The Insolvency and Bankruptcy Board of India (“IBBI”) notified the IBBI (Insolvency Resolution Process for Corporate Persons) (Fourth Amendment) Regulations, 2022 on September 16, 2022 (“Fourth Amendment”) and the IBBI (Insolvency Resolution Process for Corporate Persons) (Fifth Amendment) Regulations, 2022 on September 20, 2022 (“Fifth Amendment”). The Fourth Amendment and the Fifth Amendment are collectively referred to as the “Amendments”). We have summarised the Amendments below.

In a recent decision, a 3 (three) judge bench of the High Court of Bombay (“Bombay High Court”) in the case of Jalgaon Janta Sahakari Bank Ltd. & Anr. v. Joint Commissioner of Sales & Anr, has held that the dues of secured creditors would rank superior to dues of state government upon sale of a secured asset under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (“SARFAESI Act”) and Recovery of Debts and Bankruptcy Act, 1993 (“RDDB Act”).

In the recent decision of Somesh Choudhary v. Knight Riders Sports Private Limited & Ors., the National Company Law Appellate Tribunal (“NCLAT”), New Delhi has held that claims arising from the grant of an exclusive right and license to use intellectual property rights falls within the definition of “operational debt” under Section 5(21) of Insolvency and Bankruptcy Code, 2016 (“IBC”).

Background Facts

The 5 (five) judge bench of the National Company Law Appellate Tribunal (“NCLAT”) has recently decided the long- standing issue of whether re-presentation of appeal constitutes a fresh filing before the NCLAT and its implication on the period of limitation. The NCLAT has held, inter alia, that ‘re-filing’ an appeal (after curing defects) beyond the prescribed 7 (seven) days period will not amount to a ‘fresh filing’ for the purposes of the limitation.

Facts

The Polyvocal Court

In its decision in Ghanashyam Mishra & Sons Pvt. Ltd. v. Edelweiss Asset Reconstruction Company Ltd., a bench of three Judges of the Supreme Court  held that  “Harmonious construction of clause (10) of Section 3 of the I&B Code read with clauses (20) and (21) of Section 5 thereof would reveal, that even a claim in respect of dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority would come within the ambit   of ‘operational debt’.

On August 3, 2022, a division bench of the Hon’ble Bombay High Court (“High Court”) comprising of Justice K.R. Shriram, and Justice A.S. Doctor in the case of Phoenix ARC Pvt. Ltd. & Anr. v.

The Principal Bench of National Company Law Appellate Tribunal (“NCLAT”) in its recent order, Rakesh Kumar Jain v. Jagdish Singh Nain & Ors., has inter alia held that Section 14(1)(a) of the Insolvency and Bankruptcy Code, 2016 (“IBC”) does not bar passing of any orders under Section 66 of the IBC against the resolution professional during operation of the moratorium imposed under Section 14 of the IBC.

The Supreme Court of India (“Supreme Court”) in Sundaresh Bhatt, Liquidator of ABG Shipyard vs. Central Board of Indirect Taxes and Customs has held that the Customs Act, 1962 (“Customs Act”) and the Insolvency and Bankruptcy Code, 2016 (“IBC”) act in their own spheres. In case of any conflict, the IBC would override the Customs Act.

On August 11, 2022, a two-judge bench of the Hon’ble Supreme Court in the case of Bank of Baroda vs Parasaadilal Tursiram Sheetgrah Pvt. Ltd. has observed that the time limit of 45 (forty-five) days prescribed under Section 17 of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (“Act”) is provided for quick enforcement of the security.

Brief Facts & Procedural History