TIER-1

  Shubham Budhiraja [1] A married B and a child are born out of wedlock. While child was 2 months old, Husband B died. A married C and changed the surname of child with that of new father C. Biological Grandparents of Child petition under Guardianship act seeking them self as Guardian of Child. The trial court dismissed the petition calling mother as natural guardian. The High Court in appeal directed the mother to change the surname of child to that of deceased biological father. Hon'ble Supreme Court held that mother is a natural guardian. She can give the child in adoption and can decide the surname of child. It is not in child interest to keep the surname of biological father when he is given in adoption to a new father and has joined a new family. [2]   (I)                  In the case of Githa Hariharan and Ors. vs. Reserve Bank of India and Ors., Hon’ble Court observed the mother to ...

  Shubham Budhiraja [1] A took a Loan from Bank and defaulted. B issued notice under  SARFAESI  and took symbolic possession of property. To get physical possession, it filed application under section 14 to take help of DM/CMM. Aggrieved by delay in deciding this application, Bank filed writ in High Court wherein CMM cited that due to long pendency of cases, it is not practical to decide the application within 30 days. HC held that DM/CMM can take assistance of ADM/ ACMM. A challenged the order. Hon'ble Supreme Court affirmed the High Court view and held that (I) under CRPC, both CMM and ACMM are of equal rank so far as judicial power are concerned, (II) Section 14 Application require no application of mind. It's executory and ministerial act. Hence, Section 14 Application can be filed and decided by ADM / ACMM. [2]   (I)                  The step to be taken by the CMM/DM under ...

    Hon’ble IBBI In the matter of Mr. Yogesh Kumar Gupta, No. IBBI/DC/109/2022 dated 01/07/2022 held that the Code/Regulations do not envisage removal of any CoC member on non-payment of CIRP cost. This is blatant violation of the provisions of the Code and Regulations made therein. If such kind of action is permitted, then RPs would abuse their powers by removing CoC members. Hence, DC finds that Mr. Gupta has violated section 21(2) of the Code

                                                                                                                                                                                                                                    Shubham Budhiraja [1] A took marine Insurance from B. The Ship sank and A filed its claim. National Consumer Disputes Redressal Forum (NCDRC) allowed the claim relying on statements of crew members of ...

  Shubham Budhiraja [1] A, electricity company, had an award from APTEL of Rs.1000 crore in its favor but same is being challenged at Supreme Court. Meantime, B, Bank, filed section 7 IBC against A for default of 500 crore. A filed M.A application seeking stay of IBC till Supreme Court decide APTEL appeal. The NCLT and NCLAT dismissed the M. A on reason that Section 7(5) only requires debt as due and payable and other factors irrelevant. The Supreme Court held that discretion given is too exercised considering all factors to ensure viability of company. Section 7(5) discretion cannot be exercised arbitrarily. [2]   (i)                   The Appellate Authority (NCLAT) erred in holding that the Adjudicating Authority (NCLT) was only required to see whether there had been a debt and the Corporate Debtor had defaulted in making repayment of the debt, and that these two aspects, if satisf...

  Shubham Budhiraja [1] [1] Advocate, Delhi High Court [ACS, LLB, BCOM(H)], ShubhamBudhiraja02@gmail.com   A Hotel granted license in favor of B to run the shops in accordance with License Agreement, A revoked the license after serving revocation notice. B filed suit for seeking declaration that license is irrevocable, A opposed the suit by filling section 8 application stated that there is pre-existing arbitration clause. B realized that A had created few mortgage in favor of Banks. B filed application to (a) amend the prayer clause in suit to declare mortgage as void, (b) to add banks as party to the suit. The High Court allowed the applications. Hon’ble Supreme Court set aside the High Court order and held that if, by permitting plaintiffs to amend the plaint including a prayer clause nature of the suit is likely to be changed; in that case, the Court would not be justified in allowing the amendment. It would also result in misjoinder of causes of action. A...

    A was appointed as Resolution Professional of PQR Limited. Transactional auditor pointed out some avoidance transaction and thus suggested A to file the avoidance application before NCLT. In the meantime, B, suspended director, filed application challenging the constitution of COC. A submitted that since the very constitution of the COC in question, the proprietary demand to keep such application on hold till the order in the reserved matter is pronounced. IBBI disciplinary committee held the Code and regulation 35A of the CIRP regulations clearly specify that onus of filing avoidance transaction rests with the RP. For filing the same, CoC’s permission is neither necessary nor a pre-condition . [1]     [1] No. IBBI/DC/111/2022, dated 05/07/2022