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.
Since the enactment of the Insolvency and Bankruptcy Code in 2016 (“IBC, 2016), the judiciary has been very active in settling disputes and addressing the gaps arising from this controversial legislation. Recently, yet another dispute arising out of a technical gap in the IBC has been resolved by the Apex Court in the case of M/s Consolidated Construction Consortium Limited v. M/s Hitro Energy Solutions Private Limited.1
Brief facts of the case
Mani Gupta, Aman Choudhary and Saumya Upadhyay, Sarthak Advocates & Solicitors
This is an extract from the 2023 edition of GRR's The Asia-Pacific Restructuring Review. The whole publication is available here.
In summary
INTRODUCTION
The Hon’ble Delhi High Court vide its order dated May 13, 2022, in Millennium Education Foundation Vs Educomp Infrastructure And School Management Limited, has held that the mere pendency of an insolvency petition under Section 9 of the Insolvency and Bankruptcy Code, 2016 is not a bar for appointment of Arbitrator under the Arbitration and Conciliation Act, 1996.
The National Company Law Tribunal, Chennai Bench vide its order dated April 25, 2022 in Mr. N. Kumar v. Tata Capital Housing Finance Ltd.1 held that the project-wise Corporate Insolvency Resolution Process of a real estate company is outside the purview of the Insolvency and Bankruptcy Code, 2016 (IBC).
Brief facts of the case
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.
The Insolvency and Bankruptcy Code 2016 has been evolving immensely since its inception. Through this Quarterly Journal the firm aims to share recent updates and landmark Judgements pertaining to the Code.
Recovery Certificate Holder Can Initiate CIRP As Financial Creditor Under IBC: Supreme Court
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.
A 3-Judge Bench of the Supreme Court in its judgment dated 26 August 2022 has held that the provisions of the Insolvency and Bankruptcy Code, 2016 will prevail over the provisions of the Customs Act, 1962.