This judgement is a step in the right direction because it recognizes the authority of a non-petitioning creditor to request for a transfer of the winding up proceedings. It assures that A creditor is not deprived of their right just because they didn’t participate in the initial winding up procedure against corporate debtor.
Since the Limitation Act is applicable to applications filed under Sections 7 and 9 of the Code from the inception of the Code, Article 137 of the Limitation Act gets attracted. “The right to sue”, therefore, accrues when a default occurs.
The Supreme Court of India defined Section 60(5) of the Code as a residuary jurisdiction vested in the NCLT, allowing the NCLT to decide all questions of law or fact arising out of or in relation to the corporate debtor’s insolvency resolution or liquidation under the Code.
Any person aggrieved by the decision of NCLT, or is not satisfied with the decision or if there is any mistake or error on part of NCLT then such a person can appeal NCLAT u/s 61 of IBC for its corrections and proper disposal of judgement/order.
whereas legislation like RERA provides for individual remedies against the Builder, the IBC Code gives collective control over the affairs and management of the Corporate Debtor to its financial creditors.
NCLT and RERA have different functioning and approach to tackle cases of homebuyers, often homebuyers are confused on which remedy to choose.
Hon’ble SC clarified the position of the homebuyers similar to that of a “financial creditor” under the IBC, after this the homebuyers were at a par with banks and financial institutions.
The NCLT and the National Company Law Appellate Tribunal (NCLAT) have to ensure that they do not usurp the legitimate jurisdiction of other courts, tribunals and for when the dispute is one which does not arise solely from or relate to the insolvency of the Corporate Debtor.
Petition before NCLT can be admitted even if official liquidator has been appointed by the High Court (Held By NCLT and Hon’ble Supreme Court)
New Petitions under section 7 of the Insolvency and Bankruptcy Code will mandatory be required to file default record from the Information Utility as per NCLT directed.
RCom burdened with over Rs 46,000 crore of debt after the failure of its asset monetisation plans with Reliance Jio in March 2019 is undergoing insolvency proceedings with its assets up for sale.
The RERA Act at present is still a toothless tiger due to lack of execution process of RERA orders. The reliefs under RERA at the moment rest only in paper.
A notice of dispute to a claim under the IBC (Section 9), 2016 is not admissible if made over a telephonic communication and not supported by phone records.
Forum for People’s Collective Efforts, has approached the parliamentary standing committee on finance with its objection to a proposed amendment to the Insolvency and Bankruptcy Code.
Alternatives that an individual home buyer has in cases when the priority is refund and how they can proceed before NCLT or in other words exploit a long standing loophole.
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