1. CIRP - Initiation

Case Withdrawal

Allowed before the constitution of COC

  1. There is no bar on withdrawing application admitted under section 7 of IBC before the constitution of CoC.
  2. Ashok G. Rajani Versus Beacon Trusteeship Ltd. & Ors
  3. https://icsiiip.in/panel/assets/images/learning_curves/Learning_curve_842_(1).pdf

Debt / Liability

TDS paid - not acknowledgment of Liability

  1. TDS paid on interest payable cannot be considered as acknowledgment in writing of the liability by the corporate debtor
  2. P.M. Cold Storage Pvt. Ltd. v. Goouksheer Farm Fresh Pvt. Ltd. and Ors.
  3. https://icsiiip.in/panel/assets/images/learning_curves/Learning_curve_838.pdf

Litigations

Limitation Period

  1. Limitation period is to be counted from the date when the certified copy is prepared and not from the date of delivery of the certified copy.
  2. Wadhwa Rubber v Bandex Packaging Pvt. Ltd.
  3. https://icsiiip.in/panel/assets/images/learning_curves/Learning_curve_832.pdf

Pre-existing Dispute

Application Rejection

  1. Pre-existing dispute cannot be the ground of rejecting section 9 application, where corporate debtor failed to file appeal against the decree of commercial court within the prescribed time limit
  2. Jangsher Singh Choudhary vs. Ram Kripal Singh Construction Pvt. Ltd.
  3. https://icsiiip.in/panel/assets/images/learning_curves/Learning_Curve-826.pdf

Documentary Evidence

Bankers Certificate

  1. A Bankers certificate is not mandatorily required as documentary evidence of default, to trigger CIRP under Section 9 of the Code
  2. M/s Quippo Infrastructure Limited v. M.R. Nirman Private Limited
  3. https://icsiiip.in/panel/assets/images/learning_curves/Learning_curve_820.pdf

Recovery Vs Resolution

Debt Recovery

  1. Any Application to commence CIRP can be denied when the Creditor is using Insolvency process as an inappropriate substitute for Debt Recovery Procedures.
  2. M/s Agarwal Veneers v Fundtonic Service Pvt. Ltd.
  3. https://icsiiip.in/panel/assets/images/learning_curves/Learning_curve_819.pdf

Acknowledge of Debt

Limitation Period

  1. An acknowledgment under the Limitation Act has to be made within the period of limitation and need not be accompanied by any promise to pay.
  2. Kotak Mahindra Bank Limited Vs. Kew Precision Parts Private Limited & Ors.
  3. https://icsiiip.in/panel/assets/images/learning_curves/Learning_curve_818.pdf

Disallowed

Related Parties

  1. CIRP cannot be initiated on sham transaction entered between related parties: NCLAT New Delhi
  2. Zoom Communications Pvt. Ltd. vs. M/s. Par Excellence Real Estate Pvt. Ltd.
  3. https://icsiiip.in/panel/assets/images/learning_curves/Learning_Curve-816.pdf

Dismissal

Section 7 Application

  1. Section 7 application is liable to be dismissed if the Financial Creditor played a contributory role in the alleged default
  2. IDBI Bank Ltd v Abhijeet Integrated Steel Ltd
  3. https://icsiiip.in/panel/assets/images/learning_curves/Learning_curve_806.pdf