. State Bank of India, the Calcutta High Court held that the
information related to the wilful defaulters for cautioning the banks and financial
institutions so as to ensure that further bank finance is not made available to them
and not for the recovery of the debts or assets of the corporate debtor, which could
hamper the corporate insolvency resolution process (CIRP). The High Court further
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director/guarantor of the corporate debtor, who was in charge at the relevant period, is
not obliterated automatically by the filing of an application under S. 7 of the Code, and
of Finance Department of Revenue Through the Director, the Gujarat High Court held
that the statutory amounts due from the corporate debtor in respect of the vehicles,
which were sold by the liquidator corporate debtor, cannot be recovered in terms of
the provisions of the Motor Vehicles Act, 1988 and the rules framed thereunder. It can
only be recovered under the provisions of the Code, i.e., the waterfall mechanism
Lens
In Mr. Rakesh Kumar Agarwal and Others v. Mr. Devendra P. Jain, the National
Company Law Appellate Tribunal (NCLAT), New Delhi held that the government
notification dated June 1, 2020, concerning the changes to the classification of micro,
small and medium enterprises (MSME) under the Micro, Small and Medium
whose liquidation process was still pending under the Code. The NCLAT, New Delhi,
while reiterating that the main objective of the Code is to resolve the insolvency and
that the liquidation of the corporate debtor is only a last resort, set aside the order of
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the adjudicating authority which had found the notification inapplicable to the
corporate debtor since it came into effect at a later date on July 1, 2020.
Another., the NCLAT, New Delhi held that the word 'collation' under S. 21(1) of the
Code means verification of the claims of the creditors, or in other words, the
comparison of a copy with its original in order to verify its correctness. The NCLAT,
New Delhi held that a meeting of the committee of the creditors (CoC) cannot be held
without verification and the admission of the claims of the creditors and followed by
the assignment of voting shares to such creditors. Further, the NCLAT, New Delhi held
that the exercise of the commercial wisdom of the CoC cannot be used as a pretext
for validating the decisions taken by the CoC, whose very formation has been found to
In Vivekanand Jha v. Punjab National Bank and Another, the NCLAT, New Delhi held
that an offer for a one-time settlement by the corporate debtor in case of a debt which
is due and has been defaulted upon, will not result in the shifting of the date of default
for the calculation of the limitation period. The NCLAT, New Delhi instead held that
such offers for one-time settlements will act as an acknowledgement of the debt due
under S. 18 of the Limitation Act, 1963, thereby, resulting in a fresh start of the
In Hytone Merchants Pvt. Ltd. v. Satabadi Investment Consultants, the NCLAT, New
Delhi held that even an application that is otherwise compliant with the requirements
of S. 7 of the Code can be dismissed by the National Company Law Tribunal (NCLT),
In The Assistant Commissioner of Central Tax v. Mr. V. Shanker and Others, the
NCLAT, New Delhi, while observing that delays in the CIRP affect the maximisation of
the value, held that a mere letter addressed to the NCLT for the purposes of
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requirements of Part III of the National Company Law Tribunal Rules, 2016, S. 60 of
the Code, the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules,
2016, and the Insolvency and Bankruptcy Board of India (IBBI) (Insolvency Resolution
In Earth Gracia Buildcon Pvt. Ltd. v. Earth Infrastructure Ltd., the NCLAT, New Delhi,
while relying upon the decision of the Supreme Court in Phoenix Arc Pvt. Ltd. Vs.
Spade Financial Services Ltd. & Others., held that a sham/round-tripped transaction
will not classify as a 'financial debt' for the purpose of the Code.
KGS Sugar & Infra & Another, the NCLAT, New Delhi upheld the decision of the NCLT,
Mumbai setting aside the decision of the CoC to accept the expression of interest
(EoI) of a resolution applicant after the due date, on the grounds that the CoC did not
assign any reasons for revisiting its earlier decision of rejecting the EoI of the
resolution applicant. The NCLAT, New Delhi held that the CoC, in the shelter of
maximisation of the value of the assets, cannot be permitted to take any decision at
any point of time in the name of commercial wisdom. The court distinguished the
case at hand from the decision of the Supreme Court in the case of Kalpraj Dharamshi
v. Kotak Investment Advisors, by stating that in the case of Kalpraj. the actions of RP,
including the acceptance of the resolution plan after the due date had been
In M/s. Manipal Media Network Limited v. M/s. Vishwakshara Media Private Limited,
the NCLAT, New Delhi, on the issue of whether the appellant can invoke the provisions
of the Code if the underlying agreement provides for arbitration under the Arbitration
and Conciliation Act, 1996, held that it is not for the Adjudicating Authority to direct
the parties to go for arbitration if the matter was not referred to arbitration by either of
the parties.
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In Pratiksh Pramod Rai v. Mylaw Learning Resources Pvt. Ltd., the NCLT, Mumbai
refused to admit a company into CIRP on the grounds that while the company had
time and again tried to settle the dues owed to the operational creditor, it was the
operational creditor which refused to enter into any settlement. The NCLT, Mumbai
held that the Code cannot be used as a recovery mechanism and is only for the
unsound and unable to repay its debts, the NCLT, Mumbai dismissed the petition of
Limited, the NCLT, Mumbai, following the decision of the Supreme Court in Jignesh
Shah v. Union of India, held that the filing of the recovery proceedings within the period
of limitation does not result in the extension of the period of limitation for the
proceedings under the Code. Further, the NCLT, Mumbai, following S. 34 of the Indian
Evidence Act, 1872, held that in the absence of any supporting evidence, mere entries
in the books of accounts of the petitioner will not be enough to prove debt due to the
creditor.
Investments Pvt. Ltd., the NCLT, Chennai, following the decisions of the NCLAT, New
Delhi in State Bank of India v. Athena Energy Ventures Private Limited and Edelweiss
Asset Reconstruction Company Ltd. v. Sachet Infrastructure Ltd., held that the CIRP
can be simultaneously initiated against two corporate guarantors or against the
principal borrower and the corporate guarantor under the Code. Further, the NCLT,
Chennai, citing the judgment of the Supreme Court in Laxmi Pat Surana v. Union Bank
of India & Another, held that the limitation period for the right to initiate action against
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the guarantor will also get extended when the corporate debtor acknowledges its
liability to pay the outstanding dues before the expiry of the period of limitation.
However, in this case, due to the failure to mention the date of default and the
absence of any averments by the financial creditor regarding the extension of the
period of limitation, the NCLT, Chennai found the debt to be time barred.
In Mr. Srinivas Manthena and Anr. v. M/s Emaar Hills Township Pvt. Ltd., the NCLT,
Hyderabad relied upon the judgment of the Supreme Court in Manish Kumar v. Union
of India and Others, to hold that an application filed by a single allottee prior to the
amendment of the third proviso to S. 7(1) of the Code shall continue to be
maintainable even after the said amendment, and that allottees in the same project
against the same corporate debtor could pursue their applications under the Code
jointly.
In Jose Pradeep v. CA, Jasin Jose and Others., the NCLT, Kochi, while relying on the
judgment of the Supreme Court in Rahul Jain v. Rave Scans Pvt. Ltd. and the NCLAT,
New Delhi in QVC Exports Ltd. v. United Tradeco FZC, held that there can be no
modification to the terms of a resolution plan that has been approved by the NCLT.
In Goodwood Products v. Kitply Industries Ltd., the NCLT, Guwahati followed the
judgment of the Supreme Court in Committee of Creditors of Essar Steel India Ltd. v.
Satish Kumar Gupta and Others and Ghanshyam Mishra and Sons Pvt. Ltd. through
the Authorized Signatory v. Edelweiss Asset Reconstruction Company Ltd. through the
Director and Others, to hold that once the resolution plan is approved by the NCLT in
respect of the corporate debtor, it becomes binding on all stakeholders and that the
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rejecting the submission of the claim of the operational creditor in its entirety, on the
grounds that the scheme in relation to the corporate debtor under S. 230 of the
Companies Act, 2013 read with the attendant provisions of the Code had already been
approved by the NCLT, Chennai. The NCLT, Chennai, while relying on the decision of the
Gupta & Others, noted that the successful scheme proponent cannot be suddenly
faced with an undecided claim.
Krishna Industrial Corporation Limited, the NCLT, Chennai held that given the NCLT is
constituted by virtue of and in terms of the provisions of a statute and not under the
Indian Constitution, the NCLT does not have the powers to strike down any provisions
of the Code nor the rules and regulations framed thereunder. However, the NCLT,
Chennai noted that the NCLT will not be detracted from going into the issue of any
inconsistency prevalent between the Code and the rules and regulations framed
thereunder for the limited purposes of its interpretation. In this context, the NCLT,
Chennai, rejected the contention of the applicant here to strike down Regulation 21A
inter alia, requires a secured creditor, who has opted to realise the security interest on
its own, to contribute to the liquidation costs. However, the NCLT, Chennai, while
harmoniously construing Ss. 52 and 53 the Code with Regulation 21A of the
Liquidation Regulations, held that a secured creditor opting to realise the security
interest on its own, has to contribute to the liquidation costs in proportion to the debts
owed to it, on the grounds that the secured creditor opting to realise the security
interest on its own, is required to take the assistance of the liquidator in case of a
surplus arising out of the appropriation in order to have the surplus included in the
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order to realise the balance amount from the liquidation estate in terms of Ss. 52 and
53 of the Code.
In M/s. Ostberg India Private Limited v. M/s. Udeshtech Equipments & Engineering
Private Limited, the NCLT, Chennai held that the failure on the part of the corporate
debtor in relation to non-adherence to the time schedule stipulated in the joint
memorandum of compromise entered into between the parties, based on which the
Adjudicating Authority was induced to dispose of the petition filed earlier, proved that
the corporate debtor had committed default in the payment of the amount due to the
operational creditor and as such the adjudicating authority was left with no option
In M/s. State Bank of India v. Mr. Subrata M. Maity, the NCLT, Chennai held that there
is no provision under the Code, which provides for any member of the CoC to vote in
favour of a resolution plan "under protest". The NCLT, Chennai noted that there must
be absolute clarity from the CoC members, whether to vote for or against the
resolution plan, and there should never be any ambiguity regarding the viability of the
resolution plan. If any CoC member has any doubts regarding the viability of the
resolution plan, then the only option available is to vote against the resolution plan, as
the CoC members are required to exercise their commercial wisdom with absolute
clarity. Hence, the NCLT, Chennai rejected the stand of the CoC member that it had
voted in favour of the resolution plan under protest and held that the CoC member
having voted in favour of the resolution plan, is estopped from challenging the
resolution plan.
In M/s. Sakthi Containers Private Limited v. M/s. Bnazrum Agro Exports Limited, the
file a fresh petition and cannot seek the restoration of the original petition; and
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(ii) given that the default due to the non-payment of third instalment pursuant to the
settlement agreement had arisen only on May 15, 2020 and the default amount in the
instant case was below the increased threshold of INR One Crore for the purposes of
initiating the CIRP which came into effect from March 24, 2020, the application of the
operational creditor for the initiation of the CIRP was not maintainable.
The NCLT, Chennai held that if the corporate debtor fails to comply with the terms of
the compromise and settlement, then the original insolvency application will be
restored, and the Adjudicating Authority shall take the same up for adjudication. The
NCLT, Chennai noted that if the insolvency application is not revived, then it will give
further room to the corporate debtor to violate any settlement arrived before March
24, 2020.
Another, the NCLT, Chennai held that even though Regulation 12(2) of the IBBI
(Insolvency Resolution Process for Corporate Persons) Regulations, 2016,
prescribing a timeline for the submission of claims, is directory in nature, the creditor
is required to furnish the reasons for the delay in the submission of its claim. Here, the
NCLT, Chennai refused to condone the delay of 217 days by the applicant in the
submission of its claim on the grounds that the applicant had failed to reason out the
delay in the submission of its claim and the quantified amount of the claim was under
dispute.
In Glix Securities Private Limited v. R.D. Rubber Reclaim Limited & Another, the NCLT,
Kolkata noted that there is no specific provision in the Code, which specifies the
applies to the Adjudicating Authority for the extension of the timeline of the resolution
resolution plan has been approved by the Adjudicating Authority, the CoC ceases to
exist, and therefore, the Adjudicating Authority cannot direct the CoC to consider the
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request. The NCLT, Kolkata stated that it is up to the Adjudicating Authority to decide
in such instances by invoking Rule 15 (power to extend time) of the National Company
In M/s. Siemens Financial Services Pvt. Ltd. v. Vinod Sehwag (Personal Guarantor of
Xalta Food & Beverages Pvt. Ltd.), the NCLT, New Delhi, while noting that there is no
straight-jacket formula applicable to the principles of natural justice, held that there is
application has been filed under S. 95 of the Code at the initial stage of the
Ss. 99(2) and 99(3) of the Code and before the adjudicating authority when the RP
submits his recommendation for approval of the application under S. 99(1) of the
Code.
In M/s. Essjay Ericsson Pvt. Ltd. v. M/s. Frontline (NCR) Business Solution Pvt. Ltd.,
the NCLT, New Delhi, following the decision of the NCLAT, New Delhi in Neeraj Jain v.
Cloudwalker Streaming Technologies Pvt. Ltd., held that it is not in the discretion of
the operational creditor to issue demand notice either in Form 3 or Form 4. According
Rules, 2016, if the claim of the operational creditor is based upon invoices, he is
required to serve demand notice only in Form 4 and not in Form 3. Further, the NCLT,
New Delhi, held that even when no reply is sent to the demand notice in terms of S.
8(2) of the Code, the corporate debtor can raise a dispute by filing a reply before the
Adjudicating Authority.
About The Authors: Siddharth is an advocate based out of Delhi. Karan is an advocate
based out of Mumbai. Soham is pursuing his B.A., LL.B. (Hons.) programme at
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NALSAR University of Law. The present compilation represents the exclusive work of
the authors in their personal capacities, and is not linked to any of the
institutions/firms that they may be associated with.
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