SERIAL CASE FACTS DECISION

NO. NAME
1. Gurucharan NCLT, New Delhi’s order was The NCLAT conceded to the fact that
Singh Soni challenged as the State Consumer there was a debt due from the
and Kuldeep Disputes Redressal Commission respondent to the appellant. But
Kaur Soni Vs. passed an order, stating that the NCLAT held that, the Appellants would
Unitech Ltd. Respondents had to refund the not come under the category of
amount with interest, Operational creditor. As the case of
compensation and litigation Nikhil Mehta V. Amr Infrastructure
expenses. The Appellants state was referred, it is to be observed that
that the amount due comes within Appellant tribunal held “Nikhil Mehta
the meaning of ‘debt’ and due & Sons” as the financial creditor and
amount having not been paid there the amount claimed by them as
was default and therefore, “financial debt”. Therefore, the bench
Application under Section-9 was dismissed the appeal since the debt does
maintainable. not come under the classification of
The Respondents contended that Operational debt.
there was no notice served to
them, however the contrary was
proved that notice was served to
the respondents. The respondents
further contended that the notice
issued was not by an authorized
person. The Appellants stated that
the notice was issued by the
person who was given the General
Power of Attorney; henceforth he
was authorized personnel.
Appellants contend that the
application was rejected by
referring to “Sajive Kunwar v.
AMR Infrastructure” and that case
was overruled by the tribunal in
Nikhil Mehta and Sons. v. AMR
Infrastructure Ltd. Thus based on
a case which was overruled cannot
be a ground for rejecting the
application.
2. Palogix ICICI Bank Ltd., Financial Creditor NCLAT observed that the ‘I&B Code’ is a
Infrastructure (“ICICI”) filed an application under complete Code by itself and the provision of
private Ltd vs section 7 of the code for initiation of the Power of Attorney Act, 1882 cannot
 ICICI Bank the CIRP against Palogix Infrastructure override the specific provision of a statute
Ltd. Pvt. Ltd., Corporate Debtor which requires that a particular act should be
(“Palogix”).
3. S3 Electrical The respondent-Brian Lau, a
and resident of Hong Kong preferred
Electronics an application under Section 7 of
Pvt. Ltd. Vs. the Insolvency and Bankruptcy
Brian Lau Code, 2016 with a prayer to
initiate Corporate Insolvency
Resolution Process against the
appellant- 'Corporate Debtor'-S3
Electrical and Electronics Private
Limited. According to the
appellant-Andhra Bank were
bankers of Corporate Debtor and
that there is no default shown in
the account. The Andhra Bank is
satisfied with the performance of
the 'Corporate Debtor'.
done by a person in the manner as prescribed
there under. NCLAT held that a ‘Power of
Attorney Holder’ is not competent to file an
application on behalf of a ‘Financial
Creditor’ or ‘Operational Creditor’ or
‘Corporate Applicant’. NCLAT held that a
power of attorney holder is not authorised to
present application for CIRP under
sections 7, 9 and 10 of the Code. It is only
authorised representatives, duly authorised by
board resolution, who are eligible to present
the same.
Thus, only an authorised person of the
Financial Creditor/Operational Creditor or
Corporate Applicant can make an
application under Section 7, 9 and 10 of
the Code. Therefore, a ‘Power of Attorney
Holder’ is not competent to file an
application for CIRP under the Code on
behalf of a ‘Financial Creditor’ or
‘Operational Creditor’ or ‘Corporate
Applicant’
The Appellate Tribunal was of the view
that though the learned counsel for
the respondent has produced some
records and communications to show
the evidence of ‘Default’ such
documents cannot be taken into
consideration for the purpose of
initiation for Insolvency Resolution
Process under section 7 of the I&B
Code and also the order passed by the
Adjudicating Authority without notice
to ‘Corporate Debtor’ is in violation of
rules of natural justice and hence the
said order is fit to be set aside.
4. Mack Soft The Quinn Group of companies is
Tech Pvt. Ltd based out of Ireland and has
Vs. Quinn multiple subsidiaries across
Logistic various geographies. The
promoters of the Quinn Group
took loans from the erstwhile
Anglo-Irish Bank (now known as
The Irish Bank Resolution
Corporation) via Quinn finance
and invested that money in
various countries. Instead of
paying back the bank, illegal
transactions were allegedly
undertaken to remove all
companies from the hold of the
Quinn group. IBRC took control
of Quinn Finance and Quinn
Logistics India due to loan
defaults by Quinn group
companies.
Mack Soft Tech was created in
2003 by the Quinn Group as a
Special Purpose Vehicle (SPV) in
India. The Q-City project was
funded by Quinn Finance vide
subscription to Compulsory
Convertible debentures of Mack
Soft of Rs 143 crore; Quinn
Logistics India by providing inter
corporate deposit to Mack Soft of
Rs 63 crore.
Quinn Logistics India filed for
insolvency of Mack Soft Tech and
the petition was admitted by
NCLT, Hyderabad Bench, vide
order dated 11 August 2017.
Quinn Finance and Quinn
Logistics are requesting that the
shareholding is given back from
Mecon to Mack Soft so that
NCLAT laid down the exceptions to the
situation in which the time period
intervening the insolvency resolution
process period can be excused from the
count of 270 days. The same are as
follows:
(1) if the resolution process is
stayed by the adjudicating
authority, NCLAT or the
Supreme Court;
(2) in case of lack of functioning
of a resolution professional;
(3) the period between the
admission of insolvency
application and the actual date
from which the resolution
professional takes charge of the
matter;
(4) when an order is reserved by
the adjudicating authority,
NCLAT or the Supreme Court;
(5) when the NCLAT sets aside
the corporate insolvency
resolution process or when its
decision is reversed by the
Supreme Court.
(6) any other situation that
would justify the exclusion of a
certain period from the 270 days
count.
 liquidation process is completed.
The amount in question for Quinn
Finance is Rs 143.6 crores and Rs
62.9 crores to Quinn Logistics.
5. Ravi Mahajan The Corporate Debtor appealed
Vs. Sunrise against the order of admission
Denmark A/S, passed by the NCLT Chandigarh
Denmark Bench. The Corporate Debtor
alleged that the Financial Creditor
did not enclose record of default
as mandated by sub-section (3) (a)
of Section 7 and therefore the
NCLAT should not have admitted
the application.
6. Nikhil Mehta The Nikhil Mehta and Sons
and Sons claiming themselves to be
HUF Vs. Amr Financial Creditors, filed
infrastructure application under section 7 of the
Ltd. Code before NCLT, Principal
Bench, New Delhi.The NCLT,
Principal Bench, New Delhi
rejected the application on the
ground that Nikhil Mehta and
Sons in this case were not
financial creditors to AMR
Infrastructure Ltd., Corporate
Debtor, (“AMR Infrastructure”).
The question to be decided by
NCLAT was whether the
The NCLAT observed that the
Financial Creditor had failed to furnish
record of default with the information
utility or any such other record
evidence of default as specified by the
Insolvency and Bankruptcy Board of
India. The NCLAT held that sub-
section (3) (a) of Section 7 if read with
Form 1 of the Adjudicating Authority
Rules 2016 makes it mandatory for the
Financial Creditor to furnish record of
default, the failure of which the
application will be rejected. The
NCLAT also observed that the
application under Section 7 in Form 1
was not filed by the Financial Creditor
but by an advocate and therefore it is
not maintainable in that respect. The
NCLAT therefore, set aside the orders
of the NCLT and allowed the appeal.
NCLAT held that. Nikhil Mehta and
Sons in this case were “investors” and
had chosen the “committed return
plan”. AMR Infrastructure in turn
agreed upon to pay monthly committed
return to the investors. Thus, the
amount due to Nikhil Mehta and Sons –
buyers came within the meaning of
“debt” defined under section 3(11) of
the Code. Furthermore, NCLAT noted
from the Annual Return and Form 16-A
of the AMR Infrastructure that they had
treated the buyers, Nikhil Mehta and
Sons as “investors” and borrowed
amount pursuant to sale purchase
 aforesaid arrangement was a agreement for their commercial purpose
simple sale transaction and Nikhil was treated at par with loan in income
Mehta and Sons were mere buyers tax return filed by AMR Infrastructure.
or, whether Nikhil Mehta and
Sons were financial creditors
under section 5 (7) read with
section 5(8) of the Code and
therefore allowed to make an
application under section 7 of the
Code.

7. PEC Ltd vs. The Appellant- ‘M/s. PEC Ltd.’ is NCLAT held that “The Adjudicating
Sree a Government of India Enterprise, Authority failed to appreciate that the
Ramkrishna and is a ‘Financial Creditor’ of application(s) preferred by Appellant
Alloys Ltd Respondent(s)- ‘Corporate under Section 7 of the ‘I&B Code’
Debtor(s)’ cannot be treated as an application
The case of the Appellant is that under Section 9 of the ‘I&B Code’
the Respondent- ‘M/s. Sree and the Appellant who is a ‘Financial
Ramakrishna Alloys Limited’ Creditor’ cannot be treated as
defaulted of Rs.15,16,26,907/- as ‘Operational Creditor’.
on 6th March, 2017. Initially, on Also, if an application is filed by a
demand, the Respondent- ‘M/s. person under Section 7 of the ‘I&B
Sree Ramakrishna Alloys Code’ and in case the Adjudicating
Limited’ issued three cheques Authority comes to the conclusion
which have been bounced, three that the Applicant is not a ‘Financial
Criminal Complaints under Creditor’ in such case the Adjudicating
Section 138 of the Negotiable Authority has jurisdiction to reject the
Instrument Act, 1881 has been application under Section 7 of the ‘I&B
instituted against the said Code’, but the said Authority cannot
Respondent treat the format of the application under
The Appellant- ‘M/s. PEC Ltd’ Section 7 of the ‘I&B Code’ (Form-1)
filed an application under Section as an application under Section 9 of
7 of the Insolvency and the ‘I&B Code’ (Form-5), nor can treat
Bankruptcy Code, 2016 such person an ‘Operational creditor’,
(hereinafter referred to as “I&B in absence of any claim made under
Code”) for initiation of ‘Corporate Section 9 of the ‘I&B Code’. Further, as
Insolvency Resolution Process’ the informations required to be given in
against ‘M/s. Sree Ramakrishna Form-1 varies from the informations as
Alloys Limited’. required to be given in Form-5 (As per
The grievance of the Appellant is Section 9), including instructions made
 that though the application was
preferred by the Appellant under
Section 7 of the ‘I&B Code’, at
the request of the Respondent-
‘M/s. Sree Ramakrishna Alloys
Limited’ (‘Corporate Debtor’), the
application has been treated to be
an application under Section 9 of
the ‘I&B Code’, and order of
admission has been passed.
8. Senthil Appeal against admission of
Kumar application for initiation of
Karmegam ‘Corporate Insolvency Resolution
Vs. Dolphin Process’ & order of moratorium
Offshore has been admitted on Grounds -
Enterprises that the demand notice under sub-
(Mauritius ) Section (1) of Section 8 was not
(P.) Ltd. issued by the Operational Creditor
but by an advocate (and not in
prescribed forms 3 or form 4) on
behalf of the ‘Operational
Creditor’, which is not
permissible.
9. JK Jute Mills The appeal was filed against the
Company interim order passed by
Limited Vs NCLT(Allahabad) which did not
Surendra decide the application filed for the
Trading initiation of CIRP even after 60
Company Ltd. days from the date of hearing. The
NCLT had issued a stay order
ordering the maintenance of status
quo of immovable assets. The
NCLAT observed that a question
of law remained undecided and
thus decided to admit the appeal.
The question involved was
whether the time limit prescribed
under IBC for disposal of
below the requisite form(s), no
application filed under Section 7 can be
treated as an application under Section
9 of the ‘I&B Code.”
Both the appeals were allowed.
Tribunal observed as follows:
“In view of provisions of I&B Code,
read with Rules, as referred to above,
we hold that an ‘Advocate/Lawyer’ or
‘Chartered Accountant’ or ‘Company
Secretary’ in absence of any authority
of the Board of Directors, and holding
no position with or in relation to the
Operational Creditor cannot issue any
notice under Section 8 of the I&B
Code, which otherwise is a ‘lawyer’s
notice’ as distinct from notice to be
given by operational creditor in terms
of section 8 of the I&B Code.”
The NCLAT interpreted Sections: 7, 9
& 10 of IBC and observed that time is
the essence of the Insolvency and
Bankruptcy Code, 2016. It further relied
on the Hon’ble Apex Court’s decision
in P.T. Rajan v. TPM. Sahir & Ors. and
held that the time period prescribed for
the admission and rejection of
application is directory in nature.
However, all other time limits
prescribed under the IBC was construed
to be mandatory in nature.
Further, it was observed that in the
present case, the NCLT has unduly
 application is mandatory or delayed the deciding of application. The
directory in nature. The Corporate application was deemed to be
Debtor argued: incomplete by the NCLAT and thus
That the NCLT becomes a directed the NCLT to reject it.
‘functus officio’ (i.e. not having
power to decide the case) after the
expiry of time period specified
under IBC.
That no stay order was prayed by
the Operational Creditor.
That the NCLT had no inherent
jurisdiction to pass any ad interim
order.
That the Demand Notice sent was
incomplete
The Creditor raised contentions
stating:
1.      That the time limit
prescribed for the disposal of
petitions is not mandatory in
nature

2.      That the seven days period

granted for curing of defects is
exclusive of the fourteen days’
period of disposal

10. Kirusa Kirusa Software Private Limited
Software (“Kirusa”) issued a demand notice
Private Ltd on Mobilox Innovations Private
Vs. Mobilox Limited (“Mobilox”) as an
Innovations operational creditor, demanding
Private Ltd payment of certain dues. Mobilox
issued a reply to the demand
notice (“Reply”) inter‐alia stating
that there exists serious and bona
fide dispute between the parties as
Kirusa had breached the terms of
the non‐ disclosure agreement
between the parties and divulged
The NCLAT came to the conclusion
that in the instant case, the defense
raised for dispute by the operational
debtor was vague and motivated to
evade liability. Accordingly, it has
remitted the case back to the NCLT,
Mumbai Bench for admission of the
application if the application is
otherwise complete.
 Mobilox’s confidential
information.
Kirusa filed an application before
the NCLT, Mumbai for initiation
of CIRP of Mobilox which was
dismissed by the NCLT on the
grounds that a notice of dispute
has been issued by Mobilox.
Kirusa filed an appeal before the
NCLAT claiming that the Reply
does not constitute a notice of
dispute under IBC.
11. Black Pearl The applicant/Operational The honorable NCLAT observed that
Hotels Pvt. Creditor filed an application the right to apply under the Code
Ltd. Vs. under section 9 of the Code before accrued to the appellant only on and
Planet M NCLT, Mumbai Bench on the after 1
Retail Ltd. ground that the December 2016, when the code came
respondent/Corporate Debtor into force. Therefore, the time limit of
(CD) had failed to pay its agreed three years as mentioned in the
dues. The Adjudicating Authority Limitation Act had not lapsed for filing
by its impugned order dated 4th the application and the debt was not
May 2017 dismissed the time-barred.
application on the ground that the NCLAT held that there is nothing on
application was barred by record that the Limitation Act is
limitation. applicable to IBC. Hence, the period of
limitation with regard to the Code
would start only from 1 December
2016.
This implies that for all debts, a fresh
period of limitation would start from
the date the Code came into force, i.e.,
1 December 2016, with regard to
proceedings under the Code.

12. M/S The question arises for NCLAT held that “It is true that under
Ksheerabad consideration before the NCLAT Section 36 of the Arbitration and
Constructions is: Conciliation Act, 1996, an Arbitral
Pvt. Ltd Vs. “Whether pendency of a case Award is executable as a decree. It can
M/s. Vijay before a Court under Section 34 of be enforced only after the time for
Nirman the Arbitration and Conciliation filing the application under Section 34
Company Pvt. Act, 1996 can be termed to be has expired and/or, if no application is
 Ltd. 'dispute in existence' for the made or such application having been
purpose of subsection (6) of made has been rejected. Therefore, for
Section 5 of the 'I&B Code'.” the purpose of Arbitration and
Conciliation Act, 1996, an Arbitral
Award reaches its finality after expiry
of enforcement time or if the
application under Section 34 is filed
and rejected. However, for the purpose
of 'l&B Code' no reliance can be placed
on Section 34 of the Arbitration and
Conciliation Act, 1996.
The 'I&B Code' being a Complete Code
will prevail over all other Acts
including Arbitration and Conciliation
Act, 1996. As per, Section 238,
provision of 'I&B Code' is to override
other laws, including Arbitration Act,
1996. Therefore, the provision under
the 'I&B Code' with regard to finality of
an Arbitral Award for initiation of
'Corporate Insolvency Resolution
Process' will prevail the provisions of
the 'Arbitration and Conciliation Act,
1996'.
In view of the aforesaid provisions of
law and mandate of 'I&B Code', we
hold that no person can take
advantage of pendency of a case
under Section 34 of the Arbitration
and Conciliation Act, 1996 to stall
'Corporate Insolvency Resolution
Process' under Section 9 of the 'I&B
Code'.”

13. Shriram EPC Rio Glass Solar SA preferred an NCLAT held that the application under
ltd. Vs. Rio application under section 9 of Section 9 was not maintainable due to
Glass Solar the Insolvency and Bankruptcy various reasons, accordingly, the order
SA Code, 2016 seeking to set in was set aside and the fees of “Interim
motion the Corporate Insolvency Resolution Professional” appointed by
 Resolution Process against the Adjudicating Authority will be paid by
appellant Shriram EPC Limited. the Corporate Debtor for the period he
NCLT, Chennai Bench admitted has functioned.
the application, ordered
moratorium, appointed “Interim
Resolution Professional” with
order of prohibition in terms of
Insolvency and Bankruptcy Code,
2016.
The Corporate Debtor challenged
the said order and appeal before
the NCLAT.

14. Sobha Ltd. The operational creditor, a real The creditor claimed that adjudicating
Vs. Pancard estate company had entered into authority(NCLT, Mumbai) cannot set
Clubs Ltd. multiple agreements with aside taking note of SEBI or arbitration
Corporate debtor for RCC orders, since I&B Code overrides them.
construction, extension of floors NCLAT agreed partly to their claims
and allied developmental work in with respect to SEBI but not with case
Pune and West Bengal. As soon as of arbitration proceeding. The appeal
the work commenced, the invoices was dismissed citing that the arbitration
had been communicated to the proceeding was still effectuated much
debtor. Failing to pay for services prior to winding up process, therefore,
as part of the agreement, creditor it will amount to ‘existence of dispute’.
had sent notice u/s 434. The
debtor also had accepted the debt
of 2 crores (with tax) for Pune
project and 2.84 crores for Bengal
project. But did not come forward
with the debt amount even after
the notice. The debtor company
had criminal/civil complaints
against them for endorsing
‘collective investment scheme’ in
the name of ‘holiday plans’
without registering with SEBI and
illegally collecting money from
investors assuring returns.
15. Philips India  Appeal against order of Corporate debtor much prior to
Ltd. Vs. adjudicating authority(NCLT issuance of notice under section 8 had
Goodwill DELHI) observing that remedy of raised a dispute relating to quality of
 Hospital and appellant / applicant lies service/maintenance pursuant to notice
research elsewhere not under the under sections 433(e) and 434(1)(a) of
centre Ltd. provisions of the Code – Whether the Companies Act, 1956 it can be
Karina it can be safely stated that in this safely stated that there is ‘existence of
Healthcare case there is ‘existence of dispute’ about the claim of debt. Such
Pvt. Ltd. dispute’, and if adjudicating objection cannot be called mere
authority has refused to entertain objection for the sake of ‘dispute’
application under section 9, no and/or unrelated to clause (a) or (b) or
ground stands made out for (c) of sub-section (6) of section 5.
interference with such orders of Where adjudicating authority has
the adjudicating authority. accordingly refused to entertain
application under section 9 of the
Code, no ground is made out for
interference with such orders.
16. Ganesh NCLT, Kolkata had passed an NCLAT held that it was not the issue
Sponge Pvt. order wherein it had admitted the whether the parties had settled. The
Ltd Vs. Aryan application by the Respondent. main issue which was observed was
Mining and However, the Appellant that the NCLT, Kolkata had admitted an
Trading challenged the order of NCLT application under Section 9 of IBC,
Corporation Kolkata on the ground that the 2016 which was defective. Therefore,
Pvt. Ltd. demand notice issued to the NCLAT set-aside and declared the
appellant was by the lawyer of order(s) of NCLT, Kolkata as illegal on
Respondent. Reliance was placed this case.
on the case of “Macquarie Bank
Limited Vs. Uttam Galva
Metallics Limited” where it was
held that an advocate/lawyer or
Chartered Account or a Company
Secretary or any other person in
absence of any authority by the
‘Operational Creditor’, and if such
person do not hold any position
with or in relation to the
‘Operational Creditor’, cannot
issue notice under Section 8 of
IBC, 2016 which otherwise can be
treated as a lawyer’s notice, and
not as notice under Section 8 of
IBC, 2016. It was further
contended that there was an
existence of dispute relating to the
 quality of goods provided by the
Respondent, as well.
The Respondent had appeared and
conceded the fact that the demand
notice was issued by their counsel
and also did not object the
contention relating to the
existence of dispute by the
appellant. The Respondent
submitted that both parties had
settled the dispute.
17. Labdhi The appellant filed an application NCLAT held that For initiation of
Enterprises under Sections 433, 434(e) and 'Corporate Insolvency Resolution
Vs. Baramati 439 of the Companies Act,1956 Process', the right to apply accrues
Agro Pvt. Ltd. before the Hon’ble Bombay High under Section 7 or Section 9 or Section
Court, Mumbai for winding up 10 only with effect from 1st December,
the Respondent Company on the 2016 when 'I&B Code' has come into
ground that the debtor Company force, therefore, the right to apply under
defaulted in making payment of Section 7 or Section 9 or Section 10 in
Rs. 27,97,696/- to the Appellant. all present cases having accrued after
Since by notification dated 7th 1st December 2016, such applications
December 2016, “The Companies cannot be rejected on the ground that
(Transfer of pending proceedings) the application is barred by limitation
Rules 2016” came into force. the
petition under Sections
439,434(e) and 439 of the
Companies Act, 1956, which
was pending before the Hon’ble
Bombay High Court was
transferred to the Tribunal,
Mumbai Bench, Mumbai.
Respondent took plea that the
claim was barred by limitation
and holding this contention the
Adjudicating Authority refused to
treat the Application under
Section of 9 of the I & B Code on
one of the grounds that the
Appellant failed to show that the
debtor Company acknowledged
the debt due since last three years
 from 27th April, 2010 when it was
payable and thereby the debt is
time barred.

18. Prowess An application for initiation of NCLT dismissed the application. Upon
International CIRP was filed by Operational appeal, NCLAT observed as under:
Pvt. Ltd. vs. Creditor - Parker Hannifin India “where all creditors have been satisfied
Parker Pvt. Ltd. Immediately upon and there is no default with any other
Hannifin coming to know of the initiation creditor, the formality of submission of
India Pvt. Ltd. of proceedings against it, resolution plan under section 30 or its
Corporate Debtor - Prowess approval under section 31 is required to
International Pvt. Ltd. be expedited on the basis of plan if
(“Prowess”) settled its dues with prepared. In such case, the Adjudicating
the operational creditor as well as Authority without waiting for 180 days
other creditors. of resolution process, may approve
Prowess filed an application for resolution plan under section 31, after
closure of the CIRP. NCLT recording its satisfaction that all
dismissed the application. An creditors have been paid/ satisfied and
Appeal was filed in NCLAT. any other creditor do not claim any
amount in absence of default and
required to close the Insolvency
Resolution Process...
It is made clear that Insolvency
Resolution Process is not a recovery
proceeding to recover the dues of the
creditors. I & B Code, 2016 is an Act
relating to reorganisation and
insolvency resolution of corporate
persons, partnership firms and
individuals in a time bound manner ”
Deciding the question of
maintainability of the appeal and the
petition, NCLAT upheld the NCLT
order and dismissed the appeal.
19. Neelkanth The NCLAT’s judgment on the The NCLAT rejected the argument
Township and issue arises in the context of advanced by Neelkanth that the debt
Construction insolvency proceedings filed by was barred by time, on the ground
Pvt. Ltd. vs. Urban Infrastructure Trustees that there is nothing on record to
Urban Limited (“Urban show that the provisions of the
Infrastructure Infrastructure”)against Neelkanth Limitation Act would apply to the
Trustees Ltd Township and Construction Pvt. Code. he Code is not an act for recovery
 Ltd. (“Neelkanth”) before the of money claims and that is relates to
National Company Law initiation of corporate insolvency
Tribunal, Mumbai (“NCLT process, and that if there was a debt
Mumbai”) alleging that including interest, and there was
Neelkanth defaulted in making default of that debt having continuous
payments under debenture cause of action, the argument that the
certificates issued by it, on the claim for money by Urban
date of maturity mentioned in the Infrastructure would be barred by
debenture certificates. time, cannot be accepted.
An appeal was filed in Supreme Court .
The NCLTMumbaiproceeded to Supreme Court dismissed the appeal
admit the insolvency resolution and held that the question i.e. whether the
application filed by the Urban Limitation Act is applicable to
Infrastructure, and declared a proceedings under the Code is left open.
moratorium.
Neelkanth challenged the order
of the NCLT Mumbai before the
NCLAT on various grounds
,including that the alleged debt of
Urban infrastructure was barred
by time.

20. Falcon Tyres In this case, the main plea taken In this appeal filed by Falcon Tyres, the
Limited vs. was that an association of honorable NCLAT in its order stated
Belthangady workmen had been impleaded due that after the admission of an
Taluk Rubber to the admission of the application for the initiation of
Growers application under the Code. corporate insolvency resolution, the
Marketing & association of workmen has no role to
Processing play except their members,
Co-op. individually, may file a claim to the RP.
Society The RP would then process the claim in
Limited & accordance with the provision of the
Anr. Code.

21. Canara Bank The appeal was filed by the The NCLAT upheld the order of the
Vs. Deccan Financial Creditor (Canara Bank) NCLT(Hyderabad). It further stated that
Chronicles in regard to the order passed by as per Section 14(1) (a) of the IBC, the
Holdings NCLT(Hyderabad) dated bar on legal proceedings was included
Limited 19/07/2017 which admitted the under declaration of moratorium. The
 application. In this appeal, the
Creditor has raised a question
regarding to the extent of
moratorium declared on the
Corporate Debtor by the said
NCLT order. As per the order, the
moratorium imposes a prohibition
on the  institution or continuance
of suits in any court of law against
the Debtor.
only exceptions to this would lie:
1. Under a money suit filed under
Article 131 of The Constitution of
India, 1950 in the Supreme Court under
its original jurisdiction.
In a case filed under Article 32.
2. A judgment delivered under Article
3.136 by the Supreme Court, or in a
case in the High Court filed under
Article 226.

22. Jindal Steel &

The Application was filed by On appeal the NCLAT noted that the
Power Jindal Steel & Power Ltd. Appellant was clearly a tenant of the
Limited vs.
(Applicant) as an ‘Operational Debtor. It observed that despite the fact
DCM Creditor’ of DCM International that a Memorandum of Understanding
InternationalLtd. (Corporate Debtor) The has been entered into by the parties, no
Limited Applicant had occupied the leased claim was made for goods or services.
premises of the Debtor and upon It further observed that the debt did not
termination of contract, demanded arise under any law payable to the
for the security deposit to be Government. The Appellant was thus
refunded. However, only part deemed to be not an ‘Operational
payment was made and thus, the Creditor’. The appeal was thus
Applicants sent a Demand Notice dismissed.
under Sec: 8 of IBC. They went
on to file an application before the
NCLT. The Debtors objected such
application by contending that the
debt owed was not an
‘Operational Debt’ and thus, the
Applicant was not an ‘Operational
Creditor’. They further contended
that there was a dispute pending
between the parties regarding the
amount owed. The NCLT held
that the debt owed was not an
operational debt. The Appeal was
filed by Jindal Steel & Power
Ltd. 
23. Sandeep The appeal was filed by the NCLAT held that that the application
Reddy & Anr. Sandeep Reddy & Anr, Corporate for CIRP under Section 9 of the Code
vs. Jaycon Debtor (“Sandeep Reddy”) against was not maintainable since it was not
 Infrastructure whom NCLT had admitted the
Ltd application filed by Jaycon
Infrastructure Ltd., Operational
Creditor (“Jaycon Infrastructure”)
Sandeep Reddy contended that
there is a dispute in existence
prior to issuance of notice of
demand under sub-section (1) of
Section 8 of the Code.
It was further contended that the
NCLT without calling for name of
any IRP from the IBBI appointed
IRP, without any such suggestion
from the Jaycon Infrastructure or
the IBBI.
Jaycon Infrastructure admitted
that the IRP was not appointed on
the suggestion made by it.
24. M/s ICICI Bank initiated proceeding
Innoventive under the Code against M/s
Industries Ltd. Innoventive Industries Ltd.
vs. ICICI (“Innoventive”), it was already
Bank & Anr taking benefit under Maharashtra
Relief Undertaking (Special
Provisions) Act (“State law”).
Under the State law, the State
Government could take over the
management of the relief
undertaking (i.e. Innoventive),
after which a temporary
moratorium in much the same
manner as contained in section 13
and 14 of the Code takes place
under section 4 of the State Act.
Thus, the State law covered the
same field as the Code.
25. Era Infra The Prideco Commercial Projects
disputed by Jaycon Infrastructure that
there was a dispute in existence prior
to issuance of demand notice under
sub-section (1) of Section 8 of the
Code and that parties have already
reached the settlement.
NCLAT observed that, prima facie it
was of the opinion that the Code does
not empower the NCLT to suggest any
name or appoint any IRP/ RP of its own
choice.
Since the parties had settled the
dispute and initiation of resolution
process under section 9 of the Code
was not maintainable, in view of
existence of dispute, NCLAT left the
question
open as to whether the NCLT had
power to appoint any person of its own
choice or not.
NCLAT held that the State law operates
in different field from the Code and
that, there was no repugnancy between
the State law and the Code. This
judgment was challenged before the
Hon’ble Supreme Court of India by
Innoventive.
The Supreme Court held that both the
statutes i.e. the Central law and the
State law covered same field and that
there was repugnancy. It was also held
that in view of section 238 of the Code
relating to non obstante clause, the
Code shall prevail over an earlier State
law covering the same field.
NCLAT held that issuance of notice
 Engineering Pvt. Ltd., Operational Creditor,
Ltd. vs. (“Prideco Commercial”) who had
Prideco initially issued notice under
Commercial section 271 of Companies Act,
Projects Pvt. 2013, filed application under
Ltd. section 9 of the Code when the
Code came into force. At the time
of filing of such application,
Prideco Commercial did not issue
notice under section 8 of the
Code.
Era Infra Engineering Ltd,
Corporate Debtor (“Era Infra”)
raised contention that no notice
under section 8 of the Code was
issued.
26. Lokhandwala The financial creditor, Nisus
Kataria Finance and Investment
Construction Managers, LLP, filed an
Pvt. Ltd. vs. insolvency application under
Nisus Finance section 7 of the Code before the
& Investment National Company Law Tribunal,
Mangaer LLP Mumbai Bench (“NCLT”) against
the corporate debtor, okhandwala
Kataria onstruction Limited. The
application was admitted by the
NCLT; however, subsequently the
parties settled the matter between
themselves. On that ground, the
parties approached the National
Company Law Appellate Tribunal
(“NCLAT”) with a prayer to set
aside the decision of the NCLT
since the dispute was now settled.
The vital question before the
NCLAT was whether an
application can be withdrawn after
the same has been admitted.
under section 8 of the Code was
mandatory and the notice under section
271 of Companies Act, 2013 could not
be treated as notice under section 8 of
the Code .
NCLAT held that reading the
provisions of Rule 8, it is clear that an
application can be withdrawn only
before its admission by NCLT. Once an
application is admitted, neither NCLAT
nor NCLT has power to order
withdrawal of application
NCLAT noted that Rule 11 of NCLAT
Rules, which provides for inherent
powers of NCLAT, has not been
adopted for the purposes of Code and
only Rule 20 to 24 and Rule 26 of
NCLAT Rules has been adopted. There
was no specific provision which
empowered NCLAT with inherent
powers.
An appeal was filed in the Supreme
Court. The Supreme Court held that ,
neither NCLT nor NCLAT have power
to order withdrawal of an application,
on the basis of compromise between the
parties, which has once been admitted.
However, Hon’ble Supreme Court of
India can permit withdrawal of such

27. Steel Konnect The issue in case was Whether the
(India) Private Corporate Debtor can prefer
Limited vs. appeal under section 61 of the
M/s Hero Code through the Board of
Fincorp Directors, which stand suspended
Limited after admission of an application
for initiation of CIRP?
28. Nikhil Mehta Nikhil Mehta and Sons had signed
and Sons vs. a Memorandum of Understanding
AMR (MoU) with AMR Infrastructure
Infrastructure with regard to purchase of three
Ltd units viz., residential flat, shop
and office space. In return for a
substantial portion of the total
money paid up front, AMR
Infrastructure promised to pay
monthly “assured returns” from
the time of signing of the MOU
till the time the possession was
delivered to Nikhil Mehta and
Sons. After paying these assured
returns for some time, the AMR
Infrastructure defaulted on its
payments. Following this, an
application under section 7 of the
Code was filed which was
rejected by NCLT, New Delhi on
the grounds that Nikhil Mehta and
Sons in this case were not
application.
NCLAT held that though the Board of
Directors or partners of Corporate
Debtor is suspended (for a limited
period of maximum 180 days or
extended by 90 days i.e. 270 days), but
they continue to remain as Directors
and members of the Board of Directors
for all purpose in the records of
Registrar of Companies under the
Companies Act, 2013.
Thus, a Corporate Debtor can prefer an
appeal under section 61 of the Code
through the Board of Directors, which,
though, stands suspended after
admission of application for initiation
of CIRP.
NCLAT held that. Nikhil Mehta and
Sons in this case were “investors” and
had chosen the “committed return
plan”. AMR Infrastructure in turn
agreed upon to pay monthly committed
return to the investors. Thus, the
amount due to Nikhil Mehta and Sons –
buyers came within the meaning of
“debt” defined under section 3(11) of
the Code. Furthermore, NCLAT noted
from the Annual Return and Form 16-A
of the AMR Infrastructure that they had
treated the buyers, Nikhil Mehta and
Sons as “investors” and borrowed
amount pursuant to sale purchase
agreement for their commercial purpose
was treated at par with loan in income
tax return filed by AMR Infrastructure.
 financial creditors to AMR
Infrastructure Ltd., Corporate
Debtor, (“AMR Infrastructure”).
An Appeal was filed in NCLAT.
29. Rajputana Pursuant to an invitation by the
Properties Resolution Professional (RP),
Pvt. Ltd. v various resolution plans for Binani
Ultratech Cements (which was undergoing
Cement Ltd. CIRP) were submitted, including
& Ors. by Rajputana and UltraTech.
Based on the evaluation matrix,
Rajputana was declared H1 on 27
February 2018. On 08 March
2018, UltraTech submitted a
substantially improved offer,
which the Committee of Creditors
(COC) of Binani Cements refused
to consider. Instead, the COC
approved the resolution plan of
Rajputana on 14 March 2018.
When the RP filed an application
with the National Company Law
Tribunal, Kolkata (NCLT) for
approval of the Rajputana plan,
applications were filed by various
stakeholders, raising various
issues, including discriminatory
treatment of certain financial
creditors and operational creditors
and alleged lack of transparency
in the process. Applications were
also filed by UltraTech,
questioning the process and
seeking directions to the RP/COC
for consideration of its revised
offer. On 02 May 2018, NCLT
passed a detailed order, inter alia,
rejecting the Rajputana plan as
being ‘discriminatory’ and
directed the COC to consider the
revised offer and plan of
Following conclusions were drawn by
the NCLAT: 1. Liabilities of all
creditors who are not part of COC must
also be met in the resolution; 2.
Financial creditors can modify the
terms of existing liabilities, while other
creditors cannot take risk of postponing
payment for better future prospects i.e.
while financial creditors can take
haircut and recover their dues in future,
operational creditors need to be paid
immediately; 3. A creditor cannot
maximise his own interests in view of
moratorium; 4. If one type of credit is
given preferential treatment, the other
type of credit will disappear from
market, which will be against the
objective of promoting availability of
credit; 5. IBC aims to balance the
interests of all stakeholders and does
not maximise value for financial
creditors; Therefore, the dues of
operational creditors must get at least
similar treatment as compared to the
dues of financial creditors.
An appeal was filed in Supreme Court
of India. The Supreme Court upheld
NCLAT’s view.
 UltraTech, along with other
revised offers, if any. The matter
reached the NCLAT and
eventually, the Supreme Court.
On 02 July 2018, the Supreme
Court directed that all points,
including those pending before
NCLT be decided by the NCLAT
expeditiously.

30. Randhiraj Jindal Saxena Financial services
Thakur vs Private Ltd. (Financial Creditor)
Jindal Saxena filed an application for initiation
Financial of Corporate Insolvency
Services Ltd Resolution Process against
and others Mayfair Capital Private Limited in
NCLT, New Delhi which was
admitted. The company then made
an application to recall in the
same NCLT which was rejected.
Mr. Ramdhiraj Thankur (director
of the company), filed an appeal
in NCLAT on the grounds that
1. The order was passed by
NCLT without issue of the
notice to the company
2. The company is a financial
service provider as per
section 3(17) of IBC,
2016.
31. State Bank of Mr. V. Ramakrishnan ( Personal
India Vs. Guarantor) , the director of
Ramkrishnan Veesons Energy Systems Private
and Another Limited (Corporate Debtor) had
given personal guarantee and had
mortgaged collateral securities of
his assets with State Bank of
India(Financial Creditor). SBI
brought an action against the
The NCLAT set aside the order of
NCLT and held that on review of MoA
of the company, the company was a non
banking financial corporation and is a
financial service provider. For
applicability of IBC, the corporate
debtor needs to be a corporate person
and a financial service provider is not
considered one. Therefore, IBC not
applicable.
NCLAT upheld NCLT decision and
clearly stated that personal guarantor is
also protected until the moratorium
period is over.
This led to a SLP in Supreme Court.
The Supreme Court set aside NCLAT
judgment and allowed the appeal. The
Supreme Court held that Section 14 of
the code did not make any reference to
 personal guarantor for recovery Personal Guarantor and therefore period
of dues from Corporate Debtor. of moratorium would have no
The Corporate Debtor initiated application to the personal guarantor of
insolvency resolution process a Corporate Debtor.
against itself which was admitted
and an order of moratorium under
section 14 of IBC was issued
protecting the Corporate Debtor
from any recovery proceedings
and the Personal Guarantor also
sought protection under the
moratorium provision. NCLT
accepted Personal guarantor’s
claim of protection. Financial
Creditor challenged this in
NCLAT.
32. Aditya Raheja The Application u/s 9 was filed by The NCLAT observed that the
V Heritage the Operational Creditor (Heritage Respondent had not made clear as to
Marble Pvt. Marble Private Limited) against how the same invoice was shown to
Ltd.
Corporate Debtor (Mr. Aditya have been issued to two different
Raheja) before NCLT Mumbai. companies. Hence, the NCLAT was of
The Corporate Debtor defaulted in the view that application u/s 9 was not
making payments by stating that maintainable. However, the NCLAT
they had not received any stated that it does not remit the case
materials from Creditor. Creditor back to the NCLT Mumbai, as
enclosed the documents required settlement had been reached between
to prove default. The NCLT on the parties.
perusal of the documents admitted The NCLAT thereby, allowed the
the application and appointed the appeal and dismissed the Application
proposed IRP. preferred by the Respondent u/s 9 of the
Aggrieved by the Order, the Code.
Appellant (Mr. Aditya Raheja)
had challenged the Order passed
by the NCLT Mumbai Bench,
wherein an application for the
initiation of CIRP by the
Respondent (Heritage Marble
Private Limited) had been
admitted.
The Appellant submitted that
there was a dispute regarding the
 invoice on the basis of which
Demand Notice u/s 8(1) was
issued and Application u/s 9 was
filed. The Appellant stated that the
same invoice was shown to have
been issued by the Respondent to
the Appellant as well as one ‘M/s
Pebble Bay Developers Private
Limited’ which was a sister
concern of the Appellant.
The Respondent in its reply had
stated that the matter had been
settled between the parties.
33. Chirag Gada The application filed by the The NCLAT observed that the appellant
V. Bank of Managing director of the Ruby being the promoter of the Corporate
Baroda and Cables (Appellant) under Section Debtor, was ineligible to submit
Anr.
10 of the I&B Code, 2016 for Resolution plan according to Section
initiation of CIRP against Ruby 29A of the I&B Code, 2016. The
Cables was admitted by the NCLAT dismissed the application as
NCLT, Allahabad. Accordingly, the CIRP period was lapsed and as the
the IRP was appointed and liquidation proceedings had started.
moratorium was imposed.
Subsequently, an appeal was filed
stating that the resolution plan
ought to have been called from
others by provisions of section
25(2)(h) of I&B Code, 2016.
34. Mr. Rajnish The appellant is the shareholder of The NCLAT observed that as per
Gupta V. the corporate debtor. He filed an regulation 10 & 11 of the SIDBI, an
Small appeal against the admission of authority of the rank of Deputy General
Industries
application by the NCLT, New Manager was eligible to commence
Development
Bank of India Delhi Bench under Sec 7 of I&B proceedings before the adjudicating
Code. The appellant contended authority.
that the Deputy General Manager It was held that the incomplete form 2
was not an authorised person to could not be ground for rejection of the
file the application. It was brought application, as form 1 which was the
to the attention of the Tribunal application under Sec 7 was complete.
that the Deputy General Manager
was the authority who issued
notice when the debtor defaulted
in payment. It was further
 contended that the incomplete
Form-2 was a ground to reject the
application.
35. Mahesh The appellant was the Director of The Director’s contention that various
Kumar the Debtor Company who mails were sent to the IRP was not
Panwar V contended against the liquidation accepted. It was held that board of
Abhishek
order passed by the NCLT, New directors had to co-operate with the IRP
Anand
Delhi Bench on the approval of and such submissions could not be
the committee of Creditors. IT accepted. Thus, the NCLAT concluded
was contended by the Director that on expiry of 180 days from the
that the resolution process did not commencement of insolvency process
comply with the I&B code. The and on failure of directors to co-operate
Resolution Professional failed to with IRP, the commencement of
record the details of the Creditors. liquidation process was valid. Hence,
It was further contended that if the the appeal dismissed.
Resolution Professional had
followed the procedure as per the
IBC then the liquidation process
would not have been initiated.
The Resolution Professional
contended that the Directors had
failed to co-operate with the him
and did not submit the records and
the other title deeds when asked
for.
36. Tarini Steel The Appeal was filed by the The NCLAT found that the
Company Pvt. Tarini Steel Company Pvt. Ltd., modification made by the NCLT was
Ltd. V Trinity Resolution Applicants for the not illegal. It further observed that if the
Auto
Corporate Debtor, against an order Appellant’s claim was admitted, the
Components
passed by NCLT, Mumbai. NCLT would have no other choice but
Subsequent to the admission of to reject the Resolution plan and
application against the Debtor, an thereby order for liquidation of the
“expression of interest” was called Debtor Company. The same was
for. In this regard, only the however, not intended by the Appellant.
Appellant approached the NCLT The NCLAT thus, disposed of the
with a CoC-approved Resolution Appeal by granting liberty to the
Plan. The Resolution Applicants Appellant to withdraw the resolution
were existing promoters of the plan, if it was not satisfied with the
Company. The NCLT accepted amendment made therein.
the Resolution Plan and observed
that the certificate prescribing the
 promoters not to be “willful
defaulter” made them eligible to
submit a Resolution Plan under
Sec: 29A of the Code. However,
the NCLT modified the
Resolution Plan by stating that the
fresh Unsecured Loans infused by
the Promoters was required to be
converted into Equity so that the
burden of repayment was deferred
and instead dividend could be
distributed. This was upon
considering the financially
stressed position of the Debtor
Company. Further, the settling up
of crystalized liability up to 15%,
as proposed by the Appellant, was
deemed to be inappropriate for
Government dues and thus, the
same was deemed to be not
applicable.
The aggrieved Resolution
Applicant approached the NCLAT
contending that the Adjudicating
Authority had no jurisdiction to
modify the ‘resolution plan’ once
approved by the Committee of
Creditors.
37. Ranjeet NCLT Ahmedabad had admitted The NCLAT observed that there was no
Karnal V. an application filed under Section- clarity as to how the Respondent had
Bell Finrest 7 of IBC, 2016 by the filed proof of notice to the Appellant.
(India) Ltd.
Respondent-company. However, NCLAT held that serving notice on one
the Appellant had challenged the of the Directors cannot be treated as
order of NCLT-Ahmedabad on service on the ‘Corporate Debtor’.
the ground that there was no Furthermore, NCLAT observed that
notice served by the Respondent there was violation of rules of Natural
or the Adjudicating Authority. Justice as the NCLT had also conceded
The Appellant further submitted to the fact that the notice had been
that the Respondent had sent the issued and returned ‘un-served’.
notice to the Appellant’s old Therefore, NCLAT set-aside NCLT’s
address despite knowing the new order and remitted the matter back to
 address. Furthermore, the
appellant submitted that there was
no default of debt and that the
application filed by the
Respondent was non
maintainable.
The Respondent submitted that
the notice was issued, but it was
not disputed that the address of
Appellant had been changed. It
was also submitted by the
Respondents that the notice was
‘served’ on one of the Directors.
38. SBI V SKC NCLT Chennai had admitted an
Retail Ltd. application filed under Section 7
of IBC, 2016 and subsequently
had declared moratorium and
appointed IRP. The IRP had duly
fulfilled his duties such as making
public announcements and so on.
However, the Committee of
Creditors did not make any
payments towards the expenses of
the IRP. NCLT Chennai had
passed an order directing the
Committee of Creditors to pay for
the expenses/fee of the IRP.
The Appellant had submitted that
the Committee of Creditors was
not liable to pay the expenses of
IRP.
39. K.S. The Appeal was filed by K.S.
Rangaswamy Rangasamy,
v SBI Shareholder/Promoter/Director of
Summer India Textile Mills
Private Limited (Corporate
Debtor), against the admission of
insolvency application by NCLT,
Chennai. The Debtor did not
dispute the admission of
NCLT-Ahmedabad directing it to pass
appropriate order after hearing both the
parties. Henceforth, the appeal was
disposed of.
The NCLAT held that as per Regulation
33 of IBBI Regulations-2016, the
person who files the application either
under Section 7 or Section 9 of IBC,
2016 is required to bear the expenses
which is to be reimbursed by the
committee of creditors to the extent the
Committee of Creditors ratifies the
same.
Similarly, in this case, as per sub-
regulation (1) of Regulation 33, the
Appellant is liable to incur the expenses
of resolution professional. Thereafter,
the Appellant will get the amount
reimbursed by the Committee of
Creditors to the extent the amount as is
ratified by the Committee.
Therefore, the Appeal was disposed of
by modifying the impugned order.
The NCLAT observed that the Debtor
had not disputed the admission of
application and thereby the same was
not interfered with. In regard to the
extension sought in repayment, the
NCLAT held it to be open to the
‘Financial Creditor’ to settle the dispute
by moving an appropriate forum, if the
Resolution Applicant proposes ‘lesser
 application and merely argued that amount’ and ‘more time’ than that
State Bank of India & Anr. proposed by the Debtor. The appeal was
(Financial Creditor) had included thus, dismissed.
the debts of a different corporate
entity i.e. Summer India Weaving
and Processing Mills Private
Limited along with its claims. The
Debtor submitted that the same
was impermissible in law as
Section 3(11) of the I&B Code
does not include the debts of
another Company apart from the
‘Corporate Debtor’. The Debtor
further contended that it was ready
to pay the total amount with 9%
interest p.a. in 12 equal monthly
installments.
40. Sandeep The NCLT-Kolkata’s order was NCLAT observed that there was no
Kumar Gupta challenged as it had passed an misconduct on the part of the Appellant,
( Resolution order deciding not to appoint the but the NCLT was not satisfied with the
Professional)
Appellant as ‘Liquidator’ stating performance of the Appellant. NCLAT
V. Stewarts
and Lloyds of that he had failed to take further held that Adjudicating Authority
India appropriate steps towards the was well within its jurisdiction to
Resolution Plan and thus engage another person as ‘Resolution
appointed another person. Professional’ or ’Liquidator’ since it
The Appellant submitted that the was not satisfied with the performance
observance of NCLT-Kolkata was on part of the Appellant.
to be obliterated as it was contrary Therefore, the appeal was dismissed
to the facts. Further, the appellant due to absence of merits.
stated that there was wrong
observance by the NCLT as he
had completed all necessary
duties. Similarly, he submitted
that NCLT failed to appreciate
that the CoC in their meeting duly
approved the appointment of the
Appellant as the RP and so did the
Adjudicating Authority.
Therefore, the finding of the
Adjudicating Authority that RP
was appointed on the
 recommendation of the Debtor
was baseless.
Furthermore, it was also submitted
that there was no recommendation
from the board for replacement of
the Appellant and the Board is not
empowered to propose name of
IRP to act as liquidator.
However, the NCLT-Kolkata
observed that within 180 days
only one meeting of CoC took
place and thereafter no progress
was made as no meeting was held.
Subsequently, just before
completion of 180 days, the
Appellant submitted his report
that no Resolution plan had been
submitted by any Resolution
Applicant.
41. KLA The Appellant had filed an The NCLAT upheld NCLT’s order
Construction application under Section 9 of stating that the non-payment of
Technologies IBC, 2016 before NCLT New Advance could not give rise to a claim
Pvt. Ltd. V.
Delhi-III stating that the as an Operational-Debt. The NCLAT
CKG Realty
Private Respondent-company had further observed that there was a
Limited committed default. Appellant plausible dispute between the parties
submitted that the amount claimed with regard to the execution of the
was giving rise to claim on contract. Therefore, NCLAT granted
account of non-payment of an liberty to the Appellant to seek
advance payment in relation to the appropriate remedy before another legal
contract inter-se the parties for the forum (Civil Court). Thus, the appeal
construction. However, the was dismissed.
respondent-company stated that
the Appellant had not at all
commenced the work of
construction despite several
requests and for the same the
amount was not transacted. The
NCLT, New Delhi had rejected
the application observing that the
amount claimed was an advance
and the same did not fall under the
 ambit of Operational Debt unless
he established that there was a
debt due and payment arising out
of provision of goods or by
rendering of services.
42. Prithvi NCLT had admitted an NCLAT held that as per Rule-8 of the
Finvest application and initiated CIRP Adjudicating Authority Rules, 2016 the
Company Pvt. against the Appellant. application cannot be withdrawn once it
Ltd. V
Subsequently, the parties had was admitted. It can be withdrawn only
Olympia
Credit & settled and filed an Appeal before the admission of the application
Mercantile requesting the NCLAT to set- or in absence of any other illegality.
Pvt. Ltd. aside NCLT’s order as the parties Therefore, the appeal was dismissed.
had settled. The Respondent had
also affirmed that settlement had
been made between the parties.
43. Birendra NCLT New Delhi’s order was NCLAT placed reliance on Unigreen
Kumar V. challenged as it had dismissed the Global Private-Limited V. Punjab
Adel application under Section 9 of National Bank(AT) wherein it was held
Landmarks
IBC, 2016 stating that there was that when the winding-up proceedings
ltd.
pendency of winding up are initiated no application under
proceedings before the Hon’ble Section 10 can be filed by the Corporate
High Court. However, the Applicant in view of ineligibility under
appellant approached the NCLAT Section 11(d) of IBC,2016. NCLAT
to set-aside the order. further held that the view in Unigreen
Global Private Limited V. Punjab
National Bank (AT) was also applicable
to the Financial Creditor and
Operational Creditor as well. Therefore,
NCLAT held that the application under
Section 9 as per IBC, 2016 was not
maintainable and upheld NCLT New
Delhi’s order. Henceforth, the appeal
was disposed of by setting aside the
cost imposed on the appellant by
NCLT.
44. Mr. V. The Respondent had filed an NCLAT held that handing over or
Nagarajan V application before the Arbitral showing any document or certification
Meenakshi tribunal for the production of to any party would not amount to
Energy
certificates and documents. The violation of the order of Moratorium.
Limited
Tribunal directed the appellant to Therefore, the Resolution Professional
produce the same. However, requested the withdrawal of the appeal
 Appellant submitted that and the same was allowed by NCLAT.
Applicant was under CIRP and no The appeal was dismissed on
application could be filed before withdrawal.
any court as per Section 14 of
IBC, 2016 as the appellant would
not be able to exercise its right of
lien.
Furthermore, Arbitral Tribunal
while passing the order observed
that “an interim direction was to
avoid any controversy on the
aspect, whether all the certificates
obtained and in the custody of the
claimant are made available. Also,
that whether any condition
regarding the payment of the
amounts was said to be due to the
claimant, after the initiation of
Arbitration Proceedings, has to be
imposed, may have also to be
considered”. NCLT Chennai
further that the Appellant could
approach the Arbitral Tribunal
was consideration and accordingly
disposed of the matter.
45. Uttarakhand Corporate Debtor had defaulted in NCLAT held that since moratorium was
Power paying the electricity charges for declared, the appellant cannot claim
Corporation which the power supply was charges prior to 31st August 2017,
Ltd. V ANG
disconnected Application under though it could be submitted to IRP.
Industries Ltd.
Section 10 of IBC, 2016 was Furthermore, NCLAT stated that the
admitted and moratorium was charges post the restoration of supply
declared. Since the company had could be claimed that is 12th October
to be working, the IRP filed a 2017 till the end of moratorium period.
petition for restoration of power Therefore, IRP was directed to pay the
for which NCLT New Delhi current electricity charges on behalf of
directed Appellant to restore the the debtor first instalment for the month
power. of October, 2017 to be paid by 15th
Appellant challenged the order of February, 2018, and the dues for the
NCLT New Delhi for directing it month of November be paid by 28th
to restore the power without February, 2018; dues for the month of
having paid the electricity December, 2017 be paid by 15th
 charges. March, 2018 and the dues for January,
2018 and February, 2018 be paid by
31st March, 2018.
It was held that if at all the payment
was not done within the stipulate
period; the appellant had the liberty to
issue notice and disconnect the power
supply.
46. Mohan NCLT Chennai had admitted an NCLAT observed that there was the
Shivraman application under Section 9 of dispute raised by the debtor was not of
Nair V. IBC, 2016 by the the claim made by the Creditor in
Agarwal Coal
Creditor(Respondent) and application filed under Section-9. The
Corporation
Ltd. initiated CIRP. However, debtor had defaulted pursuant to two
appellant challenged NCLT’s high seas sale agreements for which no
order on the ground that there was dispute was raised.
existence of dispute regarding the
supply of goods. Debtor further Therefore, NCLAT stated that NCLT
submitted that Creditor had Chennai had rightly admitted the
supplied the wrong goods which application. Henceforth, the appeal was
was brought to the notice of the rejected.
debtor by the Customs authorities
via show cause notice dated
March 2013.

But, respondent submitted that the

dispute raised by the debtor was
with regard to the supply between
the period of March 2012 to
February 2013 and no claim had
been made for that period in the
application which was filed under
Section 9 of IBC, 2016.It was
further submitted that the debtor
had defaulted in payments for
Two high seas sale agreements
dated November 2013. Pursuant to
the agreement debtor got the coal
from November 2013 to February
2014.

47. Gay Printers The Appeal was filed by Gay The NCLAT upheld the order of the
 V Pawan Printers (Financial Creditor) NCLT and held that the partnership
Buildwell Pvt. against the order passed by NCLT firm had dissolved when one of the
Ltd. (New Delhi). The Appellant was a partner expired. Further, there was no
part of a partnership firm to whom proof submitted to show that the debts
the Debtor owed a sum of rupee and liabilities of the partnership had
one crore. Subsequently, upon the been assigned to the Appellant. The
death of the other partner, the Appeal was thus dismissed.
Appellant entered into a
partnership with another person.
However, the debts and liabilities
owed to the firm were not
assigned. The Appellant then
approached the NCLT which
dismissed the petition and
subsequent review petition on the
ground that the firm had dissolved
on the death of the partner. Thus,
the Appellant was not deemed to
be a ‘Financial Creditor’.

The Appellant then approached

the NCLAT on the same grounds.

48. Krishna The operational creditor (Elecon
Kraftex Pvt. Engineering Co. Ltd.) filed an
Ltd. V HDFC appeal against the order passed by
Bank and
the Adjudicating Authority against
Others
the application filed under Sec 9
of the IBC. An application for
condonation of delay was also
filed. The appellate tribunal found
no good and convincing ground
has been shown to condone the
delay. There was an ‘existence of
dispute’ pending even before the
issuance of demand notice under
sub-section (1) of Section 8 of the
I & B Code, as noticed by the
Adjudicating Authority.
the appellate tribunal stated that if all
information is provided by an applicant
as required under Section 10 and Form
6 and if the Corporate applicant is
otherwise not ineligible under Section
11, the Adjudicating Authority is bound
to admit the application and cannot
reject the application on any other
ground. If incomplete, time must be
given to rectify the same.
Before remitting back the matter to
NCLT, they also added that any fact
unrelated or beyond the requirement
under ‘I&B’ Code or ‘Forms
prescribed’ under Adjudicating
 o evidentiate their arguments, the
applicant produced an excerpt
before NCLAT wherein it has
been stated by NCLT that the
applicant has no sufficient evident
to prove their debt and also tried
to escape civil imprisonment.
Authority Rules (Form 6 in the present
case) are not required to be stated or
pleaded. Non-disclosure of any fact,
unrelated to Section 10 and Form 6
cannot be termed to be suppression of
facts.

They further added that by virtue

of S.11 of the Code (Persons not
entitled to make application and to
rejected), they do not come under
any of the exceptions listed in the
section. Nor did NCLT bench cite
any reason from the above
exceptions for rejecting their
CIRP petition but had stated
irrelevant to the Code. Therefore,
they contended that their petition
is to be admitted.

The 7th respondent in the matter

was the financial creditor, who
clarified that they had no
objection in the corporate
applicant initiating insolvency
process.

49. Chand Khan, NCLT New Delhi-iii had passed
MD- CK an order admitting the application
Infrastrusture of the Respondent-company under
Ltd. V. RCI
Section 7 and initiated CIRP
Industries and
Technologies against the Appellant-company.
The order of NCLT New Delhi
was challenged by the Appellant
on the ground that it was passed in
violation of principles of natural
justice as no notice was issued by
the Adjudicating Authority.
Appellant also stated that the
NCLAT relied on the case of
Innoventive Industries V. ICICI Bank
& Anr (AT) and set-aside NCLT New
Delhi’s order as no notice was issued to
the Appellant. NCLAT did not remit the
matter to NCLT New Delhi as the
parties had settled. Therefore, NCLAT
declared the order of NCLT New Delhi
illegal in this case. The Adjudicating
Authority was to fix the fee of IRP and
the same was to be paid by the Debtor.
dispute was settled between the
parties.

Similarly, the financial

creditor/Respondent-company
also affirmed that Adjudicating
Authority had directed it to issue
notice to the Appellant-company.
But no direct notice was issued by
the Adjudicating Authority to the
Appellant-company.