India: Indian Insolvency Quarterly Roundup 2021 (January 2021 To March 2021)

The year began on a high note, with several noteworthy judgments being delivered by the Indian Supreme Court in matters involving the Insolvency and Bankruptcy, Code 2016. Some recent decisions of the Hon'ble Supreme Court rendered in the first quarter of 2021 that discuss and set out the legal position concerning the interpretation and applicability of provisions of the Insolvency and Bankruptcy Code, 2016 have been summarised below:

1. Manish Kumar v. Union of India (UoI) and Ors.

Citation: 2021 SCC OnLine SC 30

Decided on: 19.01.2021

The minimum threshold prescribed in the Insolvency and Bankruptcy Code (Amendment) Act, 2020 for allottees wishing to file an insolvency petition against builders and real estate companies, is constitutionally valid and in line with the spirit of the Insolvency and Bankruptcy Code, 2016.

Brief Facts

The petitioners in the present case knocked on the doors of the Hon'ble Supreme Court, challenging the constitutional validity of Sections 3, 4 and 10 of the Insolvency and Bankruptcy Code (Amendment) Act, 2020 (Impugned Amendment). The Impugned Amendment, amongst other things, requires that there shall be at least 100 allottees or 10 per cent of the total allottees, whichever is less, to present an application under Section 7 of the IBC against a real estate company. The Impugned Amendment also requires such allottees to belong to the same project. The petitioners argued that once a right was conferred under the IBC to make an application, it could not be conditioned or limited as done through the Impugned Amendment. The petitioners contested the Impugned Amendment's constitutional validity since the homebuyers were deprived of the rights under Section 7 of the IBC in an arbitrary fashion.

The first respondent argued that the Impugned Amendment was a perfectly valid economic measure taken due to an expert committee's recommendations. The expert committee had held that the initiation of the Corporate Insolvency Resolution Process (CIRP) of similarly situated creditors should be done to represent their collective interests. The expert committee further observed that a CIRP should be initiated only when enough creditors form a "critical mass", indicating a large-scale agreement that the issues against a corporate entity need to be resolved. The first respondent also highlighted the fact that even if a homebuyer could not file an application for initiation of CIRP for having failed to reach the prescribed threshold under the Impugned Amendment, recourse could still be had to an alternative forum under the Real Estate (Regulation and Development) Act, 2016 (RERA) and the consumer protection laws. Hence, the present case.

Held

The Hon'ble Supreme Court noted that the new threshold had its basis in the recommendations in a report of an experts committee. The Hon'ble Supreme Court then turned to the rationale behind setting a minimum number of allottees and confining them to the same real estate project to initiate insolvency proceedings against real estate developers successfully. It was held that the new threshold was crucial to form the critical homogenous mass that the legislature had envisaged. If allottees from all projects were allowed to proceed against a real estate developer, the task of the applicants in the insolvency resolution process would become more cumbersome. This, in turn, would impact the timeliness of the entire insolvency resolution process. It was observed that allowing an individual allottee with a high level of subjectivity in decision-making would also defeat the object of balancing the interest of all stakeholders involved in the insolvency resolution process. The Hon'ble Supreme Court held that the requirement of the minimum number of allottees and such allottees being drawn from the same project stands to reason and does not suffer from any constitutional blemish.

While discussing the intelligible differentia in the Impugned Amendment, the Hon'ble Supreme Court held that the Allottees were distinguished from other financial creditors due to the sheer numerosity, heterogeneity, and individuality in decision making. There could be hundreds or even thousands of allottees in a real estate project. By imposing a threshold limit of a hundred allottees or one-tenth of the total, the problem of heterogeneity is sought to be resolved. Insisting on the similar treatment of such allottees as other financial creditors would lead to indiscriminate litigation, resulting in an uncontrollable docket explosion. It was noted that apart from proceedings under the IBC, some of the allottees may seek remedy under the RERA, and others may resort to the consumer protection laws or a civil suit. In such circumstances, if the legislature distinguishes the allottees from other financial creditors, the Hon'ble Supreme Court held that it is not for the Court to sit in judgment over the wisdom of such a measure.

The Hon'ble Supreme Court concluded that this is not a case without intelligible differentia. The law under scrutiny, i.e., the Impugned Amendment, was an economic measure taken to further the spirit of the IBC. The Hon'ble Supreme Court held that the legislature must have the freedom to experiment, particularly in economic laws. If problems emerged over time that necessitated a legislative intervention, the courts could not bar the legislature from coming up with an amendment. Hence, the Hon'ble Supreme Court upheld the constitutional vires of the Impugned Amendments.

2. Phoenix ARC Pvt. Ltd. v. Spade Financial Services Ltd.

Citation: 2021 SCC OnLine SC 51

Decided on: 01.02.2021

Where a financial creditor ceases to be a related party with the sole intention of participating in the CoC and disrupting the CIRP, it would be appropriate to consider the party as debarred from the membership of the CoC given the object and purpose of the first proviso in Section 21(2) of Insolvency and Bankruptcy Code, 2016.

Brief Facts

The present matter deals with appeals that arise from the judgment of the National Company Law Appellate Tribunal (NCLAT) under Section 61 of the Insolvency and Bankruptcy Code, 2016 (IBC) preferred by AAA Landmark Pvt. Ltd. (AAA Landmark) and Spade Financial Services Pvt. Ltd. (Spade).

Before the NCLAT, AAA Landmark and Spade had challenged the decision of the National Company Law Tribunal (NCLT), which held that AAA Landmark and Spade had to be excluded from the Committee of Creditors (CoC) in the Corporate Insolvency Resolution Process (CIRP) initiated against AKME Projects Limited (Corporate Debtor).

During the CIRP, the CoC of the Corporate Debtor was constituted on 22 May 2018. On 25 May 2018, the Interim Resolution Professional (IRP) rejected Spade's claim stating the same did not constitute a financial debt in terms of Section 5(8) of IBC. The IRP's rationale was that the claim lacked a consideration for the time value of money, i.e., the period of repayment of the claimed dues was not stipulated. The IRP also rejected the claim of AAA Landmark on the ground that its application was time-barred. Aggrieved by the claim's rejection as financial creditors, AAA Landmark and Spade filed their respective applications before the NCLT for getting included in the CoC. The NCLT vide its order dated 30 May 2018 allowed the applications filed by AAA Landmark and Spade to file their claims in the capacity of financial creditors.

On 1 June 2018, the meeting of the CoC was convened, which was attended by Phoenix ARC Pvt. Ltd. (Phoenix) and Yes Bank (other financial creditors in the present matter), AAA Landmark and Spade. Eventually, Yes Bank and Phoenix filed applications in the NCLT for the exclusion of AAA Landmark and Spade from the CoC, contending that they were related parties. The NCLT, in its order dated 19 July 2019, held that Spade and AAA Landmark did not qualify to be considered as financial creditors, thereby allowing the applications filed by Yes Bank and Phoenix. In the appeal, the NCLAT held that NCLT had rightly excluded both Spade and AAA Landmark from participation in the CoC since both the entities were a part of a web of corporations that were trying to gain a backdoor entry into the CoC through them.

Hence, before the Hon'ble Supreme Court in the present appeal, the moot point was whether AAA Landmark and Spade are related parties of the corporate debtor. If so, whether AAA Landmark and Spade have to be excluded from CoC.

Held

The Hon'ble Supreme Court held that the IBC had made provisions for identifying, annulling, or disregarding "avoidable transactions" that distressed companies may have undertaken to hamper recovery of creditors in the event of the initiation of CIRP. It was observed that for the success of an insolvency regime, the real nature of the transactions has to be unearthed to prevent any person from taking undue benefit of its provisions to the detriment of legitimate rights of creditors.

Upon dwelling into the factual matrix of the case, the Hon'ble Supreme Court believed that the commercial arrangement between Spade and AAA Landmark was collusive in nature and did not constitute any "financial debt". Consequently, Spade and AAA Landmark were not the financial creditors of the Corporate Debtor.

On the question of Spade and AAA Landmark being related parties, the Supreme Court noted that the facts of the case reflected a deep entanglement between AAA Landmark, Spade and the Corporate Debtor besides the transactions between them being collusive in nature. Consequently, the Hon'ble Supreme Court concluded that AAA Landmark and Spade were related parties of the Corporate Debtor under Section 5(24) of the IBC.

The Hon'ble Supreme Court then referred to Section 21(2) of the IBC, the first proviso to which states that a related party of the corporate debtor shall not have any right to participate or vote in a meeting of the CoC. The Hon'ble Supreme Court held that the objects and purposes of the IBC are best served when external creditors drive the CIRP to ensure that the CoC is not sabotaged by related parties of the corporate debtor. This is the intent behind the disqualification under Section 21(2) of the IBC.

The Hon'ble Supreme Court observed that the default rule is that a financial creditor who in the present is not a related party would not be debarred from being a member of the CoC under the first proviso to Section 21(2) of the IBC. However, where a financial creditor ceases to be a related party with the sole intention of participating in the CoC and disrupting the CIRP, it would be appropriate to consider such party as debarred from the membership of the CoC given the object and purpose of the first proviso in Section 21(2) of IBC.

The Hon'ble Supreme Court finally concluded that due to the collusive nature of their transactions, AAA Landmark and Spade could not be labelled as financial creditors under Section 5(7) of the IBC.

3. Phoenix ARC Private Ltd v. Ketulbhai Ramubhai Patel

Citation: 2021 2 SCC 799

Decided on: 03.02.2021

A party will not become a financial creditor under Section 5(8) of the Insolvency and Bankruptcy Code, 2016 by merely having shares pledged in its name if the pledgor does not specifically undertake to discharge the borrower's liability.

Brief Facts

In the present matter, a Facility Agreement (Agreement) was executed between Doshin Ltd. (Borrower) and L&T Infrastructure Finance Company Ltd. (Lender). Doshin Veolia Water Solutions Pvt. Ltd. (Corporate Debtor) was not a party to the Agreement. The Corporate Debtor's board of directors passed a resolution to give an undertaking in favour of the Lender to the effect that 100 per cent of the shareholding of the Corporate Debtor in Gondwana Engineers Ltd. (GEL) would not be disposed of so long as any amounts were outstanding and payable by the Borrower to the Lender under the Agreement.

Consequently, a Pledge Agreement (Pledge of Shares) was signed between the Corporate Debtor and the Lender through which the shares of the Corporate Debtor held in GEL were pledged as a security. Further, an undertaking (Undertaking) was also executed by the Corporate Debtor in favour of the Lender. By way of an assignment (Assignment), the Lender conveyed all rights, title, and interest in the financial facility, including the security and interest therein, to Phoenix ARC Pvt. Ltd. (Appellant).

The Borrower failed to repay the dues as agreed under the Agreement. The Bank of Baroda filed a petition before the National Company Law Tribunal (NCLT) under Section 7 of the Insolvency and Bankruptcy Code, 2016 (IBC) in respect of the Corporate Debtor. The NCLT admitted the application, and the Corporate Insolvency Resolution Process (CIRP) was commenced wherein the Appellant filed its claim for an amount of INR 83,49,85,667 with the respondent. The Resolution Professional (RP) rejected the Appellant's claim as a financial creditor noting that there was no separate deed of guarantee that was signed in favour of the Lender by the Corporate Debtor. Consequently, the NCLT passed on an order rejecting the Appellant's claim while holding that the Appellant's status as a financial creditor was not proved as prescribed under Section 5(8) of the IBC.

The Appellant then approached the National Company Law Appellate Tribunal (NCLAT) to appeal against the decision of the NCLT, which was dismissed. Aggrieved by the decision of the NCLAT, the Appellant approached the Hon'ble Supreme Court.

Held

Before the Hon'ble Supreme Court, the moot question was whether the Appellant was a financial creditor under Section 5(8) of the IBC based on the Pledge of Shares and Undertaking entered into with the Lender. At the outset, the Hon'ble Supreme Court examined the definition of financial debt contained in Section 5(8) of the IBC. It was held that financial debt means a debt that is disbursed against the consideration for a time value of money. Therefore, there was no dispute that the Lender's credit facility under the Agreement to the Borrower would be covered under Section 5(8)(b) of the IBC.

However, commenting upon the Pledge of Shares, the Hon'ble Supreme Court held that the same was only limited to the pledge of 40,160 shares of GEL held by the Corporate Debtor to the Lender. The Pledge of Shares did not contain any contract that the Corporate Debtor would undertake the promise which was made by the Borrower under the Agreement to discharge the dues. It was only the Borrower who had promised to repay the loan granted under the Agreement. In reference to the term "guarantee" employed in Section 5(i) of the IBC, it was held that the Pledge of Shares and the Undertaking signed between the Corporate Debtor and the Lender did not constitute a contract of guarantee within the meaning of Section 126 of the Indian Contract Act, 1872. At best, the Pledge of Shares was security favouring the Lender who will be secured qua the Corporate Debtor and not the financial creditor qua the corporate debtor. Hence, the Hon'ble Supreme Court upheld the RP's decision, which was further upheld by the NCLT.

4. Ramesh Kymal v. M/S Siemens Gamesa Renewable Pvt. Ltd.

Citation: 2021 SCC OnLine SC 72

Decided on: 09.02.2021

The bar on initiation of the insolvency proceedings under Section 10A of the Insolvency and Bankruptcy Code (Amendment) Ordinance 2020 shall include defaults committed by corporate debtors arising on or after 25 March 2020.

Brief Facts

The appellant in the instant matter claimed that a sum was due and payable to him by virtue of the entitlements receivable pursuant to his resignation. The appellant has submitted his resignation to the respondent along with the claim under Employment and Incentive Agreements (Employment Agreements). The respondent confirmed the payments which were due and payable to the appellant under the letter of resignation. However, a termination letter was addressed to the appellant by the respondent. Consequently, the appellant issued a demand notice dated 30 April 2020. Thereafter the appellant filed an application under Section 9 of the IBC dated 11 May 2020 on the ground that there was a default in payment of his operational dues under the Employment Agreements.

During the application's pendency, the Insolvency and Bankruptcy Code (Amendment) Ordinance 2020 (Ordinance) was promulgated by the President of India on 5 June 2020. The Ordinance introduced Section 10A, which states that no application for initiating the Corporate Insolvency Resolution Process (CIRP) of a corporate debtor should be filed for any default arising on or after the 25 March 2020 until the period prescribed. The respondent filed an application seeking the dismissal of the appellant's application based on the newly inserted Section 10A of the IBC. The National Company Law Tribunal (NCLT) upheld the respondent's submission holding that a bar was created by Section 10A on initiation of insolvency proceedings. The appellant preferred an appeal before the National Company Law Appellate Tribunal (NCLAT), which affirmed the decision of the NCLT, holding that by the effect of Section 10A of the IBC, the application filed by the appellant under Section 9 was not maintainable. Hence, the present matter.

Held

In the instant case, the moot proposition outlined was whether Section 10A is attracted to an application under Section 9 of the IBC filed before 5 June 2020 (the date of enforcement of the Ordinance) concerning a default that occurred after 25 March 2020. The Hon'ble Supreme Court held that the financial distress caused by the Covid-19 global pandemic provided the backdrop to the insertion of Section 10A in the IBC. It was observed that the substantive part of Section 10A stipulates that for any default arising on or after 25 March 2020, no application for initiation of the CIRP would be admissible for six months or such further timeline not extending one year from the date of notification.  It was further observed that applying the Ordinance prospectively would leave a whole class of corporate debtors where the default has occurred on or after 25 March 2020 outside the pale of protection because the application was filed before 5 June 2020.

The Hon'ble Supreme Court held that the legislature was cognizant that resolution applicants might not come forth to participate in insolvency resolution procedures leading to corporate debtors going under liquidation and no longer remaining a going concern. This would be antithetical to the very aim of the IBC as held in the case of Swiss Ribbons (P) Ltd. v. Union of India.¹ Therefore, the Hon'ble Supreme Court held that Section 10A shall include defaults committed by corporate debtors arising on or after 25 March 2020.

5. Mohanraj and Ors. v. M/s Shah Brothers Ispat Ltd.

Citation: 2021 SCC OnLine SC 152

Decided on: 01.03.2021

An order of moratorium under Section 14 of the Insolvency and Bankruptcy Code, 2016 shall cover proceedings under Sections 138 and 141 of the Negotiable Instruments Act, 1881.

Brief Facts

The respondent in the instant matter supplied steel products to the corporate debtor (Corporate Debtor), for which the Corporate Debtor was required to pay INR 24,20,91,054. The Corporate Debtor issued several cheques favouring the respondent, all of which were returned dishonoured for insufficient funds. The respondent issued multiple statutory demand notices under Section 138 of the NI Act. Since the Corporate Debtor failed to pay the due amounts, criminal complaints were filed by the respondent against the Corporate Debtor and the appellants under Section 138 of the NI Act.

Thereafter, an application under Section 9 of the Insolvency and Bankruptcy Code, 2016 was filed by the respondent against the Corporate Debtor before the National Company Law Tribunal (NCLT). The NCLT passed an order admitting the application. The NCLT directed for the commencement of the Corporate Insolvency Resolution Process (CIRP), and a moratorium under Section 14 of the IBC was brought into effect. In pursuance of the order passed, the NCLT stayed further proceedings in the criminal complaints filed under the NI Act. The National Company Law Appellate Tribunal (NCLAT), in an appeal, set aside the order of the NCLT holding that Section 138 being a criminal law proceeding could not be deemed to be a "proceeding" within the meaning of Section 14 of the IBC.

In the present appeal before the Hon'ble Supreme Court of India, the moot question was whether the institution or continuation of a proceeding under Section 138/141 of the NI Act could be covered by a moratorium provision under Section 14 of the IBC.

Held

The Hon'ble Supreme Court rendered its findings on the instant matter under several heads, the relevant portions of which are summarised as follows:

1. The object of Section 14 of the IBC

The Hon'ble Supreme Court referred to the Report of the Insolvency Law Committee of February 2020 to state that the object of moratorium provision under Section 14 of the IBC is to see that there is no depletion of corporate debtor's assets during the insolvency resolution process so that it can continue as a going concern while maximising its value. A reference was also made to the decision in Swiss Ribbons (P) Ltd. v. Union of India² , wherein it was held that the primary focus of the legislation is to ensure revival and continuation of the corporate debtor by protecting the corporate debtor and its management from a corporate death by liquidation. The Hon'ble Supreme Court held that proceedings under Section 138 of the NI Act would deplete the corporate debtor's assets, directly impacting the CIRP in the same manner as the institution, continuation, or execution of a decree of a civil court. Based on this analysis, the Hon'ble Supreme Court observed that it was impossible to discern any difference between a suit's impact and a Section 138 proceeding under the NI Act.

2. Nature of Proceedings under Chapter XVI of the NI Act

The Hon'ble Supreme Court referred to the decision in Goaplast (P) Ltd. v. Chico Ursula D'Souza³ to hold that the object of provisions under Chapter XVI is to introduce an atmosphere of faith and reliance on the banking system to regulate payments made through cheques. Similarly, reliance was placed upon the decision in Vinay Devanna Nayak v. Ryot Sewa Sahakari Bank Limited⁴ to hold that the provisions contained in Sections 138 to 142 of the NI Act were intended to discourage people from not honouring their payments.

The Hon'ble Supreme Court, while commenting upon the nature of the offence under Section 138 of the NI Act, referred to the decision in Kaushalya Devi Massand v. Roopikishore Khore⁵ to hold that an offence under Section 138 is almost in the nature of a civil wrong which has been given criminal overtones. Similarly, in Meters and Instruments (P) Ltd. v. Kanchan Mehta,⁶ it was held that an offence under Section 138 is primarily a civil wrong. The Hon'ble Supreme Court observed that it is clear that a Section 138 proceeding can be said to be a "civil sheep" in "criminal wolf's" clothing.

Therefore, the Hon'ble Supreme Court concluded that proceedings under Sections 138 and 141 of the NI Act against a corporate debtor are covered by Section 14(1)(a) of the IBC.

6. Navinchandra Steels Pvt. Ltd. v. SREI Equipment Finance Ltd.

Citation: 2021 SCC OnLine SC 149

Decided on: 01.03.2021

Insolvency proceedings under Section 7 or 9 of the Insolvency and Bankruptcy Code, 2016 are maintainable even when a winding-up proceeding is pending against the corporate debtor under the Companies Act, 1956, or the Companies Act, 2013.

Brief Facts

In the instant matter, the appellant is the operational creditor (Appellant) of the second respondent, namely Shree Ram Urban Infrastructure Limited (SRUIL). The Appellant had some time in 2015, filed a winding-up petition under the Companies Act, 2013 (Companies Act) against SRUIL, which remains pending as of date before the Bombay High Court (High Court). Another winding-up petition under the Companies Act was filed by the third respondent (Action Barter) against SRUIL, which stood admitted and was also pending before the High Court.

In the meantime, the first respondent, namely SREI Equipment Finance Ltd. (SREI), filed a petition under Section 7 of the IBC before the NCLT, which was admitted by the NCLT on 6 November 2019. Action Barter preferred an appeal against the aforesaid NCLT order dated 6 November 2019, which the NCLAT dismissed after placing reliance upon the decision in Forech (India) Ltd. v. Edelweiss Assets Reconstruction Co. Ltd.⁷  An appeal was then filed by Action Barter against the decision of the NCLAT before the Hon'ble Supreme Court. The Appellant also filed an appeal which was tagged with the appeal filed by Action Barter. Pursuant to a settlement, Action Barter withdrew its appeal. Thus, the only surviving appeal was the one filed by the Appellant. The Appellant buttressed its case by relying upon the case in Action Ispat and Power Pvt. Ltd. v. Shyam Metalics and Energy Limited.⁸ The Appellant contended that the insolvency proceedings were not maintainable since irreversible steps had been taken in the winding-up petition before the Bombay High Court which was already admitted.

Held

The Hon'ble Supreme Court observed that the IBC is a special statute dealing with the revival of companies in the red, winding up only being resorted to if all revival attempts fail. When compared to the Companies Act, which is a general statute dealing with companies, the IBC is not only a special statute that must prevail in the event of a conflict but has a non-obstante clause contained in Section 238, which makes it evident that in case of conflict, the provisions of the IBC will prevail.

The Hon'ble Supreme Court observed that on a conspectus a catena of decisions⁹, it is clear that a petition under Section 7 or Section 9 of the IBC is an independent proceeding unaffected by winding up proceedings that may be filed qua the same company. Given the object sought to be achieved by the IBC, it is clear that only where a company in winding up is near corporate death that no transfer of the winding-up proceeding would then take place to the NCLT to be tried as a proceeding under the IBC. The Hon'ble Supreme Court held where the Court is short of a conclusion that corporate death is inevitable, every effort should be made to resuscitate the corporate debtor in the larger public interest. For the said reasons, the appeal was dismissed.

7. Gujrat Urja Vikas Nigam Ltd. v. Amit Gupta and Ors.

Citation: 2021 SCC OnLine SC 194

Decided on: 08.03.2021

Section 60(5)(c) of the Insolvency and Bankruptcy Code, 2016 endows a broad residuary jurisdiction upon the NCLT to decide all questions of law or fact arising out of or in relation to insolvency and liquidation of the corporate debtor.

Brief Facts

The present matter has its origin in a Power Purchase Agreement (PPA) entered into between Gujrat Urja Vikas Nigam Ltd. (GUVNL) and Astonfield Solar Gujrat Pvt. Ltd. (Corporate Debtor). As per the terms of the PPA dated 30 April 2010, GUVNL was required to purchase all power generated by the Corporate Debtor's solar power plant for 25 years. While the initial years of the PPA's operationalisation were relatively calm, the first significant issue arose between July to December 2015. The solar power plant was severely damaged due to floods, and the generation of electricity was temporarily paused. In similar circumstances, due to the harm caused by floods in June and July 2017, the solar power plant was only able to operate at 10 to 15 per cent of its original capacity. The financial distress caused by the disruption and damages led to the Corporate Debtor defaulting on its debt to the financing parties, i.e., the second respondent and Power Finance Corporation.

Consequently, the Corporate Debtor was declared as a Non-Performing Asset (NPA). Post the declaration of NPA, the Corporate Debtor approached the National Company Law Tribunal (NCLT) through a petition under Section 10 of the Insolvency and Bankruptcy Code, 2016 (IBC) to initiate the Corporate Insolvency Resolution Process (CIRP). The petition came to be admitted on 20 November 2018, and the NCLT appointed the Resolution Professional (RP) in February 2019.

The appellant issued two default notices (Default Notices) on 1 May 2019 stating that the Corporate Debtor undergoing CIRP under the IBC would amount to an event of default. The appellant called upon the Corporate Debtor to remedy this default failing which the appellant would terminate the PPA. On 21 May 2019, a meeting was scheduled between the Resolution Professional (RP) and the appellant wherein the RP emphasised that if the PPA were to be terminated, the Corporate Debtor's revival would be at stake since the prospective resolution applicants may not submit resolution plans. Declining to accede to this position, the appellant made it clear that it would be terminating the PPA.

In May 2019, the first and the second respondents filed applications under Section 60(5) of the IBC before the NCLT concerning the Default Notices sent by the appellant to the Corporate Debtor. On 29 August 2019, the NCLT issued its final order through which it allowed the applications filed by the first and the second respondents, thereby restraining the appellant from terminating the PPA. The NCLT held that the clauses of a PPA could not be placed above the provisions of the IBC. Moreover, the PPA was held to be an instrument as per the meaning of Section 238 of the IBC. Therefore, the clauses of the PPA, which are inconsistent with the provisions of the IBC, would stand overridden.

The NCLAT dismissed the appeal of the appellant filed against the NCLT order. It was noted that the appellant attempted to terminate the PPA on the sole ground that the CIRP has been initiated for the Corporate Debtor. Further, it restrained the appellant from terminating the PPA even in the event that the Corporate Debtor underwent liquidation. Aggrieved by the decision of the NCLAT, the appellant approached the Hon'ble Supreme Court on the ground that the NCLT and the NCLAT do not possess requisite jurisdiction under the IBC to adjudicate on a contractual dispute between the appellant and the Corporate Debtor. Hence, the present matter.

Held

The Hon'ble Supreme Court rendered its findings on several aspects as follows:

1. Jurisdiction of the NCLT and the NCLAT over contractual disputes

The Hon'ble Supreme Court observed that while construing Section 60(5), a starting point for the analysis must be to decipher parliamentary intent based on the object of the underlying enactment of the IBC. The decision in Swiss Ribbons (P) Ltd. v. Union of India¹⁰ was referred to highlight the problems that arose in the erstwhile regime due to the multiplicity of statutes and fora concerning corporate insolvency. The Supreme Court observed that the crucial objectives of IBC are to bring the insolvency law in India under a single unified umbrella with the object of speeding up the insolvency resolution process.

Keeping the objective of bringing IBC in mind, and while considering the text of Section 60(5)(c), it was observed that where matters pertaining to the corporate debtor's insolvency were concerned, no other forum has jurisdiction to entertain the same except the NCLT. Further, while interpreting Section 60(5)(c) in the current factual matrix, the Supreme Court observed that the PPA's termination had happened solely based on the initation of the insolvency proceedings against the Corporate Debtor. Thus, the present dispute "arises out of" and "relates to" the Corporate Debtor's insolvency, giving rise to the jurisdiction of NCLT and NCLAT.

2. Jurisdiction of NCLT and Gujarat Electricity Regulatory Commission (GERC)

The Hon'ble Supreme Court recognised that Section 86(1)(f) of the Electricity Act empowered the GERC to adjudicate the disputes between the power generating company (the Corporate Debtor in this case) and the distribution licensee. However, it was clarified that by virtue of Section 238, the IBC would override other laws, including an instrument such as the PPA.

3. Residuary jurisdiction of NCLT under Section 60(5)(c)

Commenting upon the residuary jurisdiction of the NCLT under Section 60(5)(c) of the IBC, the Hon'ble Supreme Court referred to a catena of decisions¹¹ to hold that the said section endows a broad residuary jurisdiction upon the NCLT to decide any question of law or fact arising out of or in relation to insolvency and liquidation under the IBC. It was also held that if the jurisdiction of the NCLT were confined to the actions mentioned under Section 14 of the IBC, there would be no requirement to enact Section 60(5)(c) of the IBC.

However, as a cautionary note, the Hon'ble Supreme Court clarified that the findings on the validity of the exercise of residuary power by the NCLT were premised on this case's facts and would not act as a general principle.

Thus, the Hon'ble Supreme Court held that the NCLT was empowered to restrain the appellant from terminating the PPA while dismissing the appeal.

8. Kalparaj Dharmshi and Anr. v. Kotak Investment Advisors Ltd. and Ors.

Citation: 2021 SCC OnLine SC 204

Decided on: 10.03.2021

The benefits of Section 14 of the Limitation Act 1963 are available to a party filing an application for initiation of the insolvency resolution process under the Insolvency and Bankruptcy Code, 2016 provided that such party had acted in a bona fide manner with due diligence.

Brief Facts

Ricoh India Ltd. (Corporate Debtor) filed an application on 29 January 2018 before the National Company Law Tribunal (NCLT) under Section 10 of the Insolvency and Bankruptcy Code, 2016 (IBC) for the initiation of the Corporate Insolvency Resolution Process (CIRP). The NCLT vide its order dated 14 May 2018 admitted the petition and directed certain statutory steps to be taken as a consequence thereof.

The Resolution Professional (RP), through a notification dated 9 July 2018, invited expression of interest (EoI) to submit a resolution plan from interested resolution applicants who fulfilled the minimum conditions stipulated in the EoI. The EoI was required to be submitted on or before 8 August 2018. The first Form 'G' required the resolution plans to be submitted on or before 21 September 2018. After a series, the fifth and last Form 'G' came to be issued on 11 December 2018, requiring the resolution plans to be submitted on or before 8 January 2019.

Kotak Investment Advisors Ltd. (KIAL) and another entity, namely Karvy Data Management Systems Ltd., submitted their respective resolution plans on 8 January 2019. Another resolution applicant, namely WeP Solutions Ltd., submitted its resolution plan jointly with one Sattva Real Estate Pvt. Ltd. on 13 January 2019. Kalpraj Dharamshi (Appellant) submitted its EoI and resolution plan to the RP on 27 January 2019. On 29 January 2019, KIAL sent an email to the RP raising its objection permitting the Appellant to submit the resolution plan beyond the prescribed time limit. In the meeting of the Committee of Creditors (CoC) held on 30 January 2019, the CoC resolved to direct all the applicants to submit their revised plans. Accordingly, an email was sent to KIAL directing it to submit the revised plan. Thus, KIAL submitted its revised plan on 1 February 2019. By another email dated 10 February 2019, KIAL once again objected to consideration of the plan submitted by the Appellant. In the meeting of CoC between 13 and 14 April 2019, the resolution plan of the Appellant was approved by a majority vote.

After the CoC approved the Appellant's resolution plan, the RP applied for the approval of the resolution plan before the NCLT on 18 February 2019. After coming to know about the RP's application for approval of the Appellant's resolution plan, KIAL filed an application objecting the resolution plan of the Appellant. The objection was on the ground that the RP was not justified in permitting the Appellant to submit a resolution plan beyond the date prescribed in Form 'G'. The NCLT approved the resolution plan of the Appellant through an order dated 28 November 2019. On the same date, the NCLT rejected the application filed by KIAL.

KIAL filed a writ petition before the Bombay High Court (High Court) challenging the two orders of the NCLT. The High Court dismissed the writ petition holding that KIAL had an alternate and efficacious remedy of filing an appeal before the NCLAT. KIAL thereafter filed an appeal before the NCLAT on 18 February 2020. The appeal was allowed by the NCLAT while setting aside the impugned orders of the NCLT dated 28 November 2019. Being aggrieved by the order of the NCLAT, four appeals were filed before the Hon'ble Supreme Court by various parties in the present dispute. Hence, the present matter.

Held

One of the moot questions in the instant matter was whether the appeals filed by KIAL before NCLAT were within limitation.

In facts of the present case, immediately after NCLT pronounced its judgment on 28 November 2019, KIAL had filed a writ petition before the High Court. The Hon'ble Supreme Court observed that the writ proceedings before the High Court were not a proceeding before a wrong court, as such.  Moreover, a perusal of the High Court's judgment and order would reveal that the said writ petition was hotly contested between the parties. KIAL had also made a specific averment that although an alternate remedy was available, KIAL invoked the writ jurisdiction since the question involved was also regarding the manner in which the NCLT exercised the jurisdiction. Hence, it could be clearly seen that KIAL was acting in a bona fide manner in good faith.

The Hon'ble Supreme Court held that in the absence of an express exclusion under the IBC, the conditions that enable a party to invoke the provisions of Section 14 of the Limitation Act, 1963 (Limitation Act) are very much available to KIAL. It was held that KIAL was acting in a bona fide manner in good faith. Therefore, the Hon'ble Supreme Court concluded that it had no hesitation to hold that KIAL was entitled to an extension of the limitation period during which it was bona fide prosecuting a remedy before the High Court with due diligence.

9. Arun Kumar Jagatramka v. Jindal Steel and Power Ltd. and Anr.

Citation: 2021 SCC OnLine SC 220

Decided on: 15.03.2021

A person who is ineligible under Section 29A of the Insolvency Bankruptcy Code, 2016 to submit a resolution plan is also barred from proposing a scheme of compromise and arrangement under Section 230 of the Companies Act, 2013.

Brief Facts

The instant matter decides three similar appeals. The first of the three appeals being decided is Civil Appeal No. 9664 of 2019. In the said case, the National Company Law Appellate Tribunal (NCLAT), by its judgment dated 24 October 2019, held that a person who is ineligible under Section 29A of the Insolvency Bankruptcy Code, 2016 (IBC) to submit a resolution plan is also barred from proposing a scheme of compromise and arrangement under Section 230 of the Companies Act, 2013 (Companies Act). The corporate debtor moved an application under Section 10 of the IBC before the NCLT, which came to be admitted. Mr. Arun Kumar Jagatramka submitted a resolution plan that was put to the vote in a meeting of the CoC. In the interim timeline, Section 29A was introduced into the IBC with retrospective effect providing a list of persons ineligible for becoming the resolution applicants. Mr. Arun Kumar Jagatramka became ineligible to submit a resolution plan. Mr. Arun Kumar Jagatramka then moved an application under Sections 230 to 232 of the Companies Act before the NCLT proposing a scheme of compromise and arrangement between the erstwhile promoters and creditors of the Corporate Debtor. The application was allowed by the NCLT, and a direction was issued for convening a meeting for approval of the scheme of compromise and arrangement. Jindal Steel and Power Ltd., an operational creditor of the corporate debtor, preferred an appeal against the order of the NCLT. The NCLAT allowed the appeal holding that promoters who are ineligible to propose a resolution plan under Section 29A of the IBC are not entitled to file an application for compromise and arrangement under Sections 230 to 232 of the Companies Act, 2013. The judgment and the order of the NCLAT are subject of the Civil Appeal No. 9664 of 2019.

The other two civil appeals being decided together with Civil Appeal No. 9664 of 2019 have the same moot question that is whether a promoter is eligible to file an application for compromise and arrangement in terms of Sections 230 to 232 of the Companies Act when he is ineligible under Section 29A of the IBC to submit a resolution plan.

Held

The Hon'ble Supreme Court referred to the Insolvency Law Committee's Report dated 3 March 2018, which states that the intent behind introducing Section 29A in the IBC was to prevent unscrupulous persons from gaining control over the affairs of the company. These persons include those who, by their misconduct, have contributed to the defaults of the company or are otherwise undesirable.¹² The Hon'ble Supreme Court observed that Section 29A was a crucial link in ensuring that the objects of the IBC are not defeated by allowing "ineligible persons", to return in the new avatar of resolution applicants. 

The Hon'ble Supreme Court then referred to the judgment in Arcelormittal India Pvt. Ltd. v. Satish Kumar Gupta and Ors.¹³ to reiterate that Section 29A is a typical instance of a see-through provision so that one can arrive at ineligible persons who are in actual control of the Corporate Debtor, whether jointly or in concert with other persons. A reference was also made to the decision in Swiss Ribbons (P) Ltd. v. Union of India¹⁴ wherein the Hon'ble Supreme Court upheld the vires of Section 35(1)(f) of the IBC, which refers to ineligibility in case of liquidation. Section 35(1)(f) is placed in the same continuum when the Court observes that the erstwhile promoters of a corporate debtor have no vested right to bid for the property of the corporate debtor in liquidation.

It was observed that the purpose of the ineligibility under Section 29A is to achieve a sustainable revival and to ensure that a person who is the cause of the problem either by a design or a default cannot be a part of the process of solution. The Hon'ble Supreme Court further observed that where a company is in liquidation under the provisions of the IBC, the submission of a compromise or arrangement under Section 230 has the common intrinsic elements of the revival of company and of binding nature as compared to a resolution plan.

Based on the above discussion, the Hon'ble Supreme Court concluded that the Parliament's prohibition in Section 29A and Section 35(1)(f) of the IBC must also attach itself to a scheme of compromise or arrangement under Section 230 of the Companies Act.

10. Sesh Nath Singh v. Baidyabati Sheoraphulli Co-operative Bank Ltd.

Citation: 2021 SCC OnLine SC 244

Decided on: 22.03.2021

The period of limitation for filing an application under Section 7 or 9 under the Insolvency and Bankruptcy Code, 2016 is three years from the date of accrual of the right to sue, that is, the date of default.

The condition precedent for condonation of delay under Section 5 of the Limitation Act, 1963 in filing an application or appeal is the existence of sufficient cause.

Brief Facts

The corporate debtor requested the financial creditor for a cash facility of INR 1,00,00,000 in pursuance of conducting the business of exporting textiles and garments. The financial creditor granted the cash credit facility (Cash Facility) on 15 February 2012. The corporate debtor duly executed a hypothecation agreement with the financial creditor on 17 February 2012. According to the financial creditor, in May 2012, the corporate debtor defaulted on debt repayment under the Cash Facility. The account of the corporate debtor was declared a Non-Performing Asset (NPA) on 31 March 2013. The financial creditor issued a notice to the corporate debtor under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). On 19 December 2014, the corporate debtor filed a writ petition before the Calcutta High Court (High Court) challenging the financial creditor's notice under the SARFAESI Act. During the pendency of the writ proceedings, the financial creditor filed an application under Section 7 of the Insolvency and Bankruptcy Code, 2016 (IBC) before the National Company Law Tribunal (NCLT) for the initiation of the Corporate Insolvency Resolution Process (CIRP) against the corporate debtor. The NCLT admitted the financial creditor's application under Section 7 of the IBC and initiated the CIRP. Being aggrieved by the order of the NCLT, the corporate debtor preferred an appeal before the NCLAT under Section 61 of the IBC, contending that the application under Section 7 of the IBC was barred by limitation.

The NCLAT examined the issue of limitation and held that the financial creditor had bona fide, within the period of limitation, initiated proceedings against the corporate debtor under the SARFAESI Act and was thus entitled to the exclusion of time under Section 14(2) of the Limitation Act. Hence, the present matter.

Held

The moot points outlined in the instant matter by the Hon'ble Supreme Court were as follows:

1. Whether delay beyond three years in filing an application under Section 7 of the IBC can be condoned in the absence of an application of delay made by the applicant under Section 5 of the Limitation Act?
2. Whether Section 14 of the Limitation Act applies to applications under Section 7 of the IBC? If so, is the exclusion time under Section 14 available only after the proceedings before the wrong forum terminate?

The Hon'ble Supreme Court turned to Section 238A of the IBC and held that the language of the provision was clear in stating that the Limitation Act shall "as far as may be" apply to proceedings or appeals before the NCLT and NCLAT. Section 238 essentially is an overriding provision that gives precedence to provisions of the IBC. The Hon'ble Supreme Court also noted that there is no specific period of limitation prescribed in the Limitation Act for an application under the IBC before the NCLT. Such an application that finds no particular provision dedicated to it in the Limitation Act would fall within the umbrage of Article 137 of the Limitation Act, which provides three years of limitation period. Therefore, the Hon'ble Supreme Court held that there could be no dispute that the period of limitation for making an application under Section 7 or 9 of the IBC is three years from the date of accrual of the right to sue, that is, the date of default.

The Hon'ble Supreme Court then examined a catena of decisions¹⁵ to conclude that the condition precedent for condonation of delay in filing an application or appeal is the existence of sufficient cause. The expression 'sufficient cause' should be construed liberally to advance substantial justice. The acceptance of an explanation furnished should be the rule and the refusal an exception when the defaulting party's application did not suffer from a lack of bona fides or negligence. The Hon'ble Supreme Court held that a plain reading of Section 5 of the Limitation Act made it amply clear that it was not mandatory to file an application in writing before relied could be granted to a party.  Applying the said principle, the Hon'ble Supreme Court held that the NCLAT was right in its judgment.

On whether Section 14 of the Limitation Act would be attracted to an application under Section 7 of the IBC, the Hon'ble Supreme Court reiterated the position through multiple case laws¹⁶ and observed that in the absence of any express provision in an enactment excluding the applicability of Section 14, a party was legitimately entitled to the exclusion of the time spent in bona fide prosecution of proceedings at the wrong forum. Therefore, the Hon'ble Supreme Court concluded that there could be little doubt that Section 14 applied to an application under Section 7 of the IBC. The Hon'ble Supreme Court held that Section 14 of the Limitation Act could not be construed in a narrow pedantic manner to mean that Section 14 can never be invoked until and unless the earlier proceedings have actually been terminated for want of jurisdiction or other cause of such nature. To sum up, the Hon'ble Supreme Court held that the outer limit to claim exclusion under Section 14 of the Limitation Act would be when the proceedings ended.

11. Jaypee Kensington Boulevard Apartments Welfare Association and Ors. v. NBCC (India) Ltd. & Ors.

Citation: 2021 SCC OnLine SC 253

Decided on: 25.03.2021

In the adjudicatory process concerning a resolution plan under the Insolvency and Bankruptcy Code 2016, there is no scope for interference with the commercial aspects of the Committee of Creditors' decision by the authority

If the adjudicating authority finds any shortcoming in the resolution plan vis-à-vis the specified parameters under the Insolvency and Bankruptcy Code 2016, it would only send the resolution plan back to the Committee of Creditors for re-submission after satisfying such parameters.

Brief Facts

The present matter reached the Hon'ble Supreme Court after several bouts of litigation amongst various stakeholders involved in the insolvency resolution proceedings surrounding Jaypee Infratech Ltd. (Corporate Debtor). In the instant matter, a resolution plan submitted by NBCC (India) Ltd. was approved by the Committee of Creditors (CoC) on 17 December 2019 by a vast majority of over 97 per cent of voting share of the financial creditors. The interim resolution professional on 19 December 2019 moved an application before the National Company Law Tribunal (NCLT) for submission and approval of the resolution plan in terms of Section 30(6) read with Sections 31 and 60(5) of the Insolvency and Bankruptcy Code, 2016 (IBC). The NCLT vide order dated 3 March 2020 proceeded to approve the resolution plan with some modifications and certain directions. The resolution applicant NBCC preferred an appeal against the order of the NCLT before the National Company Law Appellate Tribunal (NCLAT), wherein in an interim order dated 22 April 2020, it was held that the approved resolution plan may be implemented subject to the outcome of the appeal. Subsequently, several parties whose appeals were pending before the NCLAT approached the Hon'ble Supreme Court and prayed that the appeals be withdrawn from the NCLAT to be heard by the Hon'ble Supreme Court along with other pending appeals of the associations and homebuyers to avoid the likelihood of further delay in the matter.

Held

The Hon'ble Supreme Court, commenting upon the scope of interference with the commercial wisdom of CoC held that the adjudicating authority had limited jurisdiction in the matter of approval of a resolution plan, which is well-defined and circumscribed by Sections 30(2) and 31 of the Code.

It was held that in the adjudicatory process concerning a resolution plan under IBC, there is no scope for interference with the commercial aspects of the decision of the CoC; and there is no scope for substituting any commercial term of the resolution plan approved by the CoC. If, within its limited jurisdiction, the adjudicating authority finds any shortcoming in the resolution plan vis-à-vis the specified parameters, it would only send the resolution plan back to the CoC for re-submission after satisfying the parameters delineated by the IBC and exposited by the Hon'ble Supreme Court.

The Hon'ble Supreme Court held that the net result of the discussion and findings was that some of the terms and stipulations of the resolution plan of NBCC do not meet with approval. Although, barring such terms and stipulations, all other terms and propositions of the resolution plan stand approved.

The Hon'ble Supreme Court concluded that taking all the facts and circumstances into account and keeping with the spirit and purport of the orders passed in the past, it was inclined to exercise the powers under Article 142 of the Constitution of India.  The Hon'ble Supreme Court decided to enlarge the time for completion of CIRP concerning the Corporate Debtor while extending the opportunity to the resolution applicants to submit modified resolution plans, which were compliant with the instant judgment, the requirements of the IBC and the allied regulations.

12. Laxmi Pat Surana v. Union Bank of India

Citation: 2021 SCC OnLine SC 267

Decided on: 26.03.2021

Action under Section 7 of the Insolvency and Bankruptcy Code, 2016 will lie against the guarantor, which is a corporate person, even though the defaulting principal borrower may not be a corporate person.

In law, the guarantor's status, who is a corporate person, changes into a corporate debtor the moment the principal borrower (regardless of not being a corporate person) commits default in payment of a debt that had become due and payable.

Brief Facts

The first respondent (Financial Creditor) extended a credit facility to a proprietary firm of the appellant (Principal Borrower) through two loan agreements in 2007 and 2008. Surana Metals Ltd. (Corporate Debtor), of which the appellant is a promoter, had offered a guarantee to the two loan accounts of the Principal Borrower. The stated loan accounts were declared as Non-Performing Assets (NPA) on 30 January 2010. The Financial Creditor filed an application under Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (RDDBFI Act) against the Principal Borrower before the Debts Recovery Tribunal (DRT). During the pendency of the Financial Creditor's stated action, the Principal Borrower repeatedly assured to pay outstanding amounts. However, as the commitment remained unfulfilled, the Financial Creditor eventually wrote to the Corporate Debtor on 3 December 2018 in the form of a notice of payment under Section 4(1) of the Insolvency and Bankruptcy Code, 2016 (IBC). The Corporate Debtor clarified that it was not the Principal Borrower nor owed any financial debt to the Financial Creditor and had not committed any default in repayment of alleged outstanding amounts.

The Financial Creditor then proceeded with an application under Section 7 of the IBC before the National Company Law Tribunal (NCLT) to initiate the Corporate Insolvency Resolution Process (CIRP). The NCLT held that the action had been initiated against the Corporate Debtor being co-extensively liable to repay the Principal Borrower's debt. The appellant then moved an appeal to the NCLAT, which was again rejected. Aggrieved by the decision of the NCLAT, the appellant filed the instant appeal. Hence, the present matter.

Held

The Hon'ble Supreme Court, at the outset, reiterated the position in law that the guarantor's liability is coextensive with that of the principal borrower. The guarantor's status, who is a corporate person, transforms into that of a corporate debtor the moment the principal borrower commits default under the IBC.

The Hon'ble Supreme Court then took note of the term "corporate guarantor" as defined in Section 5(5A) of the IBC to hold that the principal borrower may or may not be a corporate person. However, if a corporate person extends a guarantee for the loan transaction concerning a principal borrower not being a corporate person, it would still be covered within the meaning of the expression "corporate debtor" in Section 3(8) of the IBC. If the legislature had intended to exclude a corporate person from being a guarantor in respect of a loan secured by a person not being a corporate person, from the expression "corporate debtor" occurring in Section 7, it would have provided so in the IBC. Hence, the Hon'ble Supreme Court upheld the decision of the NCLT further approved by the NCLAT in this case and dismissed the present appeal.

The authors wish to acknowledge the research assistance rendered by Harshvardhan Korada, a student of the Amity Law School, Delhi.

Footnotes

1 Swiss Ribbons (P) Ltd. v. Union of India, (2019) 4 SCC 17.

2 Swiss Ribbons (P) Ltd. v. Union of India, (2019) 4 SCC 17.

3 Goaplast (P) Ltd. v. Chico Ursula D'Souza, (2003) 3 SCC 232.

4 Vinay Devanna Nayak v. Ryot Sewa Sahakari Bank Ltd., (2008) 2 SCC 305.

5 Kaushalya Devi Massand v. Roopikishore Khore, (2011) 4 SCC 593.

6 Meters and Instruments (P) Ltd. v. Kanchan Mehta, (2018) 1 SCC 560.

7 Forech (India) Ltd. v. Edelweiss Assets Reconstruction Co. Ltd., (2019) 18 SCC 549.

8 Action Ispat and Power Pvt. Ltd. v. Shyam Metalics and Energy Ltd., Civil Appeal No. 4041 of 2020.

9 Allahabad Bank v. Canara Bank, (2000) 4 SCC 1; Bakemans Industries (P) Ltd. v. New Cawpore Flour Mills, (2008) 15 SCC 1.

10 Swiss Ribbons (P) Ltd. v. Union of India, (2019) 4 SCC 17.

11 Essar Steel India Limited v. Satish Kumar Gupta, (2020) 8 SCC 531; Remdeo Chauhan v. Bani Kant Das, (2010) 14 SCC 209; D.R. Kohli v. Atul Products Ltd., (1985) 2 SCC 77; Johri Lal Soni v. Bhanwari Bai, (1977) 4 SCC 59.

12 Chitra Sharma v. Union of India, 2018 18 SCC 575; Arcelormittal India Pvt. Ltd. v. Satish Kumar Gupta and Ors., 2019 2 SCC 1.

13 Arcelormittal India Pvt. Ltd. v. Satish Kumar Gupta and Ors., 2019 2 SCC 1.

14 Swiss Ribbons (P) Ltd. v. Union of India, (2019) 4 SCC 17.

15 B.K. Educational Services Private Limited v. Parag Gupta and Associates, 2019 11 SCC 633, Ramlal Motilal and Chhotelal v. Rewa Coalfields Ltd., AIR 1962 SC 361; Krishna v. Chattappan, 1890 ILR Mad 269; Shakuntla Devi Jain v. Kuntal Kumar, AIR 1969 SC 575; State of West Bengal v. Administrator Howrah Municipality and Others, 1972 1 SCC 366.

16 State of Goa v. Western Builders, 2006 6 SCC 239; Union of India v. Popular Construction Co., 2001 8 SCC 470; Consolidated Engineering Enterprises v. Principal Secretary, Irrigation Department and Ors., 2008 7 SCC 169; Commissioner, M.P. Housing Board and Ors. v. Mohanlal & Co., 2016 14 SCC 199.

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