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
一、模拟案例
A公司看好B公司的发展前景，意欲与其实际控制人张三签订投资协议，由A公司向B公司增资。同时为确保自己的投资安全，A公司与张三同时约定，股权回购条件成就时，张三须向A公司回购股份。合同签订后，A公司依约向B公司汇入投资款。然而由于市场环境突然变化，B公司由盈利转为亏损，股权回购条件触发，A公司向张三主张股权回购。此时A公司发现，张三已经与其配偶协议离婚且净身出户，放弃了较大数额夫妻共同财产的所有权。此时，A公司应当如何保护自己的债权？
站在A公司要求债务得到清偿的角度，存在以下几种可能。如果张三与A公司签订协议时，提供了财产为A公司设立担保，那么A公司可以就张三所提供的财产行使担保物权。如果有第三人为张三的债务提供保证，那么A公司可以要求第三人承担保证责任。如果A公司有证据能够证明案涉债务成立夫妻共同债务，即使张三已经与其配偶离婚，A公司也可以追讨张三及其配偶的夫妻共同财产，使自己的债权得以实现。如果A公司无证据证明案涉债务成立夫妻共同债务，或者法院认为案涉债务不成立夫妻共同债务，A公司还有一种选择：撤销张三在离婚协议中放弃夫妻共同财产的行为，使得张三财产得到恢复，增强其偿债能力。A公司撤销张三放弃夫妻共同财产行为的权利，在法律上被称为债权人撤销权。
二、债权人撤销权的法律规定
Good afternoon.
Following are this week’s summaries of the Court of Appeal for Ontario for the week of August 22, 2022.
In Mundo Media Ltd. (Re), the Court refused leave to appeal in a bankruptcy case where a debtor of the bankrupt sought to stay the bankruptcy proceeding in favour of international arbitration. The single proceeding model permits a bankruptcy court to override arbitration agreements.
UK judgment is a prompt for landlords to consider all angles to maximise rent recovery in harsh economic conditions
The UK High Court has ruled in in favour of a landlord whose original tenant and guarantor were held liable for the rent accrued on a gym in Leeds despite the subsequent assignee operating under a restructuring plan.
This week’s TGIF considers Manda Capital Holdings Pty Ltd v PEC Portfolio Springvale Pty Ltd [2022] VSC 381, a recent Victorian Supreme Court decision that focused on the effect of COVID-19 on the property market, through the lens of a mortgagee’s duties under section 420A of the Corporations Act 2001 (Cth).
Key takeaways
Go-To Guide:
The new Companies House Register of Overseas Entities (the “OE Register”) became operational and key parts of the Economic Crime (Transparency and Enforcement) Act (“ECTEA”) came into force on 1 August 2022.
The land registration elements of ECTEA have been deferred and will come into force on 5 September 2022 – this second stage of implementation will with effect from such date have an immediate impact on the registration of property acquisitions and new leases and security being taken over those acquisitions/leases.
Since the implementation of the Insolvency and Bankruptcy Code, 2016, (“Code”), the Real Estate Sector has been in turmoil, with many transactions entered into by the Builder(s) undermining and jeopardising the legitimate interests of innocuous creditors. The Code encompasses a collection of transactions that the Interim Resolution Professional (“IRP”) and the liquidator appointed by the National Company Law Tribunal (“NCLT”) for companies in insolvency or liquidation should avoid, as stated below.
Good morning.
Following are this week’s summaries of the Court of Appeal for Ontario for the week of July 25, 2022.
Good morning.
Following are this week’s summaries of the decisions released from the Court of Appeal for Ontario for the week of July 25, 2022. The Court was busy before its long weekend including one lengthy substantive case released.
Do landlords do get a good deal in CVAs? It would seem they do (if you don't read the small print…)
A few weeks ago we blogged that we were expecting RSM's research report, which was commissioned by the Insolvency Service, into the impact of CVAs on the landlords. The specific question in the research paper was: "are landlords equitably treated, compared to other creditors in large business CVAs?".