1. SANJAY D. KAKADE V. HDFC VENTURES TRUSTEE COMPANY LTD. AND OTHERS

Citation: Sanjay D. Kakade V. HDFC Ventures Trustee Company Ltd. and Others, Company Appeal (AT) (Insolvency) No. 481 of 2023, NCLAT Delhi, decided by Hon’ble Justice Ashok Bhushan and Barun Mitra, dated 24.11.2023.

Ratio: Raising of amount by the Company through Share Subscription-cum-Shareholders Agreement was a commercial borrowing, since the said transaction has direct effect with the business, which was carried out by the Corporate Debtor,

2. DESANA IMPEX LTD. V. BRICK AND MORTAR REALITY PVT. LTD.

Citation: Desana Impex Ltd. V. Brick and Mortar Reality Pvt. Ltd., Company Petition (IB) No. 342/KB/2022, NCLT Kolkata, decided by Hon’ble Smt. Bidisha Banerjee, Member (Judicial) and Shri Arvind Devanathan, Member (Technical), dated 21.11.2023.

Ratio: An explicit written agreement of loan is a mandatory instrument for the Financial Creditor, being a NBFC.

3. HARISH KUMAR V. NATIONAL FINANCIAL REPORTING AUTHORITY

Citation: Harish Kumar V. National Financial Reporting Authority, Company Appeal (At) No. 68 Of 2023, NCLAT Delhi, decided by Hon’ble justice Rakesh Kumar Jain, Member (Judicial) and Mr. Naresh Salecha, Member (Technical), dated 13.04.2023. 

Ratio: The Hon’ble NCLAT, New Delhi upheld the primacy of the National Financial Reporting Authority (NFRA). NFRA has superior authority over ICAI on oversight of auditors and in disciplinary matters. Further, NFRA has retrospective jurisdiction over offences by CAs for period prior to formation of NFRA or coming into force relevant provision of Section 132 of Companies Act 2013.

4. MANMOHAN SINGH V. ARJUN UPPAL

Citation: Manmohan Singh V. Arjun Uppal, RC. REV. 117/2016, High Court of New Delhi, decided by Hon’ble Justice Jasmeet Singh, dated 29.11.2023.

Ratio: A Tenant was directed to vacate the tenanted premises under section 14(1)(e) of the Delhi Rent Control Act, 1958 (DRC Act). However, the Tenant approached the High Court, contending that the Landlord was already granted possession of 4813 sq. ft. of the properties, and therefore their need for the Tenanted premises was satisfied. Held, Landlords cannot be deprived of the beneficial enjoyment of their property. Further, the Court is not to sit in the arm chair of the landlords to dictate as to how the property should be utilized. It is the sole discretion of the landlords to get all the tenanted premises vacated and use as per their need.

5. ELDECO HOUSING AND INDUSTRIES LTD. V. ASHOK VIDYARTHI AND ORS.

Citation: Eldeco Housing And Industries Ltd. V. Ashok Vidyarthi And Ors., Special Leave Petition (C) No. 19465 of 2021, Hon’ble Supreme Court of India, decided by Hon’ble Justice Vikram Nath and Rajesh Bindal, dated 30.11.2023.

Ratio: In the present case, an application for rejection of plaint was allowed by trail court. The rejection was overruled by the Hon’ble High Court at Allahabad. The Hon’ble Supreme Court upheld the holding of the High Court on the grounds that the application was granted based on documents attached with the application. Held, Courts are only authorised to examine the averments in the plaint and cannot examine the merits or evidence of disputed facts in issue while deciding for rejection of a plaint

6. AKASH ELECTROTEK ENGINEERS PVT. LTD. V. NCC LTD.

Citation: Akash Electrotek Engineers Pvt. Ltd. V. Ncc Ltd., Company Petition IB/66/2022, NCLT Hyderabad, decided by Hon’ble Shri. Rajeev Bhardwaj, Member (J) and Shri. Sanjay Puri, Member (T), dated 23.11.2023.  

Ratio: Held, Airport Authority of India being a statutory body created under Airport Authority of India Act, 1944, does not come under the definition of ‘Corporate Person’ under IBC and thus no petition under IBC is maintainable against the, Further, A single application against two different Corporate Debtors is not maintainable.

7. CHIRAGSALA SALES PVT. LTD. V. VAISHNO DEVI TRADERS PVT. LTD.

Citation: Chiragsala Sales Pvt. Ltd. V. Vaishno Devi Traders Pvt. Ltd., CP (IB)/33/7/GB/2022, NCLT Guwahati, decided by Hon’ble Member (Judicial) Shri H.V. Subba Rao and Hon’ble Member (Technical) Shri Satya Ranjan Prasad, dated 30.11.2023.

Ratio: Held, Amount given by Financial Creditor to Corporate Debtor by way of an investment for a Joint Venture does not fall within the definition of Financial Debt under IBC. In the present case, the parties entered into MOU for joint development of land and it was held that there was non financial debt on part of the corporate debtor.

8. COX AND KINGS LTD. V. SAP INDIA PVT LTD. AND ANR.

Citation: Cox And Kings Ltd. V. Sap India Pvt Ltd. And Anr., Arbitration Petition (Civil) No. 38 of 2020, Hon’ble Supreme Court of India, decided by Hon’ble CJI Dr D.Y. Chandrachud, Hrishikesh Roy, J.B. Pardiwala, Manoj Misra and P.S. Narasimha, dated 06.12.2023.

Ratio: Held, an arbitration agreement can be applicable to a non-signatory to the agreement if they are part of the same group of companies if a tight corporate group structure constituting a single economic reality exists. The doctrine shall be applied cautiously on a case-by-case basis.

9. HARI BABU THOTA V. SHREE AASHRAYA INFRA-CON LTD.

Citation: Hari Babu Thota V. Shree Aashraya Infra-Con Ltd., Civil Appeal No. 4422/2023, Hon’ble Supreme Court of India, decided by Hon’ble Justice Sanjay Kishan Kaul and Sudhanshu Dhulia, dated 29.11.2023.

Ratio: In case of bid by promoter of corporate debtor during liquidation process, An MSME certificate is required to be in place as on the date of bid submission (and not CIRP commencement) in order to overcome disqualification of promoter in accordance with Section 240A of the IBC.

10. SANJAY KUMAR AGARWAL V. STATE TAX OFFICER AND ANR.

Citation: Sanjay Kumar Agarwal V. State Tax Officer and Anr., Review Petition (Civil) No. 1620 Of 2023 In   Civil Appeal No. 1661 Of 2020, Hon’ble Supreme Court of India, decided by Hon’ble Justice A.S. Bopanna and Bela M. Trivedi, dated 31.10.2023.

Ratio: Held, the State is a secured creditor under the Gujarat Value Added Tax, 2003 and accordingly the debts owed to the State, being a secured creditor are to rank equally with other specified debts including debts of workman’s dues.

11. PIRAMAL ENTERPRISES LTD. V. KAY JAY LEASING

Citation: Piramal Enterprises Ltd. V. Kay Jay Leasing, IA-1547/2023  in  IB-359(ND)/2021, NCLT Delhi, decided by Hon’ble Shri Bachu Venkat Balaram Das and Shri Atul Chaturvedi, decided on 05.12.2023

Ratio: In the present case, the Petition under Section 7 IBC was filed against corporate debtor. The date of default was falling within Covid Exemption period under Section 10A of the IBC, however, the default arose before and after the exemption period as well. Held, The amendment of pleadings (including date of default) in an application filed under Section 7 of IBC can be done at any stage of the matter.

12. K.N. ABDUL GAFOOR V. KASMISONS BUILDERS PVT. LTD.

Citation: K.N. Abdul Gafoor V. Kasmisons Builders Pvt. Ltd., OP(C) NO. 2251 OF 2023, High Court of Kerala, decided by Hon’ble Justice C. Jayachandran, decided on 28.11.2023.

Ratio: Held, NCLT can only direct the Company to file its objections along with the statement of affairs when a petition for winding up of the Company before the Tribunal had been filed by any person other than the Company itself.

13. R.P. INFOSYSTEMS PVT. LTD. V. REDINGTON (INDIA) LTD.

Citation: R.P. Infosystems Pvt. Ltd. V. Redington (India) Ltd., AP 626 of 2018, High Court of Kolkata, decided by Hon’ble Justice Shekhar B. Saraf, dated 16.11.2023.

Ratio: Held, arbitration clause included in a tax invoice becomes binding when the parties accept and act upon the terms and conditions specified therein provided the terms, including the arbitration clause, are prominently and clearly displayed in the invoice (if printed on reverse side, there must be a declaration), the buyer consents to arbitration clause and doesn’t raise objection within reasonable period.

14. INTERPLAY BETWEEN ARBITRATION AGREEMENTS UNDER THE ARBITRATION AND CONCILIATION ACT 1996 AND THE INDIAN STAMP ACT 1899

Citation: Interplay Between Arbitration Agreements Under The Arbitration And Conciliation Act 1996 And The Indian Stamp Act 1899, Curative Petition (C) No. 44 of 2023 in Review Petition (C) No. 704 of 2021 in  Civil Appeal No. 1599 of 2020, Hon’ble Supreme Court of India, decided by Hon’ble CJI Dr Dhananjaya Y Chandrachud, dated 13.12.2023

Ratio: Held, Agreements which are not stamped or are inadequately stamped are inadmissible in evidence under Section 35 of the Stamp Act. Such agreements are not rendered void or void ab initio or unenforceable and are curable. Objection regarding stamp duty shall not be raised under Section 8 or 11 of the Arbitration and Conciliation Act at the stage of appointment of arbitrator but fall within the ambit of arbitrator to decide.

15. REAL ESTATE REGULATORY AUTHORITY V. D.B. CORP LTD.

Citation: Real Estate Regulatory Authority V. D.B. Corp Ltd., Company Appeal (AT) (Insolvency) No.1172-1173 of 2022, NCLAT Delhi, decided by Hon’ble Justice Ashok Bhushan and Barun Mitra, dated 08.12.2023.

Ratio: In the present case, the advertiser for builder filed application under Section 9 IBC. The agreement with the builder included a cash compensation and barter i.e. allotment of apartment. In the meantime, RERA had directed refund of amounts to allottees of apartments due to complaints. Held, RERA has locus to challenge CIRP initiation Order in Real Estate Insolvency in appeal as “aggrieved person” under Sec. 61 of IBC before NCLAT. Further, CIRP cannot be initiated under Sec. 9 of IBC on the basis of Barter Agreement/Transactions.

16. JAI NARAYAN GUPTA V. RADHASIRIYA PROPERTIES PVT. LTD.

Citation: Jai Narayan Gupta V. Radhasiriya Properties Pvt. Ltd., Company Appeal (AT) (Insolvency) No.1473 of 2023, NCLAT Delhi, decided by Hon’ble Justice Ashok Bhushan and Barun Mitra, dated 08.12.2023.

Ratio: Held, since liquidation fee under Section 34(8) and 34(9) are to be charged from value of liquidation estate assets, No Liquidator’s fee can be charged from Scheme Proponent, who has submitted Scheme of Compromise and Arrangement under Sec. 230 of Companies Act, 2013 

17. VIJAY KUMAR SINGHANIA V. BANK OF BARODA & ANR

Citation: Vijay Kumar Singhania V. Bank of Baroda & Anr., Company Appeal (AT) (Insolvency) No.1058 of 2023, NCLAT Delhi, decided by Hon’ble Justice Ashok Bhushan, Barun Mitra and Arun Baroka, dated 13.12.2023.

Ratio: Record of default is not the only document which has evidence of default by financial creditor. The filing of such record of default is not mandatory in order to determine maintainability of application under Section 7, IBC.

19. SUSHMA SHIVKUMAR DAGA & ANR. V. MADHURKUMAR RAMKRISHNAJI

Citation: Sushma Shivkumar Daga & Anr. V. Madhurkumar Ramkrishnaji, Civil Appeal No.1854 of 2023, Hon’ble Supreme Court of India, decided by Hon’ble Justice Aniruddha Bose and Sudhanshu Dhulia, dated 15.12.2023.

Ratio: Held, the cancellation of deed is an an arbitrable matter as the same is an action in personam i.e. relates to the deed itself and not a action in rem.

21. SHAKTI YEZDANI & ANR. V. JAYANAND JAYANT SALGAONKAR & ORS.

Citation: Shakti Yezdani & Anr. V. Jayanand Jayant Salgaonkar & Ors., Civil Appeal No. 7107 of 2017, Hon’ble Supreme Court of India, decided by Hon’ble Justice Hrishikesh Roy and Pankaj Mithal, dated 14.12.2023.

Ratio: Held, in the present case it was held that the nomination process under Companies Act doesn’t override succession laws. In the present case, despite nominee of shares being different in will and record of shares under Section 109A, it was held that the shares shall vest to the legal heirs as opposed to the nominees.

22. MUKESH KUMAR JAIN V. NAVIN KUMAR UPADHYAY & ANR.

Citation: Mukesh Kumar Jain V. Navin Kumar Upadhyay & Anr., Company Appeal (AT) (Insolvency) No. 930-931 of 2023, NCLAT Delhi, decided by Hon’ble Justice Ashok Bhushan and Barun Mitra, dated 19.12.2023

Ratio: In the event that CIRP is stayed, the management of the corporate debtor shall not be handed back to the suspended board of directors and ex-management but shall remain with the resolution professional. The resolution professional cannot take any more steps in the CIRP till stayed is lifted.

23. V. GANESAN V. PRUDENT ARC LIMITED

Citation: V. Ganesan V. Prudent Arc Limited, Company Appeal (AT) (CH) (Ins) No. 396/2023, NCLAT Chennai, decided by Hon’ble Justice Rakesh Kumar Jain and Shreesha Merla, dated 07.12.2023.

Ratio: Held, time spent in Writ Petition before High Court against NCLT order and thereafter in SLP before Supreme Court cannot be excluded in calculating limitation period while file petition under IBC.

24. METAL ENGINEERING AND FORGING COMPANY V. CENTRAL WAREHOUSING CORPORATION

Citation: Metal Engineering and Forging Company V. Central Warehousing Corporation, FAO (COMM) No. 5/2023, High Court of Delhi, decided by Hon’ble Justice Vibhu Bakhru and Amit Mahajan, dated 22.11.2023.

Ratio: The damages for loss of goodwill cannot be determined with mathematical precision. The person claiming loss of goodwill merely needs to prove through evidence that there was such loss.

25. DILIP B. JIWRAJKA V. UOI

Citation: Dilip B. Jiwrajka V. UOI, Writ Petition (Civil) No. 1281 of 2021, Hon’ble Supreme Court of India, decided by Hon’ble CJI Dr D.Y. Chandrachud, and Hon’ble Justice J.B. Pardiwala and Manoj Misra, dated 9.11.2023.

Ratio: The resolution professional only performs a “facilitative task” of collating information/documents and a full-fledged judicial examination of the existence of debt and default is not required at this stage. Further, the resolution professional is not conferred with any adjudicatory function whatsoever and the recommendation of the resolution professional is not binding on a creditor or debtor or the adjudicating authority. In the context of a CIRP, a resolution professional is conferred with vital roles including but not limited to taking over the management of the affairs of a corporate debtor and taking into custody and control the assets and properties of a corporate debtor.

26. POPULAR MOTOR CORPORATION V. STATE OF KERALA

Citation: Popular Motor Corporation V. State of Kerala, Crl.A. No. 1412 of 2011, High Court of Kerala, decided by Hon’ble Justice C.S. Dias, dated 17.10.2023.

Ratio: Held, power of attorney holder can provide evidence on behalf of signatory of cheque in cheque dishonour case provided he has knowledge of the facts and circumstances of the case.

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