TC-06 Respondent

TEAM CODE – TC 06
II SURANA & SURANA AND UPES SCHOOL OF LAW
NATIONAL INSOLVENCY LAW MOOT COURT COMPETITION, 2019
BEFORE
THE NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI
IN THE MATTER OF –
IB / ____ / 2019
TRADE UNION v. WEEKND AIRLINE PVT LTD
KAILASH BANK AND ORS v. SURESH RATH, RESOLUTION PROFESSIONAL & ANR
INDIAN CREDITORS v. MS. OLIVIA
NARESH SINGHVI v. SURESH RATH, RESOLUTION PROFESSIONAL
(APPLICANTS) (RESPONDENTS)
MEMORIAL FOR RESPONDENTS

[TABLE OF CONTENTS] Page | I
TABLE OF CONTENTS
LIST OF ABBREVIATIONS ........................................................................................... III
TABLE OF AUTHORITIES ......................................................................................... VIII
STATEMENT OF JURISDICTION ............................................................................. XIV
STATEMENT OF FACTS ..............................................................................................XV
STATEMENT OF ISSUES ............................................................................................ XVI
SUMMARY OF ARGUMENTS ...................................................................................XVII
ARGUMENTS ADVANCED ............................................................................................. 1
I. THE APPLICATION FILED UNDER INSOLVENCY AND BANKRUPTCY
CODE, 2016 IS NOT ADMISSIBLE .............................................................................. 1
A. THE APPLICATION IS NOT ADMISSIBLE UNDER § 7 OF THE CODE. ................................ 1
i. Pilots are not allottee as prescribed under RERA. ............................................... 1
ii. In arguendo, pilots are not financing the construction of the flats. ....................... 2
B. THE APPLICATION IS NOT ADMISSIBLE UNDER § 9 OF THE CODE. ................................ 2
i. Weeknd does not owe any operational debt to the pilots....................................... 2
ii. In arguendo, no valid demand notice has been delivered to Weeknd. ................... 3
II. THE CLAIMS OF KAILASH BANK AND BANK OF DEHRADUN CANNOT
BE ADMITTED BY THE RP/COC. .............................................................................. 4
A. WEEKND AND MR. HOODA ARE SEPARATE LEGAL ENTITIES. ...................................... 4
B. THE CLAIMS FOR MR. HOODA’S PERSONAL LOAN CANNOT BE DEALT UNDER THE
CODE… ......................................................................................................................... 4
MEMORIAL FOR RESPONDENTS Surana & Surana and UPES National Insolvency MCC, 2019
[TABLE OF CONTENTS] Page | II
III. THE RP/COC IS RIGHTFUL IN DENYING FINANCIAL DEBT OF RSJ
BANK............................................................................................................................... 5
A. ACCEPTANCE OF RSJ BANK’S CLAIM WILL AMOUNT TO ALTERATION OF CONTRACTUAL
TERMS. ........................................................................................................................... 5
B. WEEKND HAS NOT BECOME A CORPORATE DEBTOR FOR RSJ BANK. .......................... 6
IV. THE DIRECTORS OF WEEKND CAN BE HELD PERSONALLY LIABLE
FOR FURNISHING CURRENT ASSETS OF WEEKND AS SECURITY. ................ 6
V. MR. VIKAS CANNOT ENFORCE HIS CONTRACTUAL RIGHTS. ................ 7
VI. MS. OLIVIA’S APPLICATION FOR RECOGNIZATION OF US VOLUNTARY
BANKRUPTCY PROCEEDING SHOULD BE ACCEPTED. ..................................... 8
A. US PROCEEDINGS IS A FOREIGN MAIN PROCEEDING................................................... 9
B. US PROCEEDING IS A FOREIGN NON-MAIN PROCEEDING. .......................................... 10
C. RELOCATION OF AHSB’S REGISTERED OFFICE IS IN ACCORDANCE WITH PUBLIC POLICY
OF INDIA. ..................................................................................................................... 11
VII. THERE CAN BE TWO CONCURRENT INSOLVENCY PROCEEDINGS IN
DIFFERENT JURISDICTIONS. ................................................................................. 11
VIII. UPON ADMISSION OF CIRP THE INVOCATION OF PERSONAL
GUARANTEE BY BANK OF DEHRADUN IS LIABLE TO BE SET ASIDE.......... 12
IX. MR. NARESH SINGHVI CAN BE ALLOWED TO PRESENT THE PLAN AS A
SCHEME, IN CASE THE CORPORATE DEBTOR GOES INTO
LIQUIDATION…… ..................................................................................................... 14
PRAYER ..................................................................................................................... XVIII
[LIST OF ABBREVIATIONS] Page | III
LIST OF ABBREVIATIONS
AIR All India Reporter
SCALE Supreme Court Almanac
CA Company Appeals
CIRP Corporate Insolvency Resolution Process
IB Insolvency Board
NCLAT National Company Law Appellate Tribunal
NCLT National Company Law Tribunal
SC Supreme Court
SCC Supreme Court Cases
TaxPub Tax Publication
Mah Maharashtra
Ker Kerala
Del Delhi
Guj Gujarat
Kar Karnataka
CLJ Company Law Journal
[LIST OF ABBREVIATIONS] Page | IV
Cal Calcutta
Civ Civil
UNCITRAL United States Commission on International Trade Law
Ed Edition
r/w read with
ILR Insolvency Law Report
SCALE Supreme Court Almanac
CLA Corporate Law Advisor
CompCas Company Cases
SCL SEBI and Corporate Laws
BC Banking Cases
SCR Supreme Court Reporter
UKSC Supreme Court of United Kingdom
AC Appeal Cases
Edn Edition
UKPC United Kingdom Privy Council Decisions
DLT Delhi Law Times
[LIST OF ABBREVIATIONS] Page | V
NY New York
BR Bankruptcy Reporter
SDNY Southern District New York
ER England Reports
Ch Chancery Division
VSC Supreme Court of Victoria
ECR European Court Reports
ECWA England and Wales Court of Appeal
WLR Weekly Law Reports
EWHC High court of England and Wales
FCA Financial Conduct Authority
CompLJ Company Law Journal
LLJ Labour Law Journal
QB Queen’s Bench
F Supp Federal Supplement
SCR Solicitor’s Completion Requirements
SCJ Supreme Court Justice
[LIST OF ABBREVIATIONS] Page | VI
Ves Vesey Senior's Reports
BCLC British Company Law Cases
BCC British Company Law Cases
Anr Another
AHM Ahmedabad
AT Appellate Tribunal
COC Committee of Creditors
IBBI Insolvency Bankruptcy Board of India
IR Interim Resolution
IRP Interim Resolution Professional
KB Kolkata Bench
Ltd Limited
NCLAT National Company Law Appellate Tribunal
Ors Others
Pvt Private
RP Resolution Professional
v Versus
[LIST OF ABBREVIATIONS] Page | VII
¶ Paragraph
§ Section
UKHL United Kingdom House of Lords
UOI Union of India
US United States
HL House of Lords
ALL ER All India England Reporter
Draft Z Draft Part Z on Cross Border
Weeknd The Weeknd Airlines Pvt. Ltd.
AHSB Air Hotels SDN BHD
Weeknd Productions Weeknd United Productions Pvt. Ltd.
Code Insolvency and Bankruptcy Code, 2016
RERA Real Estate (Regulation and Development) Act, 2016
COMI Center of Main Interest
asm Assumption
cl Clause
AIR All India Reporter
[TABLE OF AUTHORITIES] Page | VIII
TABLE OF AUTHORITIES
CASES
Balkrishan Gupta And Ors v Swadeshi Polytex Ltd And Anr [1985] 758 Comp 14
Cas 563 (SC) [12]
Balwant Rai Saluja v Air India Ltd [2014] 9 SCC 407 4
Crompton Greaves Consumer Electricals Ltd v KPR Industries (India) Ltd [2018] 3
208 Comp Cas 269
Dr B V S Lakshmi v Geometrix Laser Solutions Pvt Ltd [2018] 142 CLA 321, 7
Dr BVS Lakshmi v Geometrix Laser Solutions Pvt Ltd [2018] 142 CLA 321 8
Ferro Alloys Corporations Ltd v Rural Electrification Corporation [2019] 148 6
CLA 159
IDBI Bank Ltd v Jaypee Infratech Ltd CA No.26/2018 in Company Petition No 6
(IB)77/AD/2017
In Re Wearwell Cycle Co (I) Ltd [1998] 94 Comp Cas723 (Delhi) 14
Innoventive Industries v ICICI Bank &Ors [2018] 1 SCC 407 3
K Kishan v Vijay Nirman Company Private Limited[2018] 146 CLA 0001 2
Kashinath Dikshit v Surgicals Pharmaceuticals Co (Mysore) 1 [2002] 40 SCL 14
921 (Kar)
[TABLE OF AUTHORITIES] Page | IX
Killick Nixon Limited and Ors v Bank of India and Ors [1985] 57 Comp Cas 14
831(Bom)
Kumar Jyoti Ranjan and Priyanka Kumari v Innovation House Industries Pvt Ltd 3
[2018] 142 CLA 126
M/S Electronics Corporation of India Ltd v Secretary, Revenue DepartmentAIR 4
[1999] SC 1734
M/S Howrah Trading Co Ltd v Commissioner of Income Tax, Central Calcutta 14
[1959] 29 Comp Case 282 (SC)
M/S National Highway Authority of India v Progressive Constructions Ltd 240 5
[2017] DLT 253 [41]
Macquarie Bank Ltd v Shilpi Cable Technologies Ltd [2018] 2 SCC 674 3
Neeraj Bhatia v Davinder Ahluwalia and Ors[2018] 146 SCL 305 8
Nikhil Mehta and Sons (HUF) v AMR Infrastructure Ltd. 2017 SCC OnLine 7
NCLAT 859
NK Mohapatra v State of Orissa[1999] 96 Comp Cas 49(Orissa) 14
Pioneer Urban Land and Infrastructure Limited and Ors v Union of India (UOI) 2
and Ors [2019] 10 SCALE 523
Polymat India Pvt Ltd and Anr v National Insurance Co Ltd and Ors AIR [2005] 5
SC 286
[TABLE OF AUTHORITIES] Page | X
Satish Mittal v Ozone Builders and Developers Pvt Ltd [2017] 140 CLA 76 3
Senthil Kumar Karmegam v Dolphin Offshore Enterprises (Mauritius) Pvt Ltd 3
[2018] 145 SCL 26
SK Gupta and Ors v KP Jain and Ors [1979] 49 Comp Cas 342 (SC) 14
State Trading Corporation v The Commercial Tax Officer [1964] (4) SCR 89 4
Tata Engineering and Locomotive Co Ltd v State of Bihar and Ors [1964] 34 4
Comp Cas 458(SC)
Union territory of Pondicherry and Ors v P V Suresh [1994] 2 SCC 70 5
Uttam Galva Steels Limited v DF Deutsche Forfait AG and Ors [2017] 204 Comp 3
Cas 511
Y. Shivram Prasad v S. Dhanapal [2019] 153 SCL 153 15
STATUTES
Draft Part Z on Cross Border Insolvency 8
Real Estate (Regulation and Development) Act 2016 1
The Insolvency and Bankruptcy Code 2016 1
BOOKS
A Ramaiya, Guide to The Companies Act (18th edn, LexisNexis 2015) 14
[TABLE OF AUTHORITIES] Page | XI
Ashish Makhija, Insolvency and Bankruptcy Code of India (1st edn, Lexis Nexis 13
2018)
Bryan A Garner, Black’s Law Dictionary (9th edn, St Paul 2009) 1712 7
C. M. Schmitthoff, M. Kay and G. K. Morse, Palmer's Company Law (1st vol, 14
22nd edn, Stevens & Sons Ltd 1976)
D. Baird and T. Jackson, Cases, Problems, and Material on Bankruptcy (2nd edn, 13
University Casebook Series 1990)
Look Chan Ho, A Commentary on the UNCITRAL Model Law (vol 1, 4th edn, 11
2017) 616-18
Roy Goode, Principles of Corporate Insolvency Law (4th edn, Sweet & Maxwell 13
2011) 585
S.C. Sekaran v Amit Gupta & Ors[2019] 3 Comp LJ 178 15
Sumant Batra, Corporate Insolvency Law and Practice (1st edn, Eastern Book 6
Company 2017) 541
UNCITRAL, Legislative Guide on Insolvency Law (1st edn, United Nations 6
Publication 2005) 135
UNCITRAL, Legislative Guide on Insolvency LawModel Law onCross-Border 11
Insolvency:The Judicial Perspective (1st edn, United Nations Publication 2014)
Wadhwa Law Chambers, Guide to the Insolvency & Bankruptcy code (1st vol, 5
1st edn, Wadhwa Brothers 2019)
[TABLE OF AUTHORITIES] Page | XII
RULES
Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules 2016 3
REPORTS
European Union Council, Report on the Convention of Insolvency Proceedings 11
(Law Com No 6500/96, 1996)
Ministry of Corporate Affairs, ‘Report of the Insolvency Law Committee on 9
Cross Border Insolvency’ (October, 2018)
Ministry of Corporate Affairs, ‘Report of the Insolvency Law Committee’ 1
(March, 2018)
FOREIGN CASES
In Re Codere Finance (UK) Limited [2015] EWHC 3778 11
In Re Creative Finance Ltd [2016] 543 BR 498 11
In re Eurofood IFSC Ltd [2006] All ER 1078 9
In Re Interedil Srl (C-396/09) [2011] ECR I-9939 10
In re Lee [2012] 472 B.R. 156 [32]. 9
In Re Metinvest BV [2016] EWHC 79 (Ch) 11
In Re Stanford International Bank Ltd and Ors [2011] Ch 33 9
Irish Bank Resolution Corp Ltd v Quinn [2012] NICh 1 9
[TABLE OF AUTHORITIES] Page | XIII
Lee v Lee Air Farming Co [1960] UKPC 33 4
Legend International Holdings Inc v Legend International Holdings Inc [2016] 10
VSC 308
Macks v Blacklaw & Shadforth Pty Ltd [1997] FCA 667 13
Prest v Petrodel Resources [2013] UKSC 34 4
Re Bear Stearns High-Grade Structured Credit Strategies 389 BR 325 (2008) 9
Re Fairfield Sentry Ltd 714 F 3d 127 (2013) 8
Robertson v Grigg (1932) 47 CLR. 257 12
Salomon v A Salomon & Co Ltd [1897] AC 22 4
Tannenbaum v Tannenbaum 234 App Div 660 (1931) 8
[STATEMENT OF JURISDICTION] Page | XIV
STATEMENT OF JURISDICTION
The Respondents solemnly submits to the inherent jurisdiction of the Hon’ble National
Company Law Tribunal, Delhi arising by the virtue of § 60(5) of the Insolvency and
Bankruptcy, 2016 to adjudicate the present application. The Hon’ble Tribunal has the territorial
jurisdiction by the virtue of § 60(1) of the Insolvency and Bankruptcy, 2016 as respondent’s
registered office is in Delhi.
[STATEMENT OF FACTS] Page | XV
STATEMENT OF FACTS
Mr. Hooda established ‘The Weeknd Airlines’ Pvt. Ltd. [Hereinafter Weeknd] in 2011 and
he had 90% of shareholding in it. Weeknd established a wholly owned subsidiary i.e. Air Hotels
SDN BHD [Hereinafter AHSB].
In 2018 took the Company to markets of Russia and Europe. To start its ventures in Europe the
company took a loan of INR 100 Cr. from the Bank of Dehradun furnishing personal guarantee
of Mr. Vikas Sharma against the loan.
Mr. Hooda had defaulted on his loans of Kailash Bank and Bank of Dehradun. In June 2018,
another wholly owned subsidiary of Weeknd. Weeknd United Productions Pvt. Ltd.
[Hereinafter Weeknd Productions] was incorporated. RSJ Bank provided a loan of INR 150
Cr. by furnishing of Weeknd’s current assets as security.
AHSB shifted their registered office from Malaysia to USA as the law governing Insolvency
in USA provides for an expedited restructuring process. Meanwhile two senior pilots of
Weeknd were terminated. Weeknd defaulted on the loan of Bank of Dehradun and personal
guarantee of Mr. Vikas was invoked. Mr. Hooda on his birthday announced flats at 50% of
market price to all of its employees but the possession was not delivered on the due date.
The trade union instituted an application under Insolvency and Bankruptcy Code, 2016
[Hereinafter Code] in the National Company Law Tribunal [Hereinafter Tribunal] for
initiating Corporate Insolvency Resolution Process. The claims of Kailash Bank, Bank of
Dehradun, RSJ Bank, Mr. Vikas were rejected thus each of them moved to NCLT.
AHSB filed a voluntary bankruptcy petition under Chapter 11 of the US bankruptcy Code in
the US Bankruptcy Court for the purpose of re-organization. Bankruptcy Court appointed Ms.
Olivia as Interim Trustee. Mr. Naresh Singhvi’s highest bid was rejected, thus the present
application.
[STATEMENT OF ISSUES] Page | XVI
STATEMENT OF ISSUES
1. Whether the application filed under Insolvency and Bankruptcy Code, 2016 is admissible?
2. Whether the claims of Kailash Bank and Bank of Dehradun can be admitted by the
RP/COC?
3. Whether the RP/COC is rightful in denying financial debt of RSJ Bank?
4. Whether the directors must be held personally liable for furnishing current assets of
Weeknd as security?
5. Whether Mr. Vikas can enforce his contractual?
6. Whether Ms. Olivia’s application for Recognition of US Voluntary Bankruptcy Proceeding
be accepted?
7. Whether there can be two concurrent Insolvency Proceedings in different jurisdiction?
8. Whether upon admission of CIRP the invocation of Personal Guarantee by Bank of
Dehradun is liable to be set aside?
9. Whether Mr. Naresh Singhvi can be allowed to present the plan as a Scheme, in case the
Corporate Debtor goes into liquidation?
[SUMMARY OF ARGUMENTS] Page | XVII
SUMMARY OF ARGUMENTS
1. The application filed under Code is not admissible as: application is filed by Trade
Union to initiate the CIRP of Weeknd and it is not admissible under § 7 of the Code nor in
the § 9 of the Code.
2. The claims of Kailash Bank and Bank of Dehradun cannot be admitted by the
RP/COC as: Weeknd and Mr. Hooda are separate legal entity.
3. The RP/COC is rightful in denying financial debt of RSJ Bank as: acceptance of claim
will amount to alteration of contractual terms and Weeknd has yet not become a Corporate
Debtor for RSJ Bank.
4. The directors must be held personally liable for furnishing current assets of Weeknd
as security as: as directors have not acted in accordance with § 66 of the Code
5. Mr. Vikas cannot enforce his contractual as: there is no consideration for time value of
money for his debt against Weeknd.
6. Ms. Olivia’s application for Recognition of US Voluntary Bankruptcy Proceeding can
be accepted as: US proceeding is a foreign main proceeding and also the foreign non main
7. There can be two concurrent Insolvency Proceedings in different jurisdiction as: US
Proceeding is a foreign main proceeding.
8. Upon admission of CIRP the invocation of Personal Guarantee by Bank of Dehradun
is liable to be set aside as: amount paid by Mr. Vikas is preferential transaction under §
43 of the Code.
9. Mr. Naresh Singhvi can be allowed to present the plan as a Scheme, in case the
Corporate Debtor goes into liquidation as: he is neither a member nor a creditor of
Weeknd.
[ARGUMENTS ADVANCED] Page | 1
ARGUMENTS ADVANCED
I. THE APPLICATION FILED UNDER INSOLVENCY AND BANKRUPTCY CODE, 2016 IS NOT
ADMISSIBLE
(¶ 1.) It is humbly submitted that the application filed by the Trade Union against Weeknd is
not admissible under Insolvency and Bankruptcy Code, 2016 as first, the application is not
admissible under § 7 of the Code [A]; and secondly, the application is not admissible under §
9 of the code [B].
A. THE APPLICATION IS NOT ADMISSIBLE UNDER § 7 OF THE CODE.
(¶ 2.) A financial creditor can file an application for initiating corporate insolvency resolution
process against a corporate debtor.1 Financial creditor refers to a person to whom a financial
debt is owed.2 Further, money raised from allottee/homebuyers is a financial debt. 3 However,
in the present case, there exists no financial debt as first, pilots are not allottee as prescribed
under Real Estate (Regulation and Development) Act, 2016 [Hereinafter ‘RERA’] [i]; and
secondly, In arguendo, pilots are not financing the construction of the flats [ii].
i. Pilots are not allottee as prescribed under RERA.
(¶ 3.) An allottee is a person to whom a plot, apartment or building is sold by promoter,4 and
a promoter refers to a person who constructs or develops a project, building or apartment. 5
1
The Insolvency and Bankruptcy Code 2016, s 7(1).
2
3
The Insolvency and Bankruptcy Code 2016, s 5(8)(f); Ministry of Corporate Affairs, ‘Report of the Insolvency
Law Committee’ (March, 2018) 17.
4
Real Estate (Regulation and Development) Act 2016, s 2(d).
5
Real Estate (Regulation and Development) Act 2016, s 2(zk).
In the present case, the respondent company Weeknd is in the business of airways only.6
Thereby, the flats offered by it to the pilots are not developed or constructed by Weeknd. Thus,
Weeknd is not a promoter under RERA. Hence, the pilots are not allottee under RERA.
ii. In arguendo, pilots are not financing the construction of the flats.
(¶ 4.) Home buyers/allottees give advances to the real estate developer and thereby finance
the real estate project at hand 7 and thus money raised by home buyers fall within § 5(8)(f) of
the Code.8 In the present case, as established above Weeknd is not the promoter of the said
flats. Hence, the amount given by pilots to Weeknd has not been utilized by it to develop or
construct the said flats. Thus, the pilots are not financing the construction of the flats.
Therefore, the application filed is not admissible under § 7 of the Code.
B. THE APPLICATION IS NOT ADMISSIBLE UNDER § 9 OF THE CODE.
(¶ 5.) The application filed by the trade union is not maintainable under § 9 of the Code as
first, Weeknd does not owe any operational debt to the pilots [i]; and secondly, in arguendo,
no valid demand notice has been delivered to Weeknd [ii].
i. Weeknd does not owe any operational debt to the pilots.
(¶ 6.) Existence of an operational debt is a necessary prerequisite for initiating CIRP under §
9 of the Code.9 Operational debt means payment of claims in respect of provision of goods and
services including employment.10 Furthermore, when an applicant has no claim in respect of
6
Moot Proposition, ¶ 1.
7
Pioneer Urban Land and Infrastructure Limited and Ors v Union of India (UOI) and Ors [2019] 10 SCALE 523
[43].
8
Ministry of Corporate Affairs, ‘Report of the Insolvency Law Committee’ (March, 2018) 17.
9
K Kishan v Vijay Nirman Company Private Limited [2018] 146 CLA 0001 [11].
10
goods and services rendered or a claim against employment than the application is not
admissible under § 9 of the Code.11
(¶ 7.) In the present case, the flats offered to the pilots by Weeknd are not in respect of any
goods or services rendered from the pilots. Further, the flats are not part of the pilots’ salaries
rather they are mere gifts which were to be given by Weeknd.12 Thus, Weeknd does not owe
any operational debt to the pilots.
ii. In arguendo, no valid demand notice has been delivered to Weeknd.
(¶ 8.) The operational creditor is mandatorily required 13 to first deliver a demand notice of
the unpaid debt to the corporate debtor in the manner provided in § 8(1) of the Code.14 Further,
Sub-rule (1) of Rule 5 15 mandates an operational creditor to deliver to the corporate debtor the
demand notice in Form-3.16 The application not in the mandatory format of Form 3 are to be
dismissed. 17
(¶ 9.) In the present case, the applicant has sent several written reminders to Weeknd about
the pending delivery of the flats.18 However, these were mere written communications and
none of them were in mandatory format of Form 3. Thus, no valid demand notice has been
delivered to Weeknd. Hence, the application filed by Trade Union is not admissible under § 9
of the Code.
11
Satish Mittal v Ozone Builders and Developers Pvt Ltd [2017] 140 CLA 76 [6].
12
13
Crompton Greaves Consumer Electricals Ltd v KPR Industries (India) Ltd [2018] 208 Comp Cas 269 [7];
Innoventive Industries v ICICI Bank &Ors [2018] 1 SCC 407 [30].
14
Macquarie Bank Ltd v Shilpi Cable Technologies Ltd [2018] 2 SCC 674 [6]; ibid [17].
15
Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules 2016, rule 5(1).
16
Uttam Galva Steels Limited v DF Deutsche Forfait AG and Ors [2017] 204 Comp Cas 511 [28].
17
Senthil Kumar Karmegam v Dolphin Offshore Enterprises (Mauritius) Pvt Ltd [2018] 145 SCL 26 [5]; Kumar
Jyoti Ranjan and Priyanka Kumari v Innovation House Industries Pvt Ltd [2018] 142 CLA 126 [8].
18
(¶ 10.) Therefore, it is humbly submitted that the application filed by Trade Union against
Weeknd to initiate CIRP is not admissible under the Code.
II. THE CLAIMS OF KAILASH BANK AND BANK OF DEHRADUN CANNOT BE ADMITTED BY
THE RP/COC.
(¶ 11.) It is humbly submitted that the claims of Kailash Bank and Bank of Dehradun cannot
be admitted by the RP/COC as first, Weeknd and Mr. Hooda are separate legal entity [A]; and
secondly, the claims for Mr. Hooda’s personal loan cannot be dealt under the Code [B].
A. WEEKND AND MR. HOODA ARE SEPARATE LEGAL ENTITIES.
(¶ 12.) A registered company is an entity distinct 19 from its members, 20 even if the person holds
all the shares in the company. 21 The corporation can sue and be sued exclusively for its own
purposes and creditors of the members have no right to the assets of the corporation. 22
In the present case, Mr. Hooda has single largest shareholding with 90% shares in the
company. 23 Further, the said loans from Kailash Bank and Bank of Dehradun were taken by
him in his personal capacity. 24 Moreover, Weeknd has a separate legal existence from Mr.
Hooda. Thus, the claims for the loan of Kailash Bank and Bank of Dehradun cannot be
considered in the CIRP of Weeknd.
B. THE CLAIMS FOR MR. HOODA’S PERSONAL LOAN CANNOT BE DEALT UNDER THE
CODE.
19
State Trading Corporation v The Commercial Tax Officer [1964] (4) SCR 89; Prest v Petrodel Resources [2013]
UKSC 34.
20
Salomon v A Salomon & Co Ltd [1897] AC 22; Lee v Lee Air Farming Co [1960] UKPC 33.
21
ibid; M/S Electronics Corporation of India Ltd v Secretary, Revenue Department AIR [1999] SC 1734; Balwant
Rai Saluja v Air India Ltd [2014] 9 SCC 407.
22
Tata Engineering and Locomotive Co Ltd v State of Bihar and Ors [1964] 34 Comp Cas 458(SC); ibid.
23
24
(¶ 13.) Furthermore, Part III of the Code deals with the insolvency of individual person and
Debt Recovery Tribunal is Adjudicating Authority in that part. However, the said part of
enactment has not been notified by the Central Government.25 Thus, the claims for the financial
liabilities of Mr. Hooda will not be dealt with according to the provisions of the Code and will
not be considered by the Tribunal.
(¶ 14.) Therefore, it is humbly submitted that the claims of Kailash Bank and Bank of
Dehradun cannot be admitted by the RP/COC.
III. THE RP/COC IS RIGHTFUL IN DENYING FINANCIAL DEBT OF RSJ BANK.
(¶ 15.) It is humbly submitted that the RP/COC is rightful in denying the financial debt of RSJ
Bank as; first, acceptance of RSJ Bank’s claim will amount to alteration of contractual terms
[A]; and secondly, Weeknd has not become a Corporate Debtor for RSJ Bank[B].
A. ACCEPTANCE OF RSJ BANK’S CLAIM WILL AMOUNT TO ALTERATION OF
CONTRACTUAL TERMS.
(¶ 16.) It is a well-established principle of law that a court cannot alter the terms of contract or
rewrite the contract.26
(¶ 17.) In the present case, the terms of the contract permit the 1st EMI of loan taken from RSJ
Bank to be paid on 1st January 2020 and the remaining amount post this date.27 Thus, on
acceptance of the Bank’s claim the loan amount will be repaid soon before the time decided in
the contract. Therefore, the acceptance of RSJ Bank’s claim will amount to alteration of
contractual terms.
25
Wadhwa Law Chambers, Guide to the Insolvency & Bankruptcy code (1st vol, 1st edn, Wadhwa Brothers 2019)
xii.
26
Union territory of Pondicherry and Ors v P V Suresh [1994] 2 SCC 70; M/S National Highway Authority of
India v Progressive Constructions Ltd 240 [2017] DLT 253 [41]; Polymat India Pvt Ltd and Anr v National
Insurance Co Ltd and Ors AIR [2005] SC 286 [16].
27
B. WEEKND HAS NOT BECOME A CORPORATE DEBTOR FOR RSJ BANK.
(¶ 18.) ‘Corporate debtor’ refers to a corporate person who owes a debt to any person. 28
Moreover, guarantee becomes a debt as soon as the guarantee is invoked against it and a
guarantor ('corporate guarantor') becomes a ‘corporate debtor’ in terms of the Code.29
In the present case, RSJ Bank has not yet invoked the guarantee against the Weeknd. Thus, the
guarantee given by Weeknd has not become a ‘debt’. Hence, Weeknd has not become a
‘Corporate Debtor’ in the terms of the Code.
(¶ 19.) Therefore, it is humbly submitted that the RP/COC is rightful in denying the debt of
RSJ Bank as there is no financial debt.
IV. THE DIRECTORS OF WEEKND CAN BE HELD PERSONALLY LIABLE FOR FURNISHING
CURRENT ASSETS OF WEEKND AS SECURITY.
(¶ 20.) It is humbly submitted that the directors will be held liable for wrongful trading if they
did not exercise due diligence in minimising the potential loss to the creditors even if no
reasonable prospect of avoiding the commencement of a CIRP was present 30and has done such
transactions when the insolvency of corporate debtor was near. 31The transactions made under
wrongful trading also include keeping assets as a security for the loan of related parties 32at the
stage when insolvency may arise. 33
28
29
Ferro Alloys Corporations Ltd v Rural Electrification Corporation [2019] 148 CLA 159 [27].
30
31
Sumant Batra, Corporate Insolvency Law and Practice (1st edn, Eastern Book Company 2017) 541.
32
The Insolvency and Bankruptcy Code 2016, s 5(24)(i).
33
IDBI Bank Ltd v Jaypee Infratech Ltd CA No 26/2018 in Company Petition No (IB)77/AD/2017 [115];
UNCITRAL, Legislative Guide on Insolvency Law (1st edn, United Nations Publication 2005) 135.
(¶ 21.) In the present case, Weeknd was already in-debt of amount INR 3798 crores out of
which it has defaulted on a loan of INR 100 crore.34Further, in the year 2017, Weeknd could
not deliver any profit though, the market experienced its best profits in last
quarter.35Additionally, the company was not incurring sufficient profits from its ventures in
Russia. 36 Furthermore, the company has defaulted on payment of taxes and dues of Airports
Authority of India. 37 Thus it is evident that Weeknd was at the verge of insolvency and there
was no reasonable prospect to avoid the same.
(¶ 22.) Additionally, directors provided security on the current assets of the Weeknd in order
to furnish loan of Weeknd Productions which is its Wholly Owned Subsidiary. 38 Hence, the
directors kept on incurring liabilities instead of releasing some. Thus, the directors failed to
exercise due diligence by not taking proper care of the potential losses of the creditors.
(¶ 23.) Therefore, it is humbly submitted that the directors must be held personally liable for
keeping charge on current assets of Weeknd under § 66 of the Code.
V. MR. VIKAS CANNOT ENFORCE HIS CONTRACTUAL RIGHTS.
(¶ 24.) It is humbly submitted that a key feature of financial debt is its consideration for time
value of money. 39 When an applicant claims to be financial creditor then he will have to show
that debt is due which he has disbursed against the consideration for the time value of money. 40
34
35
36
37
38
39
Nikhil Mehta and Sons (HUF) v AMR Infrastructure Ltd 2017 SCC OnLine NCLAT 859.
40
Dr B V S Lakshmi v Geometrix Laser Solutions Pvt Ltd [2018] 142 CLA 321, [29].
‘Time value of money’ refers to as the price associated with the length of time that an investor
must wait until an investment matures or the related income is earned. 41
(¶ 25.) Further, Contractual rights of guarantor cannot be invoked in CIRP if the debt due is
not against consideration for time value of money. 42
(¶ 26.) Furthermore, when a financial creditor provides the corporate debtor, a debt it should
have a compensation for the time period for which it held the debt.43
(¶ 27.) In the present case, Mr. Vikas has paid the amount of INR 100 crore to Bank of
Dehradun discharging his obligation under contract of guarantee. However, there is no fixed
time period after which Weeknd will pay him back and also there is no future compensation
being paid to Mr. Vikas for holding the debt. Hence, there exists no ‘consideration for time
value of money’ in the claim of Mr. Vikas. Thus, Mr. Vikas is not a Financial Creditor.
(¶ 28.) Therefore, it is humbly submitted that the contractual rights of Mr. Vikas cannot be
enforced.
VI. MS. OLIVIA’S APPLICATION FOR RECOGNIZATION OF US VOLUNTARY BANKRUPTCY
PROCEEDING SHOULD BE ACCEPTED.
(¶ 29.) The insolvency proceeding initiated by AHSB in US is a Foreign Proceeding. 44 A
foreign proceeding can be recognized as a foreign main proceeding or a foreign non-main
proceeding. 45 Ms. Olivia’s application under Clause 1246 should be accepted as US proceeding
41
Bryan A Garner, Black’s Law Dictionary (9th edn, St Paul 2009) 1712.
42
Neeraj Bhatia v Davinder Ahluwalia and Ors [2018] 146 SCL 305 [19].
43
Dr BVS Lakshmi v Geometrix Laser Solutions Pvt Ltd [2018] 142 CLA 321[29].
44
Moot Proposition, asm c.
45
Re Fairfield Sentry Ltd 714 F 3d 127 (2013); Tannenbaum v Tannenbaum 234 App Div 660 (1931).
46
Draft Part Z on Cross Border Insolvency, cl 12.
is, first, a foreign main proceeding [A]; secondly, a foreign non- main proceeding [B] and lastly,
US proceeding is in accordance with public policy of India[C].
A. US PROCEEDINGS IS A FOREIGN MAIN PROCEEDING.
(¶ 30.) Foreign main proceeding takes place in the state having corporate debtor’s Center of
Main Interest [Hereinafter COMI].47 Pursuant to Clause 14(1) presumption in favour of
registered office being COMI is rebuttable when proven contrary. 48 The said presumption does
not apply if the registered office has been moved to another state within three months prior to
commencement of CIRP.49
(¶ 31.) Factors to determine COMI are location of majority of creditors, 50 and the applicable
territorial law if any dispute arises between debtor and creditor.51 These factors, that need not
be specifically inquired, 52 should be objective and apparent to prudent creditors.53 Company
law of the place of incorporation should be applicable throughout its recognition by other
member state.54
(¶ 32.) In the present case, with regard to the applicability of territorial law, the registered
office of AHSB was shifted from Malaysia to US in mid-2018,55 whereas the insolvency
47
Draft Part Z on Cross Border Insolvency, cl 15(2)(a); Re Bear Stearns High-Grade Structured Credit Strategies
389 BR 325 (2008).
48
Draft Part Z on Cross Border Insolvency, cl 14(1); In re Eurofood IFSC Ltd [2006] All ER 1078; Ministry of
Corporate Affairs, ‘Report of the Insolvency Law Committee on Cross Border Insolvency’ (October, 2018).
49
Draft Part Z on Cross Border Insolvency, cl 14(2).
50
Ministry of Corporate Affairs, ‘Report of the Insolvency Law Committee on Cross Border Insolvency’ (October,
2018) 31.
51
Re Bear Stearns (n 47), [23].
52
In Re Stanford International Bank Ltd and Ors [2011] Ch 33 [56].
53
Irish Bank Resolution Corp Ltd v Quinn [2012] NICh 1 [28]
54
In re Lee [2012] 472 BR 156 [32].
55
Clarification, ¶ 73.
petition was filed in May 2019, 56 thus surpassing the requirement of the look back period.57
Also the majority of creditors of AHSB are situated in the US. 58
(¶ 33.) Hence, both the essential factors are present in respect to the registered office in the
US. Therefore, the COMI of AHSB is situated in the US and the US proceeding should be
recognized as a foreign main proceeding under Draft Z.59
B. US PROCEEDING IS A FOREIGN NON-MAIN PROCEEDING.
(¶ 34.) Foreign non-main proceeding refers to the place where the debtor has an
establishment,60 which means any place of operations where the corporate debtor carries out a
non-transitory economic activity. 61 Presence of an asset together with minimal management of
the asset constitutes an establishment.62
(¶ 35.) In the present case, AHSB was established in 2015 in the US. 63 After relocation of its
registered office, time gap of more than three months is present. Certain assets are present in
US,64 and are managed since 2015. Hence, an establishment of AHSB is situated in the US and
therefore US proceedings is a foreign non-main proceeding under Draft Z65.
56
57
Draft Part Z on Cross Border Insolvency, cl 14(2).
58
59
Draft Part Z on Cross Border Insolvency, cl 14 r/w cl 15(2)(a).
60
Draft Part Z on Cross Border Insolvency, cl 2(f); Legend International Holdings Inc v Legend International
Holdings Inc [2016] VSC 308 [92]
61
Draft Part Z on Cross Border Insolvency, cl 2(c); In Re Interedi lSrl (C-396/09) [2011] ECR I-9939 [62]-[64].
62
Shierson v Vlieland-Boddy [2005] 1 WLR 3966.
63
64
65
Draft Part Z on Cross Border Insolvency, cl 2(c) r/w cl 15(2)(b).
C. RELOCATION OF AHSB’S REGISTERED OFFICE IS IN ACCORDANCE WITH PUBLIC
POLICY OF INDIA.
(¶ 36.) Forum Shopping is a bona fide attempt to restructure and so as to take advantage of a
juridical advantage is permissible.66 A debtor’s subjective reason for relocation has no bearing
on recognition.67 In the interest of public policy, the presumption becomes inapplicable in cases
where the corporate debtor has relocated its registered office to another State,68 within 3-month
period prior to the initiation of insolvency proceedings. 69 The Adjudicating Authority has the
duty to determine the same independently. 70
(¶ 37.) The relocation of registered office was done with the motive to help restructuring and
take advantage of expedited structure of law provided by US bankruptcy regime. 71
Additionally, the insolvency proceedings were requested after a time period of more than six
months. 72 Hence, relocation of AHSB’s registered office does not amount to forum shopping
and is also not in contradiction with the public policy of India.
(¶ 38.) Therefore, it is humbly submitted Ms. Olivia’s application for recognization of US
voluntary bankruptcy proceeding should be accepted.
VII. THERE CAN BE TWO CONCURRENT INSOLVENCY PROCEEDINGS IN DIFFERENT
JURISDICTIONS.
66
In Re Codere Finance (UK) Limited [2015] EWHC 3778 ; In Re Metinvest BV [2016] EWHC 79 (Ch).
67
In Re Creative Finance Ltd [2016] 543 BR 498.
68
European Union Council, Report on the Convention of Insolvency Proceedings (Law Com No 6500/96, 1996)
69
2018) 32.
70
Look Chan Ho, A Commentary on the UNCITRAL Model Law (vol 1, 4th edn, 2017) 616-18; UNCITRAL,
Legislative Guide on Insolvency LawModel Law onCross-Border Insolvency:The Judicial Perspective (1st edn,
United Nations Publication 2014) 81.
71
72
Clarification 73 r/w 82.
(¶ 39.) It is humbly submitted that Draft Z allows for multiple proceedings, in various
jurisdictions, to take place simultaneously by enabling coordination and cooperation.73
Prerequisite for a concurrent proceeding to initiate under the Code is recognition of a foreign
main proceeding and the same must be against the same corporate debtor. 74
(¶ 40.) In the present case, the majority of creditors of AHSB are present in the US,75 with
certain assets,76 implying that the creditors consider the US as COMI of AHSB. Hence, the US
proceeding is a foreign main proceeding. Further, after recognition of the US proceeding as
foreign main proceeding, a subsequent proceeding can be initiated under the Code against
AHSB. 77
(¶ 41.) Therefore, it is humbly submitted that there can be two concurrent proceedings in
different jurisdictions.
VIII. UPON ADMISSION OF CIRP THE INVOCATION OF PERSONAL GUARANTEE BY BANK
OF DEHRADUN IS LIABLE TO BE SET ASIDE.
(¶ 42.) It is humbly submitted that upon admission of CIRP the invocation of personal
guarantee by Bank of Dehradun is liable to be set aside as a preferential transaction under § 43
r/w § 44 of the Code. A corporate debtor shall be deemed to have given preference if there is a
transfer of property78 by a corporate debtor to a pre-existing creditor79 within a year prior to
73
2018) 44; UNCITRAL, Legislative Guide on Insolvency Law Model Law on Cross-Border Insolvency: The
Judicial Perspective (1st edn, United Nations Publication 2014).
74
Draft Part Z on Cross Border Insolvency, cl 24 r/w cl 25.
75
76
77
Draft Part on Cross Border Insolvency, cl 24.
78
The Insolvency and Bankruptcy Code 2016, s 43(2)(a).
79
Robertson v Grigg (1932) 47 CLR 257.
initiation of CIRP and the said transfer puts the creditor in beneficial position than it would
have been at the time of distribution of assets under § 5380 is considered as a preferential
transaction. 81 The term transfer 82 of property83 according to § 43 of the Code means any money
paid for the benefit of a creditor.84 The tribunal could set aside the preferential transaction.85
(¶ 43.) Further, the transaction made by a third party,86 on behalf of corporate debtor, who has
the right to be recouped by it can also be considered as preferential transaction. 87 Additionally,
the third party should be in close relation with corporate debtor and in a position to apprehend
that the corporate debtor could soon become insolvent. 88
(¶ 44.) In the present case, Mr. Vikas is a good friend of Mr. Hooda’s father, who is the
promoter of Weeknd. 89 The CIRP against Weeknd was initiated on 1st July 2019 90and the loan
was paid off by him at the end of the year 2018.91 Further, Mr. Vikas paid the amount on the
behalf of Weeknd while looking forward to get indemnified. 92
80
The Insolvency and Bankruptcy Code 2016, s 53.
81
82
83
84
Ashish Makhija, Insolvency and Bankruptcy Code of India (1st edn, Lexis Nexis 2018) 975.
85
86
Macks v Blacklaw & Shadforth Pty Ltd [1997] FCA 667.
87
Roy Goode, Principles of Corporate Insolvency Law (4thedn, Sweet & Maxwell 2011) 585.
88
D Baird and T Jackson, Cases, Problems, and Material on Bankruptcy (2nd edn, University Casebook Series
1990) 423.
89
90
91
92
(¶ 45.) Thus, Mr. Vikas was in close relation with Weeknd and he was in a position to
apprehend that Weeknd could soon become insolvent. Hence, the payment made by him to
Bank of Dehradun was to put the bank in a better position than it would have been at the time
of distribution of assets, if Weeknd had gone into liquidation. 93Thus, the transaction made by
Mr. Vikas should be considered as a preferential transaction.
(¶ 46.) Therefore, it is humbly submitted that upon admission of CIRP the invocation of
personal guarantee by Bank of Dehradun is liable to be set aside.
IX. MR. NARESH SINGHVI CAN BE ALLOWED TO PRESENT THE PLAN AS A SCHEME, IN
CASE THE CORPORATE DEBTOR GOES INTO LIQUIDATION.
(¶ 47.) It is humbly submitted that Mr. Naresh Singhvi can be allowed to present the plan as a
Scheme, in case the Corporate Debtor goes into liquidation as the scheme of compromise or
arrangement are presented under § 230 of the Companies Act, 2013.94 The scheme can be
presented only by the creditor or member of that company or a liquidator in the case of a
company being wound up.95 Further, in the case of a company limited by shares, 96 the terms
'member' and 'shareholder' are synonymous,97 and there can be no membership except through
the medium of shareholding. 98
93
94
The Companies Act 2013, s 230.
95
SK Gupta and Ors v KP Jain and Ors [1979] 49 Comp Cas 342 (SC) [12]; In Re Wearwell Cycle Co (I) Ltd
[1998] 94 Comp Cas723 (Delhi); NK Mohapatra v State of Orissa[1999] 96 Comp Cas 49(Orissa); Kashinath
Dikshit v Surgicals Pharmaceuticals Co (Mysore) 1 [2002] 40 SCL 921 (Kar) [19].
96
Killick Nixon Limited and Ors v Bank of India and Ors [1985] 57 Comp Cas 831(Bom) [8].
97
Balkrishan Gupta And Ors v Swadeshi Polytex Ltd And Anr [1985] 758 Comp Cas 563 (SC) [12]; M/S Howrah
Trading Co Ltd v Commissioner of Income Tax, Central Calcutta [1959] 29 Comp Case 282 (SC).
98
A Ramaiya, Guide to The Companies Act (18th edn, LexisNexis 2015) 123; C M Schmitthoff, M Kay and G K
Morse, Palmer's Company Law (1st vol, 22nd edn, Stevens & Sons Ltd 1976)527.
(¶ 48.) Further, it has been held by NCLAT that the Liquidator is required to proceed in
accordance with law and will take steps in terms of § 230 of the Companies Act, 2013.99
(¶ 49.) In the present case, Weeknd is a private limited company100 in which 90% of shares are
held by Mr. Hooda and the rest 10% is with the company Teekhamasala Pvt. Ltd.101 Thus, Mr.
Naresh Singhvi does not hold any shares in the company Weeknd. Hence, Mr. Naresh Singhvi
is not a member of the company Weeknd. Further, He is not a creditor of Weeknd. Hence, He
cannot present scheme under § 230 of the Companies Act, 2013.
(¶ 50.) Therefore, it is humbly submitted that Mr. Naresh Singhvi cannot be allowed to present
the plan as a scheme in case the Corporate Debtor goes into liquidation.
99
S C Sekaran v Amit Gupta & Ors[2019] 3 Comp LJ 178 [8]; Y Shivram Prasad v S Dhanapal [2019] 153 SCL
153 [19].
100
101
[PRAYER] Page | XVIII
PRAYER
Wherefore in light of the facts stated, issues raised, arguments advanced and authorities cited,
Counsel for respondents humbly prayed that this Hon’ble Tribunal may be pleased to adjudge
and declare that:
1. Application filed by Trade Union to initiate Corporate Insolvency Resolution Process
of Weeknd Airlines Pvt. Ltd. is not admissible.
2. The claim of Kailash Bank and Bank of Dehradun should not be admitted.
3. The RP/COC is rightful in denying financial debt of RSJ Bank.
4. The directors of Weeknd are personally liable for furnishing current assets of Weeknd
as security.
5. Mr. Vikas cannot enforce his contractual right.
6. The US voluntary Bankruptcy proceeding is Recognised.
7. Concurrent Proceedings should be allowed.
8. The personal guarantee invocated by Bank of Dehradun is set aside.
9. Mr. Naresh Singhvi is not allowed to present the scheme.
The Court being satisfied may also make any such order as it may deem fit in the light of
Justice, Equity and Good conscience.
All of which is most humbly prayed
ON BEHALF OF RESPONDENTS
PLACE: SD/-
DATE: COUNSELS FOR THE RESPONDENTS

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TEAM CODE – TC 06

II SURANA & SURANA AND UPES SCHOOL OF LAW

NATIONAL INSOLVENCY LAW MOOT COURT COMPETITION, 2019

THE NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI

TRADE UNION v. WEEKND AIRLINE PVT LTD

INDIAN CREDITORS v. MS. OLIVIA

NARESH SINGHVI v. SURESH RATH, RESOLUTION PROFESSIONAL

MEMORIAL FOR RESPONDENTS

LIST OF ABBREVIATIONS ........................................................................................... III

TABLE OF AUTHORITIES ......................................................................................... VIII

STATEMENT OF JURISDICTION ............................................................................. XIV

STATEMENT OF FACTS ..............................................................................................XV

STATEMENT OF ISSUES ............................................................................................ XVI

SUMMARY OF ARGUMENTS ...................................................................................XVII

ARGUMENTS ADVANCED ............................................................................................. 1

I. THE APPLICATION FILED UNDER INSOLVENCY AND BANKRUPTCY

CODE, 2016 IS NOT ADMISSIBLE .............................................................................. 1

A. THE APPLICATION IS NOT ADMISSIBLE UNDER § 7 OF THE CODE. ................................ 1

i. Pilots are not allottee as prescribed under RERA. ............................................... 1

B. THE APPLICATION IS NOT ADMISSIBLE UNDER § 9 OF THE CODE. ................................ 2

i. Weeknd does not owe any operational debt to the pilots....................................... 2

II. THE CLAIMS OF KAILASH BANK AND BANK OF DEHRADUN CANNOT

BE ADMITTED BY THE RP/COC. .............................................................................. 4

A. WEEKND AND MR. HOODA ARE SEPARATE LEGAL ENTITIES. ...................................... 4

III. THE RP/COC IS RIGHTFUL IN DENYING FINANCIAL DEBT OF RSJ

A. ACCEPTANCE OF RSJ BANK’S CLAIM WILL AMOUNT TO ALTERATION OF CONTRACTUAL

IV. THE DIRECTORS OF WEEKND CAN BE HELD PERSONALLY LIABLE

FOR FURNISHING CURRENT ASSETS OF WEEKND AS SECURITY. ................ 6

V. MR. VIKAS CANNOT ENFORCE HIS CONTRACTUAL RIGHTS. ................ 7

VI. MS. OLIVIA’S APPLICATION FOR RECOGNIZATION OF US VOLUNTARY

BANKRUPTCY PROCEEDING SHOULD BE ACCEPTED. ..................................... 8

A. US PROCEEDINGS IS A FOREIGN MAIN PROCEEDING................................................... 9

B. US PROCEEDING IS A FOREIGN NON-MAIN PROCEEDING. .......................................... 10

C. RELOCATION OF AHSB’S REGISTERED OFFICE IS IN ACCORDANCE WITH PUBLIC POLICY

VII. THERE CAN BE TWO CONCURRENT INSOLVENCY PROCEEDINGS IN

DIFFERENT JURISDICTIONS. ................................................................................. 11

VIII. UPON ADMISSION OF CIRP THE INVOCATION OF PERSONAL

GUARANTEE BY BANK OF DEHRADUN IS LIABLE TO BE SET ASIDE.......... 12

IX. MR. NARESH SINGHVI CAN BE ALLOWED TO PRESENT THE PLAN AS A

SCHEME, IN CASE THE CORPORATE DEBTOR GOES INTO

PRAYER ..................................................................................................................... XVIII

AIR All India Reporter

SCALE Supreme Court Almanac

CIRP Corporate Insolvency Resolution Process

NCLAT National Company Law Appellate Tribunal

NCLT National Company Law Tribunal

SCC Supreme Court Cases

TaxPub Tax Publication

CLJ Company Law Journal

UNCITRAL United States Commission on International Trade Law

r/w read with

ILR Insolvency Law Report

SCALE Supreme Court Almanac

CLA Corporate Law Advisor

CompCas Company Cases

SCL SEBI and Corporate Laws

SCR Supreme Court Reporter

UKSC Supreme Court of United Kingdom

UKPC United Kingdom Privy Council Decisions

DLT Delhi Law Times

SDNY Southern District New York

VSC Supreme Court of Victoria