Key takeaways
The recent pronouncement by the Supreme Court in Kalyani Transco v. Bhushan Power and Steel Ltd & Ors serves as a stark reminder of the sanctity of IBC, and the perils of procedural laxity and opportunistic manoeuvring. The Apex court not only disapproved of the powers of NCLAT to judicial review over the decision taken by ED under PMLA but also delivered a scathing critique of the entire CIRP of BPSL, ultimately leading to the rejection of JSW Steel’s resolution plan and an order for liquidation.
Introduction
The Supreme Court in the matter of National Spot Exchange Ltd. v. Union of India and Ors. ruled that the moratorium under IBC does not prohibit attachment of properties under the MPID Act3. The bench of Justices Bela M Trivedi and Satish Chandra Sharma was addressing a case stemming from the 2013 NSEL4 scam. In this, commodity exchange platform NSEL defaulted on ₹5,600 crores in payments to approximately 13,000 traders.
Earlier this year, the Internal Revenue Service (“IRS”) recognized a victory in United States v. Miller. In this bankruptcy case, the trustee attempted to avoid certain transfers that shareholders of the bankrupt company had made, including a $145,000 transfer to the IRS.
The Insolvency Service (in reply to a letter from R3) has confirmed that it will be reframing its view of the term "creditor". This follows the cases last year of Pindar and Toogood where the court was asked to consider whether a paid secured creditor should have consented to an administration extension and therefore, in the absence of consent, whether the extensions were valid in both cases, the judges confirmed that the consent of paid secured creditors was not required.
Der Bundesgerichtshof (BGH) stellte mit Urteil vom 18. April 2024 (Az. IX ZR 129/22) erneut klar, dass externe Darlehensgeber wie Banken unter bestimmten Umständen insolvenzrechtlich wie Gesellschafter behandelt werden können – insbesondere dann, wenn ihnen durch vertragliche Regelungen wie Ergebnisbeteiligung und Investitionsvorbehalt eine mitgliedschaftsähnliche Stellung eingeräumt wird.
In its ruling of April 18, 2024 (case no. IX ZR 129/22), the Federal Court of Justice (BGH) once again clarified that external lenders such as banks can be treated as shareholders under insolvency law under certain circumstances – especially if they are granted a position similar to that of a member through contractual provisions such as profit participation and investment reservation.
A secured creditor with a hypothec (charge) over a specific immovable property can enforce against that property without having to put the debtor through a full-blown bankruptcy process. That was one of the key outcomes of the Royal Court's decision in Representation of Prospect Holdings Limited[2025] JRC 164.
What happened?
Introduction
In this first instalment of our insights series on construction insolvency, Ironbridge Legal outlines key red flags to look for and practical steps to manage counterparty risk.
An Industry at Risk - With Contagion Potential