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Companies Act, 2013 are limited to the Companies Act, 2013 and not to the Namdeo Ramchandra Patil & Anr. Vs. Vishal Ghisulal Jain & Anr.
proceedings under the Code. [Company Appeal (AT) (Insolvency) No. 821 of 202]
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Ocean Deity Investment Holdings Ltd. Vs. Suraksha Asset units to the landowners, by virtue of arrangement between them and the
Reconstruction Ltd. [Company Appeal (AT) (Insolvency) No. 795 of GHYHORSHU IDOOV ZLWKLQ WKH GHÀQLWLRQ RI ¶ÀQDQFLDO GHEW·" 7KH 1&/$7 KHOG
2021 & I.A. No. 1332 of 2022] WKDW WKH SURYLVLRQ RI VHFWLRQ I OD\V D SUH FRQGLWLRQ IRU ¶ÀQDQFLDO GHEW·
The order of admission passed by AA was challenged before the NCLAT on that is disbursement against the time value of money and when any amount
the grounds of debt being collusive in nature. The NCLAT found that in view is raised from an allotment under real estate, such transaction is covered
of the overwhelming evidence and conclusion by statutory bodies which under section 5(8)(f). The pre-condition for application of explanation (i) of
DUH LQGHSHQGHQW DJHQFLHV WKH ÀQDQFLDO WUDQVDFWLRQV KDYH WR EH H[DPLQHG section 5(8)(f) is raising of an amount from allottee. In the present case, no
on the touchstone of the ratio laid down by the SC in Phoenix ARC Private amount has been raised from the landowners/FCs. Hence, it does not make
Limited v. Spade Financial Services Ltd. & Ors., (2021) 3 SCC 475, wherein WKH SUHVHQW WUDQVDFWLRQ RI DOORWPHQW RI ÁDWV DQG FRPPHUFLDO XQLWV D ¶ÀQDQFLDO
debt’ within the meaning of section 5(8)(f) of the Code.
the SC has observed that ‘collusive transaction’ does not lead to a creation
RI ¶ÀQDQFLDO GHEW· XQGHU VHFWLRQ RI WKH &RGH 7KH 1&/$7 IRXQG WKDW
the subject commercial transactions were collusive in nature and do not fall Prasanth Chandra Rath & Ors Vs. Surya Kanta Satapathy and Ors.
ZLWKLQ WKH DPELW RI WKH GHÀQLWLRQ RI ¶ÀQDQFLDO GHEW· DQG WKHUHIRUH 6XUDNVKD [Company Appeal (AT) (Insolvency) No. 869 of 2022 with Company
WKH $VVLJQHH FDQQRW EH WHUPHG DV D ¶)&· DV GHÀQHG XQGHU VHFWLRQ ,W Appeal (AT) (Insolvency) No. 850 of 2022]
6XVSHQGHG GLUHFWRUV RI WKH &' ÀOHG DQ DSSHDO DJDLQVW WKH RUGHU RI $$ WKDW
observed that – “The chequered history of the loan transactions and collusive
held them responsible for the fraudulent and undervalued transactions
arrangements indulged by Yes Bank demonstrate that the Term Loans disbursed
in the name of Mack Star is an ‘eye-wash’ and Yes Bank has disbursed these under section 66 of the Code. The appellants contended that the application
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loans with an ulterior motive. Having observed so, we hold that the Assignment 35A of the CIRP Regulations. Relying on the SC decision in Surendra Trading
to Suraksha is not a bona fide one, peculiar to the facts of the attendant case and Company v. Juggilal Kamlapat Jute Mills Company Limited and Ors., the NCLAT
the loan amounts do not satisfy the essential requisites of a ‘Financial Debt’ as held that regulation 35A of the CIRP Regulations is not mandatory and the
envisaged under the Code. This Tribunal observed that the fundamental scope & requirement for approaching the AA for appropriate relief on or before
objective of IBC is ‘Resolution’ and ‘Maximization of Assets’ and not ‘Recovery’ of
th
135 day of the ICD is only directory. The NCLAT noted that the delay
loans which do not strictly fall within the definition of ‘Financial Debt’ as defined
was for various reasons like the CIRP having been stalled on the ground
under Section 5(8) of the Code”.
of the appellants’ entering into one-time settlement (OTS) with one of the
creditors, lack of cooperation by the suspended directors, delay on the part
Punjab National Bank Vs. Supriyo Kumar Chaudhuri & Ors.
of the CD to furnish requisite documents/registers to the transaction auditor
[Company Appeal (AT) (Insolvency) No. 657 of 2020]
and COVID-19 pandemic.
The NCLAT considered as to whether margin money deposited by way of
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and whether this margin money can be appropriated by the bank during
the period of moratorium on the ground that it does not form a part of Infinity Infotech Parks Limited Vs. Electroparts (India) Private
WKH DVVHWV RI WKH &'" /& $JUHHPHQWV LQ WKLV FDVH VSHFLÀHG WKDW WKH JRRGV Limited & Anr. [I.A (IBC) No.907 /KB/2021 in C.P. (IB) No. 140/
and services received by way of the LC transactions would be ‘security’ KB/2021]
for the whole LC amount including margin money. It was observed that LC $Q LQWHUORFXWRU\ DSSOLFDWLRQ ZDV ÀOHG E\ WKH VKDUHKROGHU RI WKH &' DJDLQVW
is akin to a contract of guarantee, as it is a contingent liability of the CD the FC for obtaining the order of admission on the basis of fraudulent
ZKLFK JHWV FU\VWDOOL]HG RQ WKH KDSSHQLQJ RI D IXWXUH HYHQW ,W ZDV IXUWKHU DQG PDQXIDFWXUHG GRFXPHQWV IRU D ÀFWLWLRXV DQG LPDJLQDU\ WUDQVDFWLRQ LQ
REVHUYHG WKDW PDUJLQ PRQH\ KDV WKH FKDUDFWHU RI WKH 7UXVW IRU WKH EHQHÀW collusion with unknown third parties claiming to represent the CD without
RI WKH EHQHÀFLDU\ DV ORQJ DV WKH /& LV DOLYH DQG WKH VDPH FDQQRW DPRXQW WR any authority. Besides, the admission was on the basis of default date being
an asset of the CD. The NCLAT held that margin money can in no manner December 15, 2020 which is directly hit by section 10A of the Code. The
be said to be a ‘security interest’ under section 3(31) of the Code, and the AA observed that FC and the CD had obtained orders of CIRP fraudulently
banks having appropriated the said money during the period of moratorium DQG LQ FRPSOLFLW\ ZLWK HDFK RWKHU E\ ÀOLQJ D FROOXVLYH SHWLWLRQ DQG ODWHU RQ
LV MXVWLÀHG DV WKH DPRXQW LV QRW DQ DVVHW RI WKH &' settled the matter by payment of ` 30 lakh through cheques, although given
on behalf of the CD by some unknown person, were not encashed by the
Reliance Commercial Finance Ltd. Vs. Darode Jog Builder Pvt. Ltd. FC. In view of the glaringly fraudulent actions committed by FC and CD
thereby committed fraud on the Tribunal in terms of section 65 of the Code,
[Company Appeal (AT) (Insolvency) No. 1005 of 2022]
the AA imposed penalty of ` 50 lakh on FC and terminated the CIRP. Further
The AA allowed the request of the CD to pay the debt of FC within 45 days the matter was referred to the Central Government.
and has also granted liberty to the FC to continue with section 7 application
if the amount is not paid within 45 days. FC challenged this order as it had Yadubir Singh Sajwan & Ors. Vs. M/s. Som Resorts Private Limited
expressed its unwillingness to settle the matter and the course adopted by
[Company Petition No. (IB)-67(ND)/2022]
the AA is impermissible. The NCLAT dismissed the appeal of the FC. It held
In this real estate project case, petitioners deposited the money with the
that the AA has only given an opportunity to the CD to deposit the entire
GHIDXOWHG DPRXQW IRU ZKLFK VHFWLRQ DSSOLFDWLRQ ZDV ÀOHG ZLWKLQ GD\V marketing agency (also a corporate entity) of CD on the strength of a builder
buyer agreement whereby the home buyers to be given possession of the
with liberty, reserved to the FC to revive the section 7 application in event units within 36 months from the date of commencement of the construction
the amount is not deposited. It observed that – “In event, in consequence of the project. However, CD neither delivered the possession of the units nor
of the Order of the Adjudicating Authority, the Corporate Debtor deposits the refunded the money deposited by the home buyers with marketing agency
entire defaulted amount whether still the Adjudicating Authority was required of CD. Subsequently, a memorandum of settlement was executed between
to necessarily admit the Section 7 Application. The answer would be obviously
the CD, its marketing agency and the homebuyers, on the assurance of the
no. When the Corporate Debtor has complied to deposit the entire defaulted CD to construct the project within 18 months from the date of handing
amount of the Financial Creditor as permitted by the Adjudicating Authority, no RYHU RI WKH SURSHUW\ E\ WKH RIÀFLDO OLTXLGDWRU DQG LW ZDV DJUHHG WR UHIXQG WKH
purpose and occasion shall survive to still proceed with the Insolvency Resolution entire amount along with an interest to the home buyers in case of failure to
of the Corporate Debtor”. complete the project.
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