TaxTMI 
2026 (11) TMI 450
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....this petition, by order dated 25.09.2026, the Tribunal has admitted the petitions which has culminated into initiation of CIRP and order of appointment of Interim Resolution Professional under the Insolvency and Bankruptcy Code, 2016, the petitioner has orally advance argument challenging legality, validity and propriety of such proceedings. 2. In order to appreciate the controversy raised in the petition, it would be appropriate to consider the relevant facts as can be gathered from the record. 2.1. It is pleaded that a loan agreement was entered on 15th March, 2024, between M/s. Takshashila Resicom Private Limited, M/s.Takshashila Developers Private Limited and M/s. Takshashila Corporation LLP (petitioners no. 1, 2, and 3) with M/s. Sheth Fincap Services Private Limited (respondent no. 1), whereby, a loan amount of Rs. 11 crores was disbursed by the respondent no. 1 in favour of petitioner no. 3. On 22nd March 2024, the aforesaid loan amount was deposited by respondent no. 1 in the bank account of petitioner No. 3 company. In this regard, a deed of mortgage was also registered in favour of respondent no. 1 by petitioner nos. 1 to 3 offering 38 units for the purpose of secur....
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....ner no. 5 also moved the Hon'ble High Court of Judicature at Bombay on 27th March 2026 by submitting anticipatory bail application bearing no. 822 of 2026. 2.6. On the other hand, the National Company Law Tribunal, Ahmedabad proceeded to initiate the personal insolvency resolution process against petitioner no. 4 by passing an order dated 16th March 2026 in Company Petition (IB) No. 188 of 2025. On the same day, appropriate orders were also passed in Company Petition (IB) No. 189 of 2025 against petitioner no. 5. On 18th April, 2026, respondent no. 1 lodged its claim before Resolution Professional appointed in insolvency process filed against petitioner nos. 4 and 5 in relation to personal insolvency resolution process for the same debt. 2.6. The petitioners have also preferred a writ petition before the High Court of Bombay seeking the quashing of the FIR, which was registered as Writ Petition No. 3238 of 2026 on 23rd April, 2026. In Company Petition (IB) No. 192 of 2026 preferred by M/s. Sheth Fincap Service Private Limited under Section 7 of the Insolvency and Bankruptcy Code, 2016 and other allied matters against M/s. Takshashila Recicom Private Limited and others,....
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.... the insolvency process. It was submitted that once the resolution professional is appointed and the company is subject to CIRP, neither the company or its directors can prefer any proceedings on its own and it is the resolution professional who is authorised to pursue any proceedings before any Court of law. 3.1 Secondly, referring to the first affidavit in reply dated 21.10.2026 filed by the respondent no. 1, it was submitted that considering the nature of the relief sought for, an efficacious remedy of appeal is available to the petitioner inasmuch as the appeal would lie before the National Company Law Appellate Tribunal (in short, 'NCLAT') in view of the provisions of the IBC Code. He has further submitted that in fact the Company Appeal (INS) No. 1902 of 2026 has already been preferred by the petitioners before the National Company Law Appellate Tribunal, Principal Bench, New Delhi. In this regard, the learned Senior Advocate has referred to the order dated 14th October 2026 passed by the Appellate Tribunal, which is produced on record at page 809. He has further submitted that Section 61 of the Code provides for a right of appeal to any person aggrieved by the order of th....
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....on of the chronology of events, it is evident that despite sufficient opportunity being granted to the petitioners, till date the petitioners have failed to deposit the principal amount though being directed. In this regard, the attention of the Court was invited to the order passed by the High Court of Bombay in anticipatory bail proceedings, whereby the petitioners on his own had undertaken to deposit a substantial amount of Rs. 4,28,00,000/-. However, on the next date of hearing, an extension of time was sought to do the needful and according to him, till date the petitioners have failed to adhere to such an undertaking. It was further submitted that in fact the order dated 14th October, 2026 passed by the NCLAT is perused, the Court recorded the submission of the appellant, who had shown his willingness to deposit a demand draft of Rs. 4 crores with the Registry, and a prayer was sought before the NCLAT against the Resolution Professional not to proceed with the insolvency process. The Appellate Tribunal, having heard the learned counsel for the respective parties and having perused the record, found that the appellant's proposition had not been accepted by the financial cr....
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...., the adjudicating authority under Section 7 of the IBC could not be permitted to invoke or exercise its power merely as a substitute for ordinary debt recovery proceedings. He has therefore submitted that Respondent No. 1 could not be permitted to employ insolvency jurisdiction as a coercive mechanism for the recovery of the alleged outstanding amount. Inviting the attention of this Court to the unreasonable escalation in the amount claimed by preferring recovery proceedings before the Tribunal, the learned advocate pointed out that the amount outstanding as quantified by the respondent in the FIR dated 18th September, 2025 was admittedly Rs. 5,23,00,000/-, whereas in the subsequent proceedings initiated under Section 7 of the IBC Code, Respondent No. 1 claimed a total amount of Rs. 7,40,33,665/-. He has therefore, submitted that the alleged liability of Rs. 2,17,33,665/- within a term period of hardly 8 months suggests that, apart from seeking recovery of outstanding debt, Respondent No. 1 has also sought recovery of interest levied, penal charges, and cheque bounce charges, which in fact results in 50% per annum on the principal amount, representing a highly disproportionate esc....
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.... attention of the Court was invited to the decision of the Hon'ble Supreme Court in the case of Surya Dev Rai vs. Ram Chander Rai and Others reported in (2003) 6 SCC 675. It was submitted that the question arose before the Supreme Court was whether an aggrieved person is completely deprived of the remedy of the judicial review, if he has lost at the hands of original Court and the Appellate Court, though a case of gross failure of justice have been occasioned. The Hon'ble Supreme Court after considering the effect erstwhile clause (b) of the proviso being deleted from Section 115 of the Code of Civil Procedure and a new proviso being inserted, observed that the constitutional jurisdiction of High Court to issue writ of certiorari nor the powers of superintendence under Article 227 is whittled away untrammeled by such amendment in Section 115 of the Code of Civil Procedure. 6. Learned advocate Mr. Seth has once again referred to the prayers sought in the present petition. At this stage, the attention of this Court was invited to the Additional affidavit dated 27.09.2026 placed on record from page no. 555 onwards. He has emphasized the fact that the petition is not confined to the....
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.... fact, the Hon'ble Supreme Court in the case of Nitendra Kumar Tomar Vs. Eunox SPA, neutral citation: 2026 INSC 356, has held that an appeal filed directly in the name of the corporate debtor by a suspended director after CIRP commencement is void and incompetent from inception. In such circumstances, noticing the fact that the petition is filed not only by the companies facing insolvency but by its erstwhile directors in their individual capacity, the petition is held maintainable. 9. So far as the case of the petitioners are concerned and the preliminary objection raised by the respondent no. 1, it is an undisputed fact that the petitioners have approached before the National Company Law Appellate Tribunal under Section 61 of the Insolvency and Bankruptcy Code. Such appeal is pending consideration as can be gathered from the order dated 14th October, 2026 produced on record at page 809. Having noted the aforesaid undisputed facts, the subliminal question which arises in the peculiar facts of the case is as to whether the availability of statutory remedy of appeal would operate as an absolute bar to the maintainability of the writ petition preferred under Article 226 of the Con....
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....e if they do not meet the legal criteria of the term "financial debt" as provided under Section 2(8) of the Insolvency and Bankruptcy Code, 2016. As rightly pointed out by the learned advocate for the petitioner, the Hon'ble Supreme Court in the case of Swiss Ribbons Vs. Union of India, reported in (2019) 4 SCC 17, has established that the RP only has administrative powers to verify and collate claims. The RP does not possess quasi-judicial or adjudicatory authority. However, if the penal charges are unverified, unsubstantiated by the underlying loan agreement or the necessary calculations with regard to such a claim are missing, the RP can certainly refuse to admit such a specific portion of the claim. 12. According to Section 3(11) of the IBC, "debt" is defined as a liability or obligation in respect of a claim which is due from any person. As per the definition of the term "financial debt" as provided under Section 5(8) of the IBC Code, the debt must be disbursed against the " time value of money". It is required to be noted that the question with regard to the contractual penal interest or penal charges applied due to default on a financial loan are generally accepted as....