1st Edition

NCLAT JUDGEMENT SUMMARY FOR THE MONTH OF MARCH’ 2021 ON IBC, 2016

It gives us immense pleasure to share our 1st Edition of NCLAT Judgement Summary for the month of March’ 2021 covering summary/ gist of finding of
the Hon’ble NCLAT. The Judgement summary prepared by us is for the purpose of understanding in short about the Judgements passed by the Hon’ble
NCLAT.

Our objective to publish the present Article is to update the Professionals about latest Judgements passed by Hon’ble NCLAT and to enable them to
understand the rulings contained therein.

Our Editorial Board comprises of the following:

1. Dr. S K Jain, Practising Company Secretary, who is one of the senior most Practicing Company Secretary having a specialized practice in Companies
Act, Insolvency & Bankruptcy Code, 2016 and Securities Law. Dr. S K Jain is the originator of the idea to prepare the present Editorial for the sake of
updating the Professionals and making it convenient for the purpose of study and reference.
2. Mr. Yahya Batatawala, Advocate who is a Practising Advocate having a specialized practice in Companies Act, Insolvency & Bankruptcy Code, 2016
and Securities Law. Mr. Yahya Batatawala is associated with Dr. S K Jain and under guidance and support has support of Dr S K Jain has prepared the
Editorial.
3. Ms. Urmi Desai, Law student, who is a hardworking and dedicated person who has rendered help and support in preparing the present Editorial.

Your candid feedback is valuable. Appreciation will encourage us and criticism will help us to improve!
Feedback can be sent at: [email protected]

with Warm Regards,

Dr. S K Jain, Practicing Company Secretary (M.Com, FCS, LLB, Ph.D)

Adv. Yahya Batatawala (B.Com, LLB)

Dated: 15/04/2021

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 ABBREVIATIONS

AA- Adjudicating Authority

CD- Corporate Debtor
CIRP- Corporate Insolvency Resolution Process
DRT- Debt Recovery Tribunal
FC- Financial Creditor
IBC- Insolvency & Bankruptcy Code, 2016
IRP- Interim Resolution Professional
IO- Impugned Order
Ld.- Learned
NCLT- National Company Law Tribunal
NCLAT- National Company Law Appellate Tribunal
OC- Operational Creditor
OTS- One Time Settlement
RP- Resolution Professional
R- Respondent
u/s- under Section
S.- Section

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 NCLAT JUDGEMENT SUMMARY FOR THE MONTH OF MARCH’ 2021 ON IBC, 2016

Sr Date Citation Summary Finding

No
1. 01/03/2021 Manoharlal  Appeal was filed by on the ground that the opportunity of hearing was not provided by Breach of Rules of
Mehta & Ors VS NCLT, Mumbai Bench while sending the CD into liquidation u/s 33 of the IBC, 2016. Natural Justice.
Anil Vrijdas  During CIRP the COC didn’t receive any EOI or any Resolution Plan till the date of their
Rajkotia meeting held on 03/09/2020.
Resolution  Sending CD into liquidation by COC is not accountable under judicial review. Also COC,
Professional of K from the date of its constitution, is authorized to liquidate the CD any time before the
K Welding Ltd confirmation on Resolution Plan is received from AA.
(135/2021)  Therefore, Appeal was dismissed.

2. 01/03/2021 Oasis Suppliers  Appeal is filed against IRP as verification of claim is still pending. Claim verification is
Pvt Ltd VS  Due to non-availability of relevant account statement there is delay in verification. pending.
Amarpal Interim  Appeal is disposed off by permitting certain period of time to IRP for filing its report on
Resolution verification of claims which will enable the AA to pass timely Order.
Professional
Three C Shelter
Pvt Ltd.
(163/2021)

3. 02-03-2021 India Resurgence  Appeal is filed by dissenting Secured Financial Creditor and a COC Member primarily on the Principle
ARC Pvt Ltd VS ground that the approved Resolution Plan cannot be sustained as it failed to consider the of equality cannot be
Amit Metaliks Ltd valuation & quality of the security held by Secured Financial Creditor. stretched to treating
& Anr  Appellant further submitted that Section 30(4) of IBC was amended because erstwhile unequal’s equally.
(1061/2020) provisions failed to consider the value of the security interest of a secured creditor and
Order of priority among creditors which was ensured to be effected by amending the same.
 R1 has submitted that the interpretation of Section 30(4) of IBC dealt in relevant case law of
Supreme Court that COC at its discretion can take into account different classes of
creditors u/s 53 & enjoys flexibility to take into account value of security interest &

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 prioritizing distribution scheme of a Creditor while approving or rejecting a Resolution Plan.
It is a guideline and not compulsion. Therefore, cannot be the subject of judicial review in
Appeal within the parameters of Section 61(3) of IBC unless creditors belonging to a class
being similarly situated are not given a fair and equitable treatment.
 Hence, Appeal was dismissed as no merit was found as applicability of amended Section
30(4) of IBC is entirely discretionary and not imperative.

4. 02-03-2021 Gulabchand Jain  Appeal was filed against the Order of NCLT regarding liquidating the CD on Breach of Rules of
VS Ramchandra recommendation of PNB, sole member of COC. Natural Justice.
D Choudhary  The Appeal was dismissed by NCLAT advocating that COC is empowered to vacillate its
Resolution decision for liquidating the CD any time before receiving the confirmation by AA on the
Professional of Resolution Plan paced.
Vijay Timber
Industries Pvt
Ltd
(142/2021)

5. 02-03-2021 Vijay Sitaram  Aggrieved by the Impugned Order dated 06.11.2020, passed by NCLT, Mumbai Bench, Limitation
Dandnaik VS admitting the Section 7 Application filed by PNB, FC, Jailxami Sugar Products (Nitali)
Punjab National Private Limited, CD preferred this Appeal on the ground of Limitation.
Bank & Ors.  Contention of the Appellant was that the Petition was filed after six years i.e. in the year
(90/2020) 2019 from the date when the NPA was declared i.e. 31/03/2013.
Findings of NCLAT
 In the instant case the date of default (NPA) is 31.03.2013 and the Application u/s 7 was
filed on 10.10.2019
 The contention of the Bank was that there was another ‘Balance and Security Confirmation
Letter’ dated 03.07.2014, which is vehemently opposed by the Appellant on the ground that
it has not been filed before the AA, which would give a fresh lease of life to the debt, is
unsustainable as three years has lapsed for computing the limitation as the date of filing of
the Application is 10.10.2019.

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  Keeping in view the ratio laid down by the Hon’ble Supreme Court in the aforenoted catena
of Judgements, we are of the considered view that this Application u/s 7 is barred by
limitation as it is filed beyond three years of the date of NPA. Further, as we observe that
there is nothing on record to suggest that the Appellant has acknowledged the debt ‘within
three years’ and has agreed to pay the debt.
 For all the aforenoted reasons this Appeal is allowed and the Impugned Order is set aside.

6. 02-03-2021 Committee of  Appeal was filed by COC against the Impugned Order passed by NCLT, Mumbai Bench Interim Finance is
Creditors of directing the COC to provide interim funds to the Resolution Professional to run during the subject to approval
EMCO Ltd. VS CIRP period & to provide funds to meet the expenditure already incurred. by COC as per
Mary Mody &  COC contended on the grounds that directions of NCLT was passed without hearing COC Section 28 &
Ors. and is contradicting Section 5(13) of IBC. Further mandate of Section 25(2)(c) read with decision taken by
(307/2020) Section 28(3) of IBC was not fulfilled by RP to raise interim finance therefore, COC didn’t COC with majority
approve the same and decision is non-justiciable. vote share is non-
 R1 claimed dues of employees to be cleared as their services were not terminated during the justiciable.
period of CIRP, submitted further that CD was a going concern as RP/RP’s team visited Validating the reason
Plant thrice in Oct, 2019. of dissenting
 R2 contended that CD was not a going concern; COC was approached by RP many times to financial creditors
seek funds for starting the production. does not fall under
NCLAT is attentive on foremost points i.e. whether CD “a going concerns” & directing jurisdiction purview.
COC to provide interim funds to RP for CIRP & expenses incurred upto Dec, 2019 falls
within the purview of NCLT.
 NCLAT took the view that CD is not “a going concern” as only Plant visits by RP’s cannot be
construed to be of any documentary evidence.
 NCLAT observed that as per affidavit by RP confirming that CD is not a going concern and is
non-operational NCLT ought to have taken this aspect into consideration and heard the CoC
before issuing the directions.
 CoC approved salaries of only certain critical employees to ensure smooth CIRP process
towards the employees who were required to support the RP in discharging his duties.
 Any salary dues prior to the commencement of CIRP process will be considered by the
Resolution Applicant, whose Resolution Plan, if any, shall be approved by the CoC Members

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 & claims related to pre-CIRP cannot be raised.
 Appellant counsel referring the judgement of Tribunal held that ‘the Provident Fund, the
Pension Fund and the Gratuity Fund, do not come within the purview of ‘liquidation Estate’
for the purpose of distribution of assets under Section 53 of the Code.
 RP can raise Interim funds only subject to approval of the CoC by a vote of 66 % under
Section 28 & if CoC has by a majority vote rejected to raise, decision is non-justiciable.
Therefore, NCLAT holds that the direction given by NCLT are contrary to the provisions of
IBC. Hence, Appeal is allowed & Impugned Order is set aside.

7. 02-03-2021 Vidharbha  Appeal is filed to seek stay Order on admission or rejection of Application for initiating CIRP. No pre-existing
Industries Power  Appellant being a power generating Company claims that there is pending civil litigation condition can bring
Ltd VS Axis Bank before Appellate Tribunal for Electricity (APTEL) forum against Maharashtra Electricity stay on initiation of
Ltd Regulatory Commission (MERC) regarding recovery of fuel costs including carrying costs CIRP u/s 7 if it is in
(117/2021) aggregating to Rs.2100 crores. On implementing the APTEL judgment it will follow clearance compliance with
of dues by MERC which would aid in settling the claims of Respondent of Rs 553 crores. Section 7(4) & (5) of
Since, prima facie there is a clear intention of Appellant to clear the dues of respondent from I&B Code.
the pending recovery, Appellant contends that the admission and continuation of Section 7
proceedings will be detrimental to the interests of all stake holders including Respondent.
 Respondent contends that as per Section 7(4) of I&B Code within fourteen days of the
receipt of the Application the AA shall admit the Application subject to the completion of
Application as per Section 7(2) of I&B Code. However, in the said matter proceedings still
remains pending beyond fourteen days.
 Respondent further submits that causes like pending outcome of the proceedings before any
other Forum & liquidity issues should not impede admissibility or rejection of Application
u/s 7(4) & (5) of I&B Code.
 Respondent brings to the notice of authority that since Appellant did neither dispute the
existence of debt owed to the Respondent Bank nor did it raise any issue in regard to the
event of default as alleged, the debt and default are not disputed.
 Its therefore, clear that debt and default are not disputed. The financial woes of the
Appellant and the liquidity problems faced by it, whether forced upon it or of its own
making, have no bearing on commencement of insolvency Resolution and cannot be

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 permitted to be a stumbling block in triggering of CIRP at the instance of Financial Creditor.
The commencement of CIRP proceedings has already been delayed by one year much to the
chagrin of Respondent (Financial Creditor) who has been virtually compelled to be a
spectator helplessly watching the assets of Corporate Debtor getting depleted in value
 The Tribunal dismissed the Appeal by maintaining that the flow of legal process cannot be
permitted to be thwarted on considerations which are anterior to the mandate of Section
7(4) & (5) of I&B Code.

8. 02-03-2021 Subhash Agrawal  Appeal was filed on the grounds stating that the Application admitted by AA is in violation of Admissibility of
VS AU Small Section 7 of IBC due to inadequate statement of accounts also the agreement submitted as Application cannot
Finance Bank Ltd evidence is inappropriately stamped. be rejected on the
& Anr.  AA has observed that Application is filed by an authorized official within the law of grounds of disputed
(271/2020) limitation, confirming the existence of debt, debt due and defaulted by CD. Also duly default amount as
executed documents are submitted confirming creation of ROC charge for Rs 4 crore in this long as claim due is
regard. exceeding Rs. 1
 Appellant argues on the date of hearing that the default amount is disputed since it does Lakhs.
not reflect all the amounts which the bank has already recovered by way of selling the
mortgaged property and failed to take into account the payments already made. Further
interest charged is not in line with the agreement executed.
 Respondent submits that as long as default amount exceeds Rs. 1 lakh Application needs to
be admitted referring judgements passed by the Hon’ble Supreme Court taking the same
view.
 Tribunal on failing to find any valid submissions dismissed the Appeal taking the view that
CD is entitled to point out that a default has not occurred and is not liable to pay any
amount in law or in fact.

9. 03-03-2021 Tarun  Impugned Order dated 01.10.2019 by NCLT, Jaipur Bench directed Tarun International Ltd, Whether NCLT can
International Ltd. Appellant (Auction purchaser) to bear all the liabilities attached with the acquired asset of direct the auctioneer
VS Vikram Bajaj Anil Special Steel Industries Limited-CD, (ASSIL) via auction by FC. Being aggrieved, to bear the liabilities
(RP for Anil Appellant assailed the Impugned Order by an instant Appeal. attached to property
Special Steel  Allahabad Bank, FC e-auctioned on 20.12.2017 one of the asset of CD under SARFAESI sold under

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 Industries Ltd) & with a stipulation ‘as is where is basis, as is what is basis, whatever there is basis’ which SARFAESI though
Ors. implied that it shall also acquire all the liabilities thereon, on which it received a bid on CIRP was not
(1194/2019) 15.12.2017 from Appellant alongwith earnest money deposit (EMD for participation. initiated
 On receipt of EMD when FC intimated about demand letters for pending dues which are yet
to be crystallized & sale certificate will be issued after passing of necessary Orders,
Appellant stated all the conditions imposed post acceptance of EMD as illegal & asked either
to cancel the entire bid process and refund security or let the bid process be carried to its
logical conclusion, the Appellant being ready to deposit the balance amount of 25% of the
bid amount minus Rs.2.74 Crores when the Bank would be able to issue the sale certificate.
 Transaction of sale was completed before commencement of CIRP i.e. on 05.03.2018, vide
Registered Sale Certificate (dated 09.02.2018) stating ‘free from all encumbrances’ under the
SARFAESI Act, 2002 along with certificate from officer of FC stating the possession of the
property has been handed over to the Appellant free from all encumbrances.
 Dispute mentioned in Appeal is whether liabilities attached with the acquired asset prior to
CIRP pertains to CD or the Appellant.
 Appellant laid emphasis on the fact that the AA had no jurisdiction as sale transaction
completed prior to initiation of CIRP.
Issue raised whether the Sale of only Part of the Assets of the Corporate Debtor under the
SARFAESI Act can be considered the Sale of a Company (or Part thereof) as a going
concern to make the purchaser liable?
Members of NCLAT has recorded separate findings in this matter, namely:
Findings by Chairperson Justice B.L. Bhatt
 Considered opinion that the Appellant-auction purchaser had accepted the acquisition of an
asset with express stipulation in auction notice & relevant docs connected with sale
proceedings under the Ac, 2002 it cannot unilaterally back out of such liabilities.
Mentioning that it was free from encumbrances on the basis of registered sale certificate
would be inconsequential. Hence Impugned Order does not suffer from any legal infirmity
and factual frailty. Appeal stands dismissed.
Findings by member V.P. Singh(Technical)
 Section 18(1)(f)(vi) have made the task of the IRP in taking control and custody of an asset
over which the CD has ownership rights, subject to the determination of ownership by a

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 Court. In the instant case though IRP was authorized to take over assets of CD but it cannot
take over which was already sold & no more belongs to CD.
 As auction purchaser was a third party which had no concern with the CIRP Debtor's
liability can't be fastened on the third party and that too by exercising powers as an AA u/s
60(5) of the IBC, 2016.
 NCLT had no authority to fasten the CDs liability on the auction purchaser as they acquired
only part of the asset of the CD and not the Company itself. Also where the Sale is made
under the SARFAESI Act, then after completing the sale process and issuance of the Sale
Certificate, the AA had no authority to pass an Order U/S 60(5) of the Code.
 He held that the AA under the IBC, 2016 had no jurisdiction to determine a bona fide
auction purchaser's liability under the SARFAESI Act's provisions; the same has been
purchased before the commencement of CIRP of the CD.
 Further exercising its power u/s 60(5) of the Code, the AA has exceeded its jurisdiction in
determining a third party's liabilities, which had no role in the CDs Insolvency Resolution
Process.
 It was erroneously determined by NCLT the Sale of assets as a Sale of Company as a going
concern.
 Appeal deserves to be allowed by setting aside the Impugned Order. However, the majority
view authored by separate Judgement brother Hon'ble Acting Chairperson Justice B.L.
Bhatt shall prevail.

10. 03-03-2021 Durga Prasad  Aggrieved by the Impugned Order dated 21.11.2019 by NCLT, Kolkata Bench on Limitation & whether
Agarwal & Anr. admissibility of Application u/s 7 of IBC by Limtex Tea & Industries Limited (FC), CD filed NCLT to ascertain
VS Limtex Tea & an Appeal on the grounds of limitation & reliability on the documentary evidence validity of debt ack.
Industries Ltd & acknowledging the debt is questioned. document.
Anr.  FC claims that loan of 25 lakhs was given to CD & same was acknowledged by both the
(1496/2019) parties vide letter dated 06/11/2011 & on demand CD repaid the debt amount via cheque
dated 27/04/2015 which was bounced on 22/06/2015 marked ‘insufficient funds’
 Demand Notice & request letter dated 29/06/2015 & 23/02/2018 respectively was issued
to CD demanding the repayment but failed to get any reply.
 Appellant contends that Application u/s 7 of IBC barred by limitation & denies issue of

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 cheque dated 27/04/2015 alleges signature is forged and requests NCLT for verification by
CID, West Bengal of original cheque.
Question for consideration
i) Whether the Application u/s 7 of the IBC filed by the R1 is barred by limitation?
ii) Whether the cheque relied upon to establish acknowledgement of debt was genuine?
 Findings of NCLAT are that Application admitted u/s 7 of IBC is dismissed as it breaches
limitation act; default occurred on 01/04/2014 & Application was filed on 17/04/2018.
 AA failed to consider the legitimacy of cheque dated 27/04/2015. Thus, the Impugned
Order is set aside & Appeal is allowed.
11. 04.03.2021 Rajesh Goyal. VS  Appeal was filed by Rajesh Goyal, (Promoter and FC) for exclusion of the period from the Embarked Reverse
Babita Gupta & date of judgment till further directions as a zero period & to seek extension of timelines CIRP
Ors. stipulated in judgment dated 05.02.2020 passed by NCLAT due to outbreak of COVID-19.
(1056/2019)  NCLAT in the mentioned case embarked upon an experiment to introduce the concept of
“Reverse CIRP” by making home buyers as stake holders & looking beyond the third party
Resolution Plan approval. IRP was directed to collate the claims & based on the voting share
of Allottees it permits the investment by promoter as an outsider FC & mandate to cooperate
with IRP for project completion.
 In the instant case holding the concept of Reverse CIRP & invoking Rule 11 of the NCLAT
Rules, Tribunal had directed promoter to cooperate with IRP, to disburse amount as FC &
timelines were set. Explicitly stated that during CIRP, the IRP can also sell the unsold flats
by way of Tripartite Agreement: Purchaser-IRP/RP- Promoter. On project completion IRP will
apply for disposal of Section 7 of IBC. Further in case of failure by promoter to cooperate &
to invest NCLT will complete the CIRP.
 In the interest of all stake holders & considering the hardships faced due to pandemic
members allowed to extend the timelines envisaged in the Judgment dated 05.02.2020
without altering, substituting or modifying its structural terms. This should not be viewed to
condone the default but only to promote the ends of justice.

12. 04-03-2021 Rajendra Kumar  Appeal is filed against an Impugned Order passed by NCLT, Mumbai admitting the Fresh period of
Kundanmal Jain Application dated 03.06.2019 u/s 9 of IBC by OC on the grounds of limitation. limitation began in
VS Vijail A. Jain  The Hon’ble Supreme Court has held in the referred case that in case of post-dated cheque, case of conditional

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 & Anr. a fresh period of limitation began from the date of cheque. Further S. 20 of Limitation Act payment instrument.
(366/2020) inter alia lays down that where payment on account of debt is made before the expiration of
the prescribed period by the person liable to pay the debt, a fresh period of limitation shall
be computed from the time when the payment was made. Where therefore the payment is by
cheque and is conditional, the mere delivery of the cheque on a particular date does not
mean that the payment was made on that date unless the cheque was accepted as
unconditional payment. Where the cheque is not accepted as an unconditional payment, it
can only be treated as a conditional payment. In such a case the payment for purposes of s.
20 would be the date on which the cheque would be actually payable at the earliest,
assuming that it will be honoured.
 In the instant case goods delivered by OC to the Appellant between 2014-15 & cheque dated
12.01.2016 issued for part payment was dishonored for the reason “Payment stopped by
drawer”. Demand Notice dated 16.10.2018 issued didn’t receive any reply. Cheque which
was issued by the Appellant on 12.01.2016 was dishonored which is within the period of
limitation though dispute pertains to 2014 & 2015. Hence Appeal being devoid of merit is
dismissed.

13. 05-03-2021 State Bank of  Appellant filed the Appeal contending that AA failed to consider the fact of acknowledging Limitation
India VS Vibha the debt and default by the Respondent & rejected the Application filed u/s 7 of IBC seeking
Agro Tech Ltd initiation of CIRP taking the grounds barred by limitation.
(636/2020)  Taking the view from the referred Supreme Court judgement the date of NPA is the date of
default which in the instant case is 30.04.2013 & the Application date is 12.09.2018 which
is beyond three years as permitted by limitation.
 Further submitted that there was Acknowledgement of Indebtedness via Master
Restructuring Agreement (MRA) dated 26.09.2013. However, CD exited from the MRA on
31.01.2015. Therefore, no reliance can be placed upon the ack on MRA. Even otherwise the
MRA date is beyond three years.
 Since there is no specific ack. in writing admitting the debt within the period of limitation
the Appeal is dismissed as devoid of merits.

14. 05-03-2021 Mazda Agencies  The Appeal is filed against an Impugned Order dated 07.07.2020 passed by NCLT, Limitation

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 VS Hemant Ahmadabad Bench rejecting S. 9 Application on the grounds of limitation.
Plastics & The issue to be dealt by NCLAT:
Chemicals Ltd (a) Whether as per section 22(1) of the SICA the legal proceedings for recovery of Operational
(763/2020) Debt were suspended, if yes?
(b) Whether as per section 22(5) of the SICA the Appellant is entitled to get exclusion in
computing the period of limitation spent in SICA Proceedings?
 CD ack. outstanding due of Rs. 1,48,11,572/- as on 31.12.2004. On failure on part of CD
for further payment it was referred to BIFR & vide Order dated 17.07.2013. BIFR allowed
the scheme for rehabilitation of the Respondent Company (CD). Appellant (OC) was
permitted to proceed with pending Civil Suit by the Appellate Authority vide Order dated
17.09.2014 modifying BIFR Order. The same was challenged by Respondent in Gujarat High
Court who remanded the Application to Appellate Authority. It was upheld by Appellate
Authority that Appellant has the liberty to approach the BIFR praying for execution of
decree, if any in case objects of the scheme have already been fulfilled and the Respondent
Company stands revived even prior of the completion of the scheme. On repealing SICA
w.e.f. 01.12.2016, Notice u/s 8 of IBC was served by OC to CD. Application u/s 9 filed on
24.11.2017.
 NCLAT observed that during sanction of the rehabilitation scheme Appellant sought consent
of the Board to approach appropriate Civil Court for adjudication of its dues. It means the
Appellant was not part of the Scheme and he intends to approach Civil Court for recovery of
operational debt. Hence, it cannot be said that the legal right of remedy of the Appellant
against the Respondent was suspended as per section 22(1) of the SICA.
 Addressing the second issue NCLAT held that since Appellant not being part of BIFR
scheme as he had obtained consent of the Board to proceed with civil suit the remedy
against Respondent (CD) is not suspended. Hence, to avail extension of limitation by virtue
of exclusion of period of suspension is not valid.
 The Appeal is dismissed.

15. 08-03-2021 Orator Marketing  Appeal filed against an Impugned Order passed by NCLT, Delhi Bench dated 23.10.2020 “time value of
Pvt Ltd VS rejecting an Application filed u/s 7 of IBC holding that there was a mere grant of loan and it money” an important
Samtex Desinz was not a financial debt. factor for financial

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 Pvt Ltd  In the instant case, the CD was unable to get any further loan from the market after having debt.
(1064/2020) taken loan from M/s. Tata Capital Financial Services Ltd., M/s. Sameer Sales which was
related party to the CD, extended interest free unsecured loan to the CD. Subsequently,
M/s. Sameer Sales Pvt. Ltd. (the original lender) assigned the outstanding loan to the
Appellant.
 The narrow question involved is whether the transaction concerned can be treated as a
transaction of Financial Debt as defined in S. 5(8) of IBC. If the money borrowed is not
against payment of interest, under the definition of financial debt, the core requirement is to
find whether there is “consideration for the time value of money”. It is advocated by Tribunal
that the term “time value of money” has to be a consideration for the FC. How the CD will be
using the money, cannot be stated to be the consideration for time value of money for the
FC.
 Further, the basic nature of the loan will not change merely because the original lender has
extended simple debt to the sister concern which is now assigned to the Appellant will not
change the nature of the transaction.
 Hence, the transaction is not a transaction of financial debt and thus declined to admit the
Application u/s 7 of IBC.

16. 08-03-2021 State Bank of  The question of law involved in this Appeal is whether for the debt due is it admissible for As per S.60
India VS the Financial Creditor to file separate claims:- simultaneously two
Animesh In the CIRP of the Corporate Guarantor; and CIRPs is
Mukhopadhyay, In the CIRP of the Principal Borrower. maintainable against
RP of Zenith  The Impugned Order is set aside stating that till payment is received in one CIRP, claim can Corporate Debtor &
Finesee India Pvt be maintained in both CIRPs for same amount and representation in CoC in both CIRPs to Principal Borrower.
Ltd the extent of amount due will be justified. Section 60 of IBC makes the two CIRPs
(186/2021) maintainable even if different IRP/RP is there in the two CIRPs as it would be just a matter
of co-ordination between the two IRPs/RPs.
 Hence, Appeal is allowed.

17. 08-03-2021 Palm Products  Appeal arises out of Impugned Order dated 12.08.2020 passed by the NCLT, Hyderabad Rights of the assignee
Pvt Ltd VS TVL Bench in which Application of the Appellant was rejected which sought directions against are no better than

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 Narsimha Rao & RP of CD seeking acceptance of claim and to declare Appellant FC accepting Assignment those of the assignor
Anr Deed and entry in CoC. and that assignee
(809/2020)  RP (R1) while admitting the claims of R2 (Assignor) under CIRP had treated as FC (Related steps into the shoes
Party). of assignor.
 On being held by AA to be Related Party (RP) u/s 29A of IBC. R2 kept the shares and
transferred debt to the Appellant vide assignment deed dated 18.05.2020 registered on
15.07.2020 of Rs. 60.48 crores in the course of CIRP at the discounted price of Rs. 10
lakhs. Therefore, Appellant claims the status of ‘FC’ (non-related party) as only debts have
been assigned along with underlying securities & not the shares.
 RP submitted that in the matter “Fortune Pharma Pvt. Ltd.” decided by the NCLT, Mumbai
Bench that rights of the assignee are no better than those of the assignor and that assignee
steps into the shoes of assignor.
 NCLAT recorded that there is no dispute with regard to the fact that Order of AA dated
20.11.2019 in which claim of R2 as not a Related Party was rejected. Therefore, as the said
Order was not challenged & became final, NCLAT cannot go into those particulars.
Therefore, it was declined to interfere & Appeal is dismissed.

18. 08-03-2021 Edelweiss Asset  Appeal is filed against Application rejected by AA which involved the issue that if CIRP has FC can proceed
Reconstruction been initiated against the principal borrower, could the Appellant have filed claim in CIRP against the Principal
Company Ltd. VS initiated against the Corporate Guarantor. borrower as well as
Gwalior Bypass  The Tribunal is of the view that simultaneously remedy is central to a contract of guarantee Corporate Guarantor
Projects Ltd. and where Principal Borrower and surety are undergoing CIRP, the Creditor should be able at the same time,
( 1186/2019) to file claims in CIRP of both of them. The IBC does not prevent this. either in CIRPs or file
Therefore, the present Appeal is allowed & Impugned Order is quashed & set aside. claims in both CIRPs.

19. 15-03-2021 Interups Inc VS  Appellant being an aggrieved party against an Impugned Order dated 26.10.2020 by NCLT, Any person
Kuldeep Kumar Delhi Bench regarding approval of the Resolution Plan with respect to the CD & seeking aggrieved, comprises
Bassi & Ors directions for consideration of its Resolution proposal. of stakeholders in
Resolution  In the instant case, EOI was issued on 14.12.2018 and the last date to submit was the process of CIRP
Professional of 08.03.2019. Resolution Plan of R3 got CoC approval on 28.06.2019 with 79.30% voting and Liquidation
Asian Colour share & Application seeking RP approval filed on 10.07.2019. On 12.06.2020 Appellant had Process, by the Order

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 Coated Ispat Ltd ask for EOI & filed an applicant on 09.07.2020 for directions to the RP and CoC to consider of approved
(1079/2020) its proposal, albeit without any proposal at all, for RP to provide access to data room and Resolution Plan can
other information, to enable it to present a Plan at such belated stage. only file an Appeal.
 It is held that any person aggrieved by the Order of AA can prefer an Appeal before the
Appellate Tribunal which comprises of stakeholders in the process of CIRP and Liquidation
Process. Appellant was held as a stranger to the CIRP & cannot be termed as aggrieved
party. Therefore, Appeal is held to be not maintainable.
 Pendency of avoidance Applications does not vitiate the approved RP, its not a pre-requisite
for approval of Resolution Plan.
 Appeal dismissed. Pending Application, if any, stands disposed off.

20. 16-03-2021 Mr Kuldeep  The grievance of the Appellant – RP; is that as on 01.01.2021 despite lapse of 981 days NCLT took 981 days
Verma Resolution from the date of filing of the Application seeking Order of liquidation of Corporate Debtor as to decide the IA for
Professional M/s no Resolution Plan has been approved by the CoC within the permitted time of CIRP u/s 12, Liquidation which
KS Oils Ltd VS instead the AA has dismissed the Interlocutory Application (‘IA’) as not maintainable and was dismissed as not
State Bank of being infructuous. maintainable &
India and Ors Facts of the instant case: infructuous. Timeline
(98/2021)  SREI submitted a Resolution Plan on 09.04.2018 stands to be rejected on 13.04.2018 by a u/s 12 of IBC has to
vote of 71.34% in CoC meeting. On conclusion of 270 days on 16.04.2018 without a adhered by NCLT as
Resolution Plan approved by CoC, the RP filed a liquidation Application. However, AA kept Time is the essence
asking RP to consider different addendums submitted by SREI, before CoC between May, of the Code.
2018 to August, 2019 and all were rejected by majority vote. Appellant Tribunal passed an
Order dated 18.11.2019, arising from an Appeal filed by SBI (member of CoC), to allow CoC
to consider the ‘revised Plan’, if any, filed or is to be filed within a week & in case of failure
to receive any, the Adjudicating Authority will take up the Application under S. 33 of IBC &
pass appropriate Order in accordance with law. Adjudicating authority failed to comply with
the Order of NCLAT & almost 31 hearing were held.
 In the meantime, Om Shri Shubh Labh Agritech Private Limited on 25.02.2021 seeks to
infuse funds with a view to revive operations.
 NCLAT rejected the intervene Application on the grounds that allowing a party to enter the
fray after 3 years of issue of EOI is neither warranted by the Regulations nor by the Code.

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 Further as well established that AA nor the Appellate Authority is supposed to look into the
commercial wisdom of CoC or to reverse the Commercial wisdom of CoC, AA may not have
allowed repeated reference of Resolution Applicant for the consideration of CoC when CoC
was repeatedly rejecting their variants of proposals.
 Hence, the relief sought by Appellant was allowed by setting aside the Impugned Order
dated 01.01.2021 and at the same time the Order for initiation for liquidation of the CD also
allowed.

21. 16-03-2021 Dr Krishan  Appeal filed against the Impugned Order dated 13.01.2021 passed by NCLT, Delhi Bench on Person who is
Mohan the ground that the AA failed to appreciate the fact that the COC did not consider the ineligible to submit a
Mendiratta VS Resolution Plan of higher value submitted by Dr. Rajendar Singh viz. Rs. 32 Crores and Resolution Plan &
State Bank of approved the Resolution Plan of Successful Resolution Applicant having value of Rs. 30.10 participate in
India & Anr Crores. CIRP, cannot even
(145/2021)  The finding of Tribunal is that since the Appellant himself was not in the fray and as a espouse cause of
member of the suspended Board of Directors was ineligible to submit a Resolution Plan, he Unsuccessful
could not be permitted to espouse cause of Unsuccessful Resolution Applicant thereby Resolution Applicant.
trying to meddle with the affairs of the CIRP when the law forbids it to participate in such
process.
 The Appeal is non-maintainable and hence dismissed.

22. 16-03-2021 Solenis  Appeal is filed against an Order passed by NCLT, Chennai Bench dated 05.05.2020 whereby Application for
Chemicals India Application u/s 9 of IBC has dismissed. initiation of CIRP can
Pvt Ltd VS Arjun  OC has supplied chemicals and other materials to Corporate Debtor. Various invoices raised be rejected on the
Pulp and Paper as per the terms and conditions contained in the said invoices. grounds of pre-
India Pvt Ltd  The OC has claimed an amount of Rs. 63,54,412/- along with interest from CD. Notice of existence of dispute
(707/2020) dispute is sent by CD on 01.08.2018 after that it was assured that the outstanding amount among parties.
will be paid within a month but no outstanding debt was paid.
 OC raised Demand Notice u/s 8 of the IBC on 05.09.2018 which was delivered on
15.09.2018 to which CD reverted vide Notice of Dispute dated 17.09.2018.
 The Tribunal held that Letter dated 17.09.2018 by Respondent clearly shows that there is
pre-existing dispute between the parties much prior to issuance of Demand Notice.

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 Representatives of Appellant had visited the CD’s office on 17.07.2018 and were informed by
them that the Appellant is ready to resumption of further supply on 90 days L.C. but this
fact has been concealed in the notice issuance of u/s 8 of the IBC.
 No merit is found in the Appeal therefore dismissed.

23. 16-03-2021 Gursharan  OC filed an Application u/s 9 of IBC before NCLT, Delhi & Application was admitted on Time to prefer an
Singh. VS The 08.05.2019. Appeal is filed for Condonation of Delay for preferring an Appeal against an Appeal u/s 61 is the
State Trading Order admitting the said Application. maximum time. No
Corporation of  U/s 61 of IBC the Appeal has to be filed within 30 days and the delay which this Tribunal shelter can be taken
India Ltd. & Anr. can condone is only of 15 days. In the instant case even if its considered the last day of the for delayed receipt of
(853/2019) first week and treat that the letter(Order) dated 30.05.2019 was received on 07.06.2019 the CC of Order
Application for certified copy was filed only after consuming 30 days 08.07.2019. The
certified copy was received on 15.07.2019. Another 28 days were consumed and the Appeal
was filed only on 13.08.2019. This being so, the earlier consumed 30 days and
subsequently consumed 28 days calculate to 58 days taken for filing of the Appeal.
 The Application to condone the delay is rejected. The Appeal being time barred, the same is
rejected.

24. 17-03-2021 BS Krishan VS  Appeal is filed against the Order dated 25.01.2020 passed by NCLT, Special Bench, Limitation
Stressed Assets Chennai, whereby Application u/s 7 of IBC filed by FC against CD was admitted. The point
Stabilization of consideration is whether ‘Date of Default’ can be shift forward on the basis of the
Fund SASF & Order passed by the DRT-II.
Anr  Sketchy facts of the case: FC disbursed loan twice to CD of Rs 650 Lakhs & 400 Lakhs for
(521/2020) the period 21.03.98- 08.12.99 & 16.06.2000- 28.09.2000 respectively. The CD defaulted in
repayment of loan facilities and accordingly on 15.01.2002 the IDBI recalled the said loan
facilities against the CD, thereby demanding payment.
 On failure by CD to comply, FC on 06.02.2002 filed an O.A. No. 78 of 2002 before the DRT-I
Chennai. CD ack. the debt periodically in the year 2008, 2014, 2016 & 2017.
 Application u/s 7 of IBC filed on 23.01.2019 as loan was not repaid. During the pendency of
the Application, DRT-II has allowed on 29.04.2019 in favour of the FC and subsequently,
issued a Recovery Certificate dated 16.01.2020 in favour of the FC against the CD for a sum

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 of Rs. 11,05,92,791 alongwith 12% simple interest p.a.
 NCLAT held that the right to sue accrues when a default occurs. If the default has occurred
over three years prior to date of filing of the Application u/s 7 of the IBC; the Application
would be barred by the Limitation Act. The date of right to sue can be extended only when
the debt is acknowledged by the CD within limitation of 3 years. In this case loan a/c was
declared NPA before 2001 and thereafter, there is no Ack. of debt within limitation of three
years and it is clear that the Judgment/decree passed by the DRT-II on 29.04.2019 cannot
shift forward the date of default for the purpose of computing the period for filing an
Application u/s 7 of IBC.
 Hence, Order dated 25.01.2020 is set aside as barred by limitation and was not
maintainable.

25. 17-03-2021 Maldar Barrels  The Appeal is preferred on the ground that the NCLT, Kolkata Bench has gone beyond the Whether delay in
Pvt Ltd VS mandate of S. 9 of the IBC in passing the Impugned Order dated 13.02.2020. payment of
Pearson Drums &  Facts of the case: In a business transaction between both the Parties, CD failed to pay an instalments
Barrels Pvt Ltd amount of Rs.8,82,11,723/- to the OC which was due and payable. So Application u/s 9 of constituted default
(872/2020) IBC is filed on 09.08.2017 by OC. AA admitted the Petition and initiated CIRP. under the terms of
 Thereafter settlement was accepted by both the parties and entered into on 11.01.2018 in the Settlement
which debt owned of Rs 8,82,11,723/- was fully and finally settled at a total amount of Agreement
Rs.3.70 crores to be paid in 37 instalments on or before 21st day of every month for the leading to triggering
next 37 months starting from January 2018. of the revival of the
 Appellant claimed that timeline was the “essence of the contract”. On multiple defaults by old Application or
CD between Jan, 2018- August, 2018, a Demand Notice dated 27.06.2019 was sent. filing of a
Subsequently, the OC filed a fresh Application u/s 9 for CIRP against the CD for non- fresh Application
payment of total due of Rs.9,41,85,391/- in accordance with the terms of the Settlement. under Section 9 of
The same was dismissed by NCLT holding that it was not the forum where parties could the IBC
seek implementation of the Settlement Agreement and that too after the Appellant had
accepted a major portion of the amount due. Appellant has argued that in accordance with
Clause 11 of the Settlement, the Appellant is at liberty to file new proceedings against the
CD or to revive the aforesaid Application.
 CD claims that once the Respondent continued to accept payments without retaining any

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 rights under the terms of settlement, no right was reserved by the Appellant in that regard.
In many cases the date of deposition of cheques were presented after 21st of the month in
the bank the realization of the related amounts was also delayed. These delays were due to
the Appellant and the CD can’t be held responsible.
 NCLAT concludes that prima facie, time was not essence in the Settlement Agreement. we
come to the unambiguous conclusion that the Appellant has not been able to make out a
clear-cut case in his favor. The Settlement Agreement, as has been operated by both the
parties, does not show that time was of essence in it. Moreover, the Corporate Debtor has
paid the full and final settlement amount by January, 2021 to the OC. Therefore, the term
of the Settlement Agreement that provides for reinstatement or fresh filing of the Application
for initiating CIRP for the CD is not triggered.
 Consequently, Appeal is dismissed.

26. 17-03-2021 Ram Ratan  The Appeal is filed by RP of assailing the Order dated 04.08.2020 passed by NCLT, No directions can be
Kanoongo VS Hyderabad bench directing RP to make payment of the salary to the R1 (Ex-Director of CD) issued to RP post
Veda Kumar as per amount acknowledged by the RP, in accordance with the provision of IBC and Resolution Plan's
Nimbagal & Ors Regulations thereof. approval and
(906/2020) Issue: Whether the AA can issue the directions to erstwhile RP once the Resolution Plan implementation.
under S.31 of the IBC, 2016 has been approved, and the RP has been discharged of his
duties?
 Facts: R1 had file a claim with RP seeking the release of his claim towards payment of
salary to the tune of Rs.13,50,000/-. RP evaluated the claim and partially admitted the
claim to the tune of Rs. 5,40,000/-, based on the calculation of the salary dues up to the
date of commencement of CIRP i.e. 18.09.2017. Aggrieved by it, R1 had preferred an
Application before NCLT. Hon’ble NCLT vide Order dated 19.07.2018 upheld the decision of
RP. R1 had never challenged the Order dated 19.07.2018 before Appellate Authority and
hence, it attained finality.
 RP contends that after the approval of the Resolution Plan, working as a member of the
Monitoring Agency, he filed an Application against the Directors of the CD, including R1 on
being aggrieved by non-cooperation in smooth implementation of the Resolution Plan by the
Ex-Directors in approving and signing the financial statements for the FY 2014-15 to 2017-

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 18 to handover the updated financial statement to the successful Resolution Applicant. The
AA vide Order dated 19.12.2018, while disposing of the Applications, directed R1 and other
Ex-Directors to cooperate with RP and further sign and approve the CD's financial
statements for FY 2014 -15 to 2017-18.
 After that, R1 filed an Application for modification of an Order dated 19.12.2018 sought
relief to release the payment of his salary dues to the tune of Rs. 20,38,000/- despite
completely aware of the Order dated 19.07.2018 that his total claim about outstanding
salary dues is finally settled.
 NCLAT held that the R1 had earlier raised a claim of salary dues, which was finally settled
by the Order dated 19.07.2018 Admitted amount of salary dues has been dealt with AA in
terms of the approved Resolution Plan. Any claim for the CIRP period could have been
raised before approval of a Resolution Plan. After the Resolution Plan's approval and
implementation, no direction can be issued to the erstwhile RP on account of any belated
and settled claim. Successful Resolution Applicant cannot be burdened with the claim/dues
of the CD.
 Hence Appeal was allowed and the Impugned Order to be set aside.

27. 17-03-2021 Next Education  NCLT, Bengaluru rejected the Application u/s 9 of IBC on the grounds of: Limitation & Pre-
India Pvt Ltd. VS (i) Claims being time barred & existing dispute
K12 Techno (ii) pre-existing dispute.
Services Pvt ltd.  Aggrieved by the Impugned Order, the present Appeal is preferred. The two main points for
(98/2019) consideration in this Appeal are whether the AA was justified in holding that;
i) the Section 9 Application was barred by limitation
ii) that there was a ‘Pre-Existing Dispute’ prior to the issuance of the Demand Notice under
Section 8(1) of the Code.
 Addressing the first issue about Application barred by limitation. Master License Agreement
dated 03.01.2011 was executed between CD & OC. During the transactions, 187 invoices
were raised from 12.03.2011-30.06.2017 for Rs. 2,39,85,521.35/-. Letter dated 11.09.2015
sent by CD pertaining to an audit confirmation wherein there was an express admission for
an amount of Rs. 2,46,61,404 which OC seeks to establish ‘Acknowledgement of debt’. An
Addendum Agreement dated 01.07.2016 was entered into between the parties wherein an

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 Rs. 2.69/- Crores was once again confirmed as payable by the CD. On delay in payment a
Demand Notice dated 08.08.2017 issued to CD crystallizing the amount at Rs.
2,39,85,521.35/-, which is unpaid from 2011 by cumulative invoices.
 Contention by Appellant that the earliest invoice in the three years preceding 26.10.2017 is
dated 02.04.2015 and the latest invoice is dated 30.06.2017 hence, the question of the
Application being barred by limitation does not arise, cannot be sustained. Right to
Application as per Article 137 of the Limitation Act, 1963 first accrued within three years of
12.03.2011 (i.e. date of default), which limitation ends on 12.03.2014, correspondence by
CD on 12.09.2015 is beyond three years of the date of default. Hence, these documents do
not extend the period of limitation. Therefore, Application u/s 9 is barred by limitation.
 Addressing the second issue that whether there was any ‘Pre-Existing Dispute’ prior to the
issuance of the Demand Notice. CD claims that an amount of Rs. 25/- Lakhs was failed to
be spent on advertising by OC. The same is specifically denied by OC. E-mail
correspondence between 2012-2015 relate to regular day-to-day issues nowhere in this
correspondence any issue with respect to training or payment of Rs. 25/- Lakhs or any
other breach of the clauses of the Master Licence Agreement has been raised. The Demand
Notice under Section 8(1) dated 08.08.2017 and the Reply which was filed for the very first
time raises these issues. NCLAT considered view that there is no ‘Pre-Existing Dispute’
between the parties.
 Appeal is dismissed.

28. 17-03-2021 Albanna  Appeal has been filed against an Order dated 20.04.2020 passed by NCLT, Kochi Bench Rule of Natural
Engineering LLC. directing to invoke both the Bank Guarantees immediately provided by the parent Company Justice.
VS Sanghvi of CD, i.e., Albanna Engineering LLC and to keep the proceeds in an interest-bearing fixed
Movers Ltd. & deposit with itself in the name and style of “Bharat Petroleum Corporation Limited-Account
Ors. Albanna Engineering” until further Orders.
( 481/2020)  Findings of NCLAT are that the Appellant - M/s Albanna Engineering LLC has not been
made a party in the Impugned Order passed by NCLT, Kochi Bench so considered view that
the Impugned Order cannot be sustained in the eye of law and natural justice has been
violated. Therefore, Order of NCLT is hereby set aside.
29. 18-03-2021 Gyanchand  Appeal filed by shareholder of CD assailing the Order passed by NCLT, Jaipur for admitting CIRP cannot be

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 Mutha VS Aditya an Application u/s 9 of IBC against CD. initiated against
Birla Money Ltd.  The CD (R2) availed services of OC (R1) by opening a trading account and did trading from NBFC.
& Anr. Sept, 2017-Nov, 2017. Notice dated 21.12.2017 was sent by OC claiming outstanding
(346/2020) amount of with interest. On failure to receive any payment notice u/s 8 was issued dated
15.03.2018.
 Since CD claims to be NBFC and is therefore, protected from Application of provisions of
IBC as it does not falls within the purview of S.3(7) of IBC. AA has at the time of hearing the
Application, directed the CD to show that it was still functioning as NBFC. Hence, CD via
certificate issued by RBI tried to satisfy the AA that it was working as NBFC and that it was
protected as the Company was still functioning as NBFC and had even filed its Returns with
the Reserve Bank of India till 06.11.2019.
 The contention of FC of being deceived by CD as it with malafied intention ticked on “public
Limited Co’ instead of “financial institution” on the KYC form is held to be inappropriate and
for such actions CIRP cannot be invoked.
 Further, considering the position of law, it appears to NCLAT that the AA could not have
initiated CIRP when the CD did not fall in the concerned definition of ‘Corporate Person’
under IBC.
 Therefore, the Appeal is allowed & the Impugned Order is quashed & set aside. The
Application u/s 9 of IBC filed by OC is dismissed.

30. 22-03-2021 Abhinandan Jain  The present Appeal is preferred against the Impugned Order dated 31.08.2020 passed by Limitation, Pre-
VS Tanaya the NCLT, Mumbai Bench, admitting the Application filed by the Respondent, OC u/s 9 of existing dispute &
Enterprises Pvt IBC. servicing of demand
Ltd  The main submissions of the Appellant Counsel are three fold:- notice.
(1017/2020) (a)Notice mandated under Section 8 of the IBC, 2016 was never served upon them.
(b)That the Application arises out of ‘time barred claims’.
(c)That there is a ‘‘Pre-Existing Dispute’’ prior to the filing of the Application u/s 9 of the
IBC.
 Addressing the first issue, NCLAT observed from the record that the Demand Notice was
served by Registered Post to the Registered Address of the CD as per MCA records which is
as per Rule 5 of the IBC (Application to Adjudicating Authority) Rules, 2016. Further

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 contention made by Appellant that the ack. card is that of ‘Brahmecha Modi, Charted
Accountants’ who has nothing to do with the CD is ultra virus to Rule 5 of the IBC 2016
and in the Statutory Provisions of S. 8 of the IBC. As long as it has been addressed properly
and once served at the Registered Address, it is not the concern of the Applicant as to who
receives it. Appellant also submitted that though the Ack. card of service of notice on Mr.
Vipin Champawat Shantilal, is signed by him, being an Independent Director, he does not
occupy any ‘Key Managerial Position’ and therefore cannot be said to be ‘effective service’.
NCLAT safely construed that the Board of Directors has knowledge of the same. It is the
Board of Directors who takes a call and acts on behalf of the CD and the Independent
Director is a part of it. Be that as it may, the Respondent had issued a Legal Notice dated
20.08.2018 prior to the issuance of the Demand Notice in September 2018, addressed to the
CD at the Registered Address. The same has not been denied by the CD. It was upheld that
service of Demand Notice is satisfactorily served as mandated u/s 8 of IBC and is therefore,
held sufficient.
 Addressing the second issue, Appellant contended that the Petition filed by the OC was
based on six invoices with dates ranging from 27.10.2014 to 31.10.2014 which were to be
paid within 90 days as per the date of invoices. The last payment made by the CD was on
22.09.2016. Considering by NCLAT an established fact of maintaining a running account of
CD & the manner in which such businesses are conducted and accounts are kept it would
be material to see when the parties concerned treat the debt to be in default. Though the
date of default in Demand Notice is stated to be 29.01.2015 it is pertinent to mention that
the date of default mentioned in Form V of the Application is 22.09.2016 (last payment
receipt date) and the Application was filed in October, 2018. Hence, Application fell within
the period of limitation.
 In respect to the third issue it was submitted by Appellant that there were transactions
between one Mr. Puneet Shiv Kumar Agarwal and the OC through various group
Companies. In an e-mail confirmation was sought from CD of its credit balance with the
group companies. Appellant alleged that invoices are forged and fabricated & no amount
was ‘due and payable. Further said that there is a ‘Pre-Existing Dispute’ between the parties
established from the fact that the CD had filed an Application u/s 8 & 9 of IBC against the
Companies of Mr. Punit Agarwal before NCLT, Mumbai. NCLAT held that it cannot fall

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 within the definition of dispute relevant to the subject matter of the instant case, in the
absence of any communication filed evidencing any ‘Pre-Existing Dispute’, prior to the filing
of the S. 9 Application. The Appellant apart from raising a bald denial has not filed any
substantive material in support of their contentions. The contention or the Appellant
regarding false and fabricated invoices is unsustainable as the invoices on record bear the
stamp of the CD by way of an ack.
 For all the afore noted reasons, no illegality or infirmity found in the Impugned Order
passed by NCLT, Mumbai. Hence, this Appeal is dismissed accordingly. Hence, this Appeal
is dismissed accordingly.

31. 24-03-2021 Kishanlal  Appeal filed by erstwhile Director of CD against an Impugned Order of NCLT, Mumbai dated Limitation (Ack in
Likhmichand 06.07.2020 for admitting an Application u/s 7 by FC. balance sheet)
Bothra VS  Appellant contended that Application filed should have been dismissed on the grounds of
Canara Bank limitation as the date of NPA is 03.12.2015 & filing date is 04.07.2019.
(704/2020)  Respondent submitted that debt acknowledged in the books of accounts or balance-sheets
can be treated as acknowledgments for extension of limitation u/s 18 of Limitation Act,
1963. Various OTS submitted by CD dated 02.07.2018, 26.03.2019, 19.08.2019 &
Resolution Plans dated 20.11.2018, 12.02.2019 to the FC.
 NCLAT upheld that S. 18 of the Limitation Act is applicable to proceedings under IBC and
that if there is ack. of debt in the balance-sheets or the OTS Proposal, the period of
limitation would get extended if the ack. is made before the period of limitation expires.
 Hence, Appeal is dismissed.

32. 26-03-2021 Kolla Koteswara  Appeal is preferred by the Suspended Director of the CD challenging the Order of Determining
Rao Vs. Dr SK Admission. The main point for consideration in this Appeal are:- Financial Debt & FC.
Srihari Raju & (i) Whether the amounts paid by the R1 on behalf of the CD to the Lender Bank for
Anr compliance of the terms of the OTS would fall within the definition of Financial Debt under
(717/2020) the Code.
(ii) Whether R1 being a Purchaser under an Agreement to Sell, executed pursuant to an OTS
can claim to be a FC as defined under Section 5(7) of the Code.
 Facts of the case: CD availed a financial loan from SBI (lender) of Rs. 21.50 Cr for the

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 purpose of setting up a unit for manufacturing bulk drugs, formulation etc. On 30.11.2012
CD was classified as NPA. On 23.07.2014 Application u/s 9 of RDDB Act filed with DRT for
recovery amt of Rs. 23.37 Cr. OTS entered between SBI & CD on 08.09.2017 for Rs. 11.70
crores. Agreement of sale entered between R1 (Purchaser) & CD (Seller) on 10.12.2017 with
stipulation to sell the land allotted by TSIIC along with structure standing on the property
and the Plant and machinery for the same consideration that was agreed between the
parties to be the OTS amount payable to the Lender. As per Agreement to Sell the Corporate
Debtor ought to obtain all necessary permissions including NOC from TSIIC and in the
event, the CD had failed to do so the CD had to indemnify the FC. TSIIC cancelled the
allotment vide letter dated 09.02.2018 and the OTS offer letter expired on May 2018. A
Notice was issued by the R1 to the FC in October, 2018 seeking repayment of the amount of
Rs. 2.35/- Crores paid by the first Respondent to the Lender on behalf of the CD along with
interest @ 24% p.a.
 NCLAT stated that the Agreement to Sell emanates from the OTS entered into between the
CD and the Lender Bank and it is only in lieu of the consideration paid by the R1 to the
Lender Bank on behalf of the CD, that the Agreement of Sale for the subject property was
executed & in case of failure to execute & register the deed pay 24% p.a. int. establishes
that the ‘debt’ satisfies the threefold criteria:- disbursal, time value of money & commercial
effect of borrowing.
 NCLAT addressing to second contention of Appeal stated the facts that as the disbursal of
funds was by the R1 to the Lender Bank on behalf of the CD in pursuant to an OTS
Settlement. There is no parent subsidiary relationship involved in this present matter. The
loan was advanced to the CD and the amounts were disbursed by the R1 to the account of
the CD. It was also pleaded that the specific intention of the R1 was to take over the land
with the structures and the Plant and machinery so as to commence the business for which
purpose the land was initially allotted by TSIIC. Hence, it can be safely construed that the
R1 cannot be said to be having only a security interest over the assets of the CD.
 NCLAT considered opinion that the ‘Debt’ is a ‘Financial Debt’ and the R1 is a FC. Hence,
Appeal fails and is dismissed

33. 26-03-2021 Indian Overseas  Appeal filed by FC assailed the Order dated 15.07.2020 passed by NCLT Hyderabad bench, During moratorium

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 Bank VS RCM whereby it sets aside the sale of the assets of the CD. period receipt of
Infrastructure  The issues felt for consideration is balance sale
Ltd & Anr (a) whether after imposition of moratorium any transaction done with respect to the assets transaction is illegal
(736/2020) of the CD/Corporate Applicant deemed to be valid or not, & S. 238 of IBC has
(b) whether provisions of IBC prevail over other laws? overriding effect
 CD was classified as NPA on 13.06.2016 by FC due to failure of loan repayment. Demand
Notice u/s 13(2) of SARFAESI Act, 2002 was issued on 12.01.2018 to repay. Failing which
in exercise of powers u/s 13(4) of SARFAESI Act took possession of two Secured assets
which were mortgaged exclusively with the Appellant Bank which were actioned vide notice
dated 27.11.2018 for Rs. 16.34 Crore each. Sale was confirmed on 13.12.2018 in favour of
the successful bidders who deposited 25% of the bid amount & balance to be paid within 15
days. CD filed Application u/s 10 of IBC which was admitted & CIRP initiated from
03.01.2019 declaring moratorium. On 21.01.2019 Appellant filed its claim with IRP, balance
75% received on 08.03.2019 therefore revised claim filed on 11.03.2019. NCLAT is with the
view that mere receiving of 25% of the sale proceeds does not conclude the sale unless the
full amount is paid prior to imposition of moratorium.
 Further Appellant contended that the Application filed by the Respondent/CD u/s 60(5) of
IBC was indeed an attempt to redeem the property as the right of redemption stood
extinguished as per S. 13(8) of the SARFAESI Act, 2002. NCLAT reiterated the fact that IBC
is a complete Code itself and S. 238 of IBC has overriding effect over all other laws including
SARFAESI Act, 2002. The sale of assets of the CD during moratorium is against the spirit of
S. 14 of IBC.
 Hence Appeal is dismissed as it’s devoid of merit.

34. 26-03-2021 Radico Khaitan  The Appellant filed Appeal against an Order dated 02.09.2020 by NCLT, Hyderabad Bench Consolidation of two
Ltd Vs. BT & FC whereby rejected the Application filed by the Appellant, for consolidation of two CIRPs. CIRPs.
Pvt Ltd and Ors  NCLAT considers certain parameters whether fullfiled in the instant case while Ordering for
(919/2020) consolidation of CIRP which are laid down by NCLT, Mumbai Bench in mentioned case law
as follows:
(i) Common Control: R1 & R2 both are promoted by the same family Mr. & Mrs. Murlidher
and there is unity of ownership and interest.

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 (ii) Common Directors: Mr. & Mrs. Murlidher holding directorship in R1 & R2.
(iii) Common assets: R1 conducts its business on an asset owned by R2, therefore, there is
inter-dependency between both Respondents.
(iv) Common Liabilities: R1 & R2 have made themselves jointly and severally liable for the
loans & have common creditors. Directors of R1 & R2 have given personal guarantees for
the loans.
(v) Inter-dependence: Since R was conducting business on the land owned by R2 they are
inter-dependent.
(vi) Pooling of resources: Being common directors as aforementioned common contacts &
relationships are used to run R1 & R2.
(vii) Intricate links: R2 is associated company of the R1.
(viii) Common Financial Creditors: R1 & R2 had common FC.
 Since all eight parameters are fulfilled consolidation of two CIRPs allowed & Impugned
Order set aside.

35. 31-03-2021 Rajalakshmi  Appeal is filed by RP against an Impugned Order dated 04.11.2020 directing the RP to Whether the Owner/
Vardarrajan, RP vacate and handover the possession of leased premises to Respondent within 30 days. Lessor of land in
of Arudaavis Respondent was given liberty to file claim Application within 30 days for the rental dues actual physical
Labs Pvt Ltd VS before the RP. possession of
G Dhananjaya  Factual matrix of the case: Application u/s 9 filed by Respondent on 30.07.2019 Claim for Corporate Debtor
Naidu arrears of rent for period from 01.04.2014-01.08.2019 Rs.66,79,260/- submitted to RP & can recover the same
(1077/2020) the same is admitted by RP. Lease deed initially executed in 2011 & renewed w.e.f. while moratorium is
01.06.2013 for 11 months. As per Section 12 CIRP period expired on 26.01.2020. RP did in effect 
neither apply for extension for CIRP beyond the ordinary period of 180 days nor was a
Resolution Plan approved or liquidation Order passed by the Adjudicating Authority before
the expiry of CIRP period. Moratorium ceased to operate beyond 26.01.2020. Application for
liquidation filed on 14.02.2020. Respondent filed before the AA on 05.08.2020 praying for
handing over of leased premises as CIRP period had expired and moratorium had ceased to
have effect from 27.01.2020. Same was allowed by the AA in terms of the Impugned Order.
Liquidation of CD stands approved by the AA vide Order dated 12.01.2021.
 The sole question arising for consideration in this Appeal is whether the Owner/

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 Lessor of land in actual physical possession of Corporate Debtor can recover the same
while moratorium is in effect.
 The Hon’ble Apex Court held that S. 14(1)(d) of the IBC, when it speaks about recovery of
property “occupied”, does not refer to rights and interests created in property but only
actual physical occupation of the property.
 NCLAT find no force in the contention raised by the Appellant that the moratorium was in
force on 04.11.2020 when the Impugned Order came to be passed.
 Hence Appeal is dismissed.

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