October 20 To October 26, 2018 u Taxmann’s Corporate Professionals Today u Vol. 43 u (^53411)
Insolvency and Bankruptcy Code
Insolvency plea could not be
accepted due to non-submission of
post-dated cheques: NCLT
Inox Wind Ltd. v. Nilgiri Power (P.) Ltd.
[2018] 97 taxmann.com 504 (NCLT - Hyd.)
Corporate debtor entered into an agreement
with operational creditor for a composite
project comprising of supply of materials as
well as erection and commissioning of wind
turbine generators. When corporate debtor
failed to make payment in respect of same,
operational creditor withdrew operation and
maintenance services provided to project of
corporate debtor. Thereafter, corporate debt-
or agreed to settle outstanding amount and
entered into MoU with operational creditor.
As per said MoU, corporate debtor agreed to
make payment of 7.34 crore but he failed to submit post-dated cheques (PDCs) of 4.74 crores; therefore, operational creditor
initiated insolvency resolution process against
corporate debtor.
It was held that non-submission of PDCs
amounted to breach of terms of MoU but
it could not be equated with debt due and
payable. Therefore, question of payment of
same did not arise and instant petition for
initiation of insolvency resolution process
was to be rejected.
Discretion lies in hands of commit -
tee reditors of c to go in for resolu -
tion plan or liquidation of debtors
Padmesh Gupta v. C. Bala Mouli [2018] 97
taxmann.com 625 (NCLT - Mum.)
Discretion is within hands of Committee
of Creditor’s (CoC) to go for resolution or
liquidation of corporate debtor. Therefore,
Resolution Plan (RP) could not challenge
discretion of CoC, on ground that RP placed
draft format of invitation of resolution plan
before CoC, but CoC had not approved of
any of draft proposal placed by RP.
No eferential pr transaction if sale
deed was executed prior to one year
of initiating CIRP
V. Nagarajan (Liquidator) v. Asset Reconstruc-
tion Company India Ltd. [2018] 98 taxmann.
com 94 (NCL-AT)
Resolution professional filed application under
section 43 stating that corporate debtor had
made preferential transaction in favour of 2nd
respondent by executing a sale deed on 30-
5-2016. Sale deed was executed prior to one
year preceding commencement of insolvency
proceedings and, therefore, application under
section 43 was to be rejected
Competition Law
Presence of private real estate de-
velopers in relevant market ruled
out dominance of UP Housing Devel -
opment Board
D.K. Srivastava v. UP Housing & Develop-
ment Board [2018] 97 taxmann.com 672 (CCI)
Informant, an Allottee of LIG residential flat
developed by OP, alleged that OP, with a
mala fide intention for extracting more mon-
ey from informant, had raised an additional
demand in form of increase in cost of flat,
restoration charges, service tax and on account
of Goods and Services tax and threatened
informant to cancel allotment of flat in case
said demands were not paid. Informant had
claimed that said arbitrary conduct of OP
was causing appreciable adverse effect on
competition within India in violation of pro-
visions of section 3. It was noted that nature
of agreement entered into between informant
and OP did not qualify as an agreement
under section 3(3) as two of them were not
engaged in identical or similar trade of goods
or provision of services. Thus, prima facie no
contravention of provisions of section 3 was
made out against OP.
lll
Weekly reVieW
ron
(Ron)
#1