Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Law Appellate Tribunal, New Delhi: The 3-Member Bench of Justice Bansi Lal Bhat (Acting Chairperson), V.P. Singh, Member (Technical) and Shreesha Merla, Member (Technical), rejected the appeal filed by the Operational Creditor against the order of NCLT, after finding a need for ‘further investigation’ in the case.

The Appellant (Operational Creditor) and the Respondent (Corporate Debtor) entered into a Business Transfer Agreement (BTA) dated 7 April 2018 for the transfer of undertaking on a Slump Sale basis under Section 2(42-C) of the Income Tax Act, 1961 at a lump sum amount of Rs 123 Crores. The appellant contended that the Corporate Debtor had only transferred a sum of Rs 65 Crores and the remaining debt of Rs 58 Crores was unpaid.

The Appellant contended that after the satisfaction of ‘condition precedent’ relating to transfer, a compliance notice was submitted to the Corporate Debtor on 4 June 2018, which was acknowledged by the Corporate Debtor. It was further submitted, the sale was consummated and the possession of Undertaking was handed over by the Operational Creditor to the Corporate Debtor. Demand for payment was regularly communicated to the debtor but no payment was made. He also contended that the NCLT erred in deciding the judgement by not appreciating the facts and correct perspective of law.

The Respondent contended that the impugned appeal was premised on the suppression of facts and information, misrepresentation and gross misconstruction of the provision of the business transfer agreement. They further argued that it had replied to the demand notices and the payment of outstanding debt was made into 3 Tranche Payments as more particularly specified in the BTA. They also argued that post slump sale transaction was under the scope of IBC proceedings and in reply to the demand notice the corporate Debtor raised the issue of pre-existing dispute.

The Tribunal relied on the principle of ‘pre-existence’ of dispute as interpreted in the case of Mobilox Innovations (P) Ltd. v. Kirusa Software (P) Ltd., (2018) 1 SCC 353. The Court said that “all that the Adjudicating Authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the “dispute” is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster”. After examining the documents supplied by both the parties, the Tribunal found that issues had been raised by the corporate debtor before the receipt of demand notices which proved ‘pre-existence’ of dispute and there was a plausible contention in the defence raised by the corporate debtor which required further investigation. Therefore, the appeal was rejected and no substance was found in the appeal. [Allied Silica Limited v. Tata Chemicals Ltd.,  2020 SCC OnLine NCLAT 613, decided on 11-08-2020].

Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Law Appellate Tribunal (NCLAT): A Bench of S.J. Mukhopadhaya, Chairperson and Justice A.I.S Cheema, Member (Judicial) and Kanthi Narahari, Member (Technical) upheld the impugned decision whereby the appellant’s (Operational Creditor’s) application under Section 9 of the Insolvency and Bankruptcy Code, 2016, filed against the respondent (Corporate Debtor) was rejected.

Operational Creditor’s case was that despite repeated requests, the Corporate Debtor failed to make payments. Per contra, the Corporate Debtor submitted that it was willing to pay the entire amount subject to the condition that the Operational Creditor gets himself registered under the Goods and Services Tax, 2017. The Corporate Debtor also offered a demand draft to the Operational Creditor, which he refused to accept.

Aditya Diwan, Arpit Marwah and Karan Nagpal, Advocates appeared for the Operational Creditor. Per contra, the Corporate Debtor was represented by Y. Suryanarayana, Advocate.

On considering the facts and circumstances, the Appellate Tribunal was of the view that the Operational Creditor initiated the Corporate Insolvency Resolution Process (“CIRP”) with fraudulent and malicious intent for any purpose other than the resolution of insolvency or liquidation and therefore it was clearly covered under Section 65 IBC (fraudulent or malicious initiation of proceedings).

In such view of the matter, the Appellate Tribunal was inclined to interfere with the impugned order. The appeal was, thus, dismissed. [Praveen Kumar Mundra v. CIL Securities Ltd., 2019 SCC OnLine NCLAT 334, decided on 14-05-2019]

Case BriefsSupreme Court

Supreme Court: Holding that the trade union represents its members who are workers, to whom dues may be owed by the employer, which are certainly debts owed for services rendered by each individual workman, who are collectively represented by the trade union, the bench of RF Nariman and Vineet Saran, JJ said,

“to state that for each workman there will be a separate cause of action, a separate claim, and a separate date of default would ignore the fact that a joint petition could be filed under Rule 6 read with Form 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, with authority from several workmen to one of them to file such petition on behalf of all.”

The Court was deciding the question whether a trade union could be said to be an operational creditor for the purpose of the Insolvency and Bankruptcy Code, 2016.

The Court noticed that a trade union is certainly an entity established under a statute – namely, the Trade Unions Act, and would therefore fall within the definition of “person” under Sections 3(23) of the Code. This being so, it is clear that an “operational debt”, meaning a claim in respect of employment, could certainly be made by a person duly authorised to make such claim on behalf of a workman. Rule 6, Form 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 also recognises the fact that claims may be made not only in an individual capacity, but also conjointly.

It was further noticed that a registered trade union recognised by Section 8 of the Trade Unions Act, makes it clear that it can sue and be sued as a body corporate under Section 13 of that Act. Equally, the general fund of the trade union, which inter alia is from collections from workmen who are its members, can certainly be spent on the conduct of disputes involving a member or members thereof or for the prosecution of a legal proceeding to which the trade union is a party, and which is undertaken for the purpose of protecting the rights arising out of the relation of its members with their employer, which would include wages and other sums due from the employer to workmen.

The Court, hence, said,

“Looked at from any angle, there is no doubt that a registered trade union which is formed for the purpose of regulating the relations between workmen and their employer can maintain a petition as an operational creditor on behalf of its members. We must never forget that procedure is the handmaid of justice and is meant to serve justice.”

[JK Jute Mill Mazdoor Morcha v. Juggilal Kamlapat Jute Mills, 2019 SCC OnLine SC 619, decided on 30.04.2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Law Appellate Tribunal (NCLAT): A Bench of Justice S.J. Mukhopadhaya, Chairperson and Justice A.I.S Cheema, Member (Judicial) and Kanthi Narahari, Member (Technical) allowed the appellant (shareholder of the Corporate Debtor) to pay the total dues of the Operational Creditor after the application filed against it under Section 9 of the Insolvency and Bankruptcy Code, 2016 was admitted by the the National Company Appellate Tribunal, Bengaluru.

The appellant submitted that though the Section 9 application was admitted against it, however, the Committee of Creditors was not yet constituted. He submitted that he was ready to pay the total dues of the Operational Creditor which brought the application before NCLT.

Three demand drafts brought by the appellant were produced before the Appellate Tribunal, which were directed to be handed over to the Operational Creditor in the discharge of Corporate Debtor’s liability towards it. In view of the fact that the total amount was paid to the Operational Creditor and the Committee of Creditors was not yet constituted, the Appellate Tribunal set aside the impugned order of NCLT admitting the Section 9 application against the Corporate Debtor. [A.P. Abdul Kareem v. Om Industrial Corpn., 2019 SCC OnLine NCLAT 154, Order dated 16-04-2019]