QUERIES (Session-1) - ONLINE INTERNSHIP PROGRAMME BY MUKHERJI LAW ASSOCIATES IN ASSOCIATION WITH DROIT PENALE GROUP
THE QUERIES CONCERNING, SESSION-1 OF THE ONLINE INTERNSHIP PROGRAMME BY MUKHERJI LAW ASSOCIATES IN ASSOCIATION WITH DROIT PENALE GROUP
Each query was taken up by Sushmita
Mukherji, Managing Partner and answered accordingly. To maintain the brevity the
tense of neither the queries nor the answer is changed.
A. You have been given a
problem where you have to draft a demand notice from the side of the
operational creditor. The format for drafting the demand notice is given in
Form 3. This is as per Clause (a) of sub-rule (1) of Rule 5 of Insolvency and
Bankruptcy (Application to adjudicating Authority) Rules, 2016. The same is
easily available online.
Qr.2 What was the name of the form mentioned where I can
find the format for drafting the demand notice?
A. The
format for drafting the demand notice is given in Form 3. This is as per Clause
(a) of sub-rule (1) of Rule 5 of Insolvency and Bankruptcy (Application to
adjudicating Authority) Rules, 2016. They are very easily available on the
internet.
Qr.3 Can u please provide a Sample of both the demand notice?
A. The
format for drafting the demand notice is given in Form 3. This is as per Clause
(a) of sub-rule (1) of Rule 5 of Insolvency and Bankruptcy (Application to
adjudicating Authority) Rules, 2016. They are very easily available on the
internet. There is no format of demand notice. The only thing which has to be
kept in mind is that you have to raise a dispute in the demand notice which is
not vague. While drafting the reply just keep in mind the ingredients provided
in the relevant section of the code as already mentioned in the session.
Qr.4 Is Section 5 (8) (e) anyway relatable to Section 5
(21)?
A. No
it is not. Though it might appear to be so the law is clear and there are many
judgments to this effect. After the enforcement of the Code, there were several
attempts by different types of creditors to categorize themselves either as a
financial creditor or an operational creditor in order to exercise the right to
initiate CIRP against the Corporate Debtor (as set out below). It can be seen
in the case of Overseas Infrastructure Alliance (India) Pvt. Ltd vs Kay Bouvet
Engineering Ltd. Company Appeal (AT) (Insolvency) No. 582 of 2018 dated
21.12.2018 (NCLAT). Wherein NCLAT proceeded to settle the status of a creditor
who has advanced certain sums of money to a corporate debtor under a contract
for the provision of services as an operational creditor.
Qr.5 How we have to draft is there any format? And what do
we exactly have to do which is given to us in the assignment?
A. The
format for drafting the demand notice is given in Form 3. This is as per Clause
(a) of sub-rule (1) of Rule 5 of Insolvency and Bankruptcy (Application to
adjudicating Authority) Rules, 2016. The same is easily available online. There
is no format of demand notice. The only thing which has to be kept in mind is
that you have to raise a dispute in the demand notice which is not vague. While
drafting the reply just keep in mind the ingredients provided in the relevant
section of the code as already mentioned in the session.
Qr. 6 What is form 3 which mam told us?
A. The
format for drafting the demand notice is given in Form 3. This is as per
Clause (a) of sub-rule (1) of Rule 5
of Insolvency and Bankruptcy (Application to adjudicating Authority) Rules,
2016. The same is easily available online. There is no format of demand notice.
The only thing which has to be kept in mind is that you have to raise a dispute
in the demand notice which is not vague. While drafting the reply just keep in
mind the ingredients provided in the relevant section of the code as already
mentioned in the session.
Qr. 7 What were the forms that ma'am
mentioned? If you could tell the form names and that what are they for. Or if
you could tell where can I find all the details regarding it. Also can you elaborate COC, or that where can I read about it?
It's members, function, etc.
A: The format for drafting the demand
notice is given in Form 3. This is as per Clause (a) of sub-rule (1) of Rule 5
of Insolvency and Bankruptcy (Application to adjudicating Authority) Rules,
2016. The same is easily available online. There is no format of demand notice.
The only thing which has to be kept in mind is that you have to raise a dispute
in the demand notice which is not vague. While drafting the reply just keep in
mind the ingredients provided in the relevant section of the code as already
mentioned in the session.
COC is the Committee of
Creditors. Only Financial Creditors can be part of the COC. Operational
Creditors cannot be part of COC. Once an application is moved preferred before
NCLT for initiation of the Insolvency process, the Adjudicating Authority shall
have to decide the ‘existence of dispute’ within 14 days. Thereafter COC will
be constituted for making decisions regarding insolvency resolution. The COC
may either decide for restructuring the debtor's debt for preparing a
resolution plan or ask for liquidation of the debtor’s assets. The COC shall
then appoint an Interim Resolution Professional for coming up with a resolution
plan. It is the COC’s job to then either accept the resolution plan or reject
it. In case it is rejected the company goes for liquidation, thereby putting an
end to the company. You can read the bare provisions from the I.B Code, 2016.
Qr. 8 Name of
the forms mentioned in the session.
A: The format for drafting the demand
notice is given in Form 3. This is as per Clause (a) of sub-rule (1) of Rule 5
of Insolvency and Bankruptcy (Application to adjudicating Authority) Rules,
2016. The same is easily available online. There is no format of demand notice.
The only thing which has to be kept in mind is that you have to raise a dispute
in the demand notice which is not vague. While drafting the reply just keep in
mind the ingredients provided in the relevant section of the code as already
mentioned in the session.
Comments
Post a Comment