TEAM CODE – TC 06

II SURANA & SURANA AND UPES SCHOOL OF LAW

NATIONAL INSOLVENCY LAW MOOT COURT COMPETITION, 2019

BEFORE

THE NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI

IN THE MATTER OF –

IB / ____ / 2019

TRADE UNION v. WEEKND AIRLINE PVT LTD

KAILASH BANK AND ORS v. SURESH RATH, RESOLUTION PROFESSIONAL &ANR

INDIAN CREDITORS v. MS. OLIVIA

NARESH SINGHVI v. SURESH RATH, RESOLUTION PROFESSIONAL

(APPLICANTS) (RESPONDENTS)

MEMORIAL FOR APPLICANTS

TABLE OF CONTENTS

LIST OF ABBREVIATIONS ........................................................................................... III

LIST OF AUTHORITIES .............................................................................................. VII

STATEMENT OF JURISDICTION ............................................................................. XIII

STATEMENT OF FACTS ............................................................................................ XIV

STATEMENT OF ISSUES ..............................................................................................XV

SUMMARY OF ARGUMENT ...................................................................................... XVI

ARGUMENTS ADVANCED ............................................................................................. 1

I. THE APPLICATION FILED UNDER INSOLVENCY AND BANKRUPTCY

CODE, 2016 IS ADMISSIBLE........................................................................................ 1

A. THE REQUIREMENTS PRESCRIBED UNDER §.4 R/W §. 6 ARE SATISFIED. ........................ 1

i. Weeknd has defaulted on its debt. ........................................................................ 1

ii. Weeknd is a Corporate Debtor. ........................................................................... 2

iii. The default is of more than the minimum requirement of INR 1 lakh. ................... 2

B. WEEKND OWES AN OPERATIONAL DEBT. ................................................................... 2

C. TRADE UNION HAS FILED THE APPLICATION ON BEHALF OF AN OPERATIONAL

CREDITOR....................................................................................................................... 3

D. A VALID DEMAND NOTICE HAS BEEN DELIVERED TO WEEKND. .................................. 3

II. THE CLAIMS OF KAILASH BANK AND BANK OF DEHRADUN CAN BE

ADMITTED BY THE RP/ COC. .................................................................................... 4

III. THE RP/COC IS NOT RIGHTFUL IN DENYING FINANCIAL DEBT OF RSJ

BANK. .............................................................................................................................. 5

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[TABLE OF CONTENTS] Page | II

A. WEEKND’S LIABILITY IS COEXTENSIVE WITH WEEKND PRODUCTION’S LIABILITY. ..... 5

B. RSJ BANK HAS A MATURED CLAIM AGAINST WEEKND. ............................................. 6

C. IN ARGUENDO, UNMATURED CLAIM OF RSJ BANK CAN BE ADMITTED IN THE CIRP. .... 7

IV. THE DIRECTORS OF WEEKND CANNOT BE HELD PERSONALLY

LIABLE FOR FURNISHING CURRENT ASSETS OF WEEKND AS SECURITY. ...

............................................................................................................................... 8

A. WEEKND’S DIRECTORS ACTED IN ACCORDANCE OF§. 185(3)(C). ................................ 8

B. §. 66(2) OF THE CODE IS NOT VIOLATED. ................................................................... 9

V. MR. VIKAS CAN ENFORCE HIS CONTRACTUAL RIGHTS. .......................... 9

VI. MS. OLIVIA’S APPLICATION FOR RECOGNITION OF US VOLUNTARY

BANKRUPTCY PROCEEDING SHOULD NOT BE ACCEPTED. .......................... 10

A. US PROCEEDINGS IS NOT A FOREIGN MAIN PROCEEDING. ......................................... 11

B. SHIFT OF AHSB IS AGAINST THE PUBLIC POLICY OF INDIA. ...................................... 12

VII. THERE CANNOT BE TWO CONCURRENT INSOLVENCY PROCEEDING

IN DIFFERENT JURISDICTIONS. ............................................................................ 13

VIII. UPON ADMISSION OF CIRP THE INVOCATION OF PERSONAL

GUARANTEE BY BANK OF DEHRADUN IS NOT LIABLE TO BE SET ASIDE.....

............................................................................................................................. 13

IX. MR. NARESH SINGHVI CAN BE ALLOWED TO PRESENT THE PLAN AS

A SCHEME, IN CASE THE CORPORATE DEBTOR GOES INTO LIQUIDATION.

............................................................................................................................. 14

PRAYER .......................................................................................................................XVII

MEMORIAL for APPLICANTS Surana & Surana and UPES National Insolvency Moot, 2019
[LIST OF ABBREVIATIONS] Page | III

LIST OF ABBREVIATIONS

AIR All India Reporter

SCALE Supreme Court Almanac

CA Company Appeals

CIRP Corporate Insolvency Resolution Process

IB Insolvency Board

NCLAT National Company Law Appellate Tribunal

NCLT National Company Law Tribunal

SC Supreme Court

SCC Supreme Court Cases

TaxPub Tax Publication

Mah Maharashtra

Ker Kerala

Del Delhi

Guj Gujarat

Kar Karnataka

CLJ Company Law Journal

Cal Calcutta

Civ Civil

UNCITRAL United States Commission on International Trade Law

Ed Edition

r/w read with

ILR Insolvency Law Report

SCALE Supreme Court Almanac

MEMORIAL for APPLICANTS Surana & Surana and UPES National Insolvency Moot, 2019
[LIST OF ABBREVIATIONS] Page | IV

CLA Corporate Law Advisor

CompCas Company Cases

SCL SEBI and Corporate Laws

BC Banking Cases

SCR Supreme Court Reporter

UKSC Supreme Court of United Kingdom

AC Appeal Cases

Edn Edition

UKPC United Kingdom Privy Council Decisions

DLT Delhi Law Times

NY New York

BR Bankruptcy Reporter

SDNY Southern District New York

ER England Reports

Ch Chancery Division

VSC Supreme Court of Victoria

ECR European Court Reports

ECWA England and Wales Court of Appeal

WLR Weekly Law Reports

EWHC High court of England and Wales

FCA Financial Conduct Authority

CompLJ Company Law Journal

LLJ Labour Law Journal

QB Queen’s Bench

MEMORIAL for APPLICANTS Surana & Surana and UPES National Insolvency Moot, 2019
[LIST OF ABBREVIATIONS] Page | V

F Supp Federal Supplement

SCR Solicitor’s Completion Requirements

SCJ Supreme Court Justice

Ves Vesey Senior's Reports

BCLC British Company Law Cases

BCC British Company Law Cases

Anr Another

AHM Ahmedabad

AT Appellate Tribunal

COC Committee of Creditors

IBBI Insolvency Bankruptcy Board of India

IR Interim Resolution

IRP Interim Resolution Professional

KB Kolkata Bench

Ltd Limited

NCLAT National Company Law Appellate Tribunal

Ors Others

Pvt Private

RP Resolution Professional

v Versus

¶ Paragraph

§ Section

UKHL United Kingdom House of Lords

UOI Union of India

MEMORIAL for APPLICANTS Surana & Surana and UPES National Insolvency Moot, 2019
[LIST OF ABBREVIATIONS] Page | VI

US United States

HL House of Lords

ALL ER All India England Reporter

Draft Z Draft Part Z on Cross Border

Weeknd The Weeknd Airlines Pvt. Ltd.

AHSB Air Hotels SDN BHD

Weeknd Productions Weeknd United Productions Pvt. Ltd.

Code Insolvency and Bankruptcy Code, 2016

RERA Real Estate (Regulation and Development) Act, 2016

COMI Center of Main Interest

asm Assumption

cl Clause

MEMORIAL for APPLICANTS Surana & Surana and UPES National Insolvency Moot, 2019
[LIST OF AUTHORITIES] Page | VII

LIST OF AUTHORITIES

CASES

Ajay Agarwal v Ashok Magnetic Ltd II [2019] BC 37 14

Andhra Bank v FM Hammerle Textile Ltd [2018] BC 88 7

Andhra Bank v FM Hammerle Textile Ltd (2018) 4 BC 88 9

Arcelormittal (India) (P) Ltd v Satish Kumar gupta [2019] 2 SCC 1 14

C Mahendra International Ltd v Naren Sheth [2019] 154 SCL 190 14

Cedric D’ Sliva v Union of India [2008] (1) Bom CR 70 3

Central Machine Tool Institute Bangalore v Assistant Labour Commissioner ILR 3

1979 Kar 484

Crompton Greaves Consumer Electricals Ltd v KPR Industries (India) Ltd [2018] 4

208 Comp Cas 269

DR Balakrishna Raja v Indian Bank 2019 SCC OnLine NCLAT 322 14

Export Import Bank of India v Resolution Professional JEKPL Pvt Ltd [2018] 146 6

CLA 246

Gharativ Kedar AIR 1937 Nag 140 9

IDBI Bank Ltd v BCC Estate Pvt Ltd [2018] 1 Comp LJ 116 6

Indian Iron and Steel Co Ltd v State of West Bengal (2012) ILLJ 83 Cal 3

MEMORIAL for APPLICANTS Surana & Surana and UPES National Insolvency Moot, 2019
[LIST OF AUTHORITIES] Page | VIII

Innoventive Industries v ICICI Bank [2018] 1 SCC 407 6

Juggilal Kamlapat Jute Mill Mazdoor Morcha v Juggilal Kamlapat Jute Mills 3

Company Ltd [2019] 154 SCL 1 (SC), [11]

M/s Chetak Construction Ltd v Om Prakash (1998) 4 SCC 577 12

Macquarie Bank Ltd v Shilpi Cable Technologies Ltd[2018] 2 SCC 674 4

Mathur Avaiations v Lt Governor(1977) IILLJ 255 Del 3

Meghal Homes Pvt Ltd v Shree Niwas Girni K K Samiti [2007] 7 SCC 753 14

Nitin Gupta v Applied Electro-Magnetics Pvt Ltd[2018] 142 CLA 527 3

OL Victor Pvt Ltd v Kanhiya Lal (1972) 42 Comp Cas 396 13

Om Prakash Khaitan v Shree Keshariya Investment Ltd [1978] 48 Comp Cas 8

Rajesh Balasubramanian v Everon Castings Pvt Ltd II [2019] BC 163 14

Rangaswami v Registrar of Trade Unions (1961) ILR Madras 1134 3

Re Cello Pens (P) Ltd [2017] 83 taxmann.com 399 15

State Bank of India v Bhushan Steels Ltd [2018] 90 taxmann.com 194 2

State Bank of India v Ramakrishnan 2018 (7) SCJ 632 6

Swiss ribbons v Union of India [2019] 4 SCC 17 6

Uttam Galva Steels Limited v DF Deutsche Forfait AG [2017] 204 Comp Cas 51 4

MEMORIAL for APPLICANTS Surana & Surana and UPES National Insolvency Moot, 2019
[LIST OF AUTHORITIES] Page | IX

Vishnu Kumar Agarwal v Piramal Enterprises Ltd [2019] 149 CLA 30 6

Y Shivram Prasad v S Dhanapal [2019] 153 SCL 153 14

STATUTES

Companies Act 2013 8

Draft Part Z on Cross Border Insolvency 10

The Insolvency and Bankruptcy Code 2016 1

BOOKS

Ashish Makhija, Insolvency and Bankruptcy Code of India (1st edn, Lexis Nexis 13

2018)

Bryan A Garner, Black’s Law Dictionary (9th edn, St Paul 2009) 5

M. Virgós and F. Garcimartín, The European Insolvency Regulation: Law and 11

Practice (1st edn, Kluwer, 2004)

Sir D F Mulla, The Law of Insolvency Law in India (5th edn, LexisNexis 2013) 13

SN Gupta, Law Relating to Guarantees with Pro-formas of Bank Guarantees and 9

Indemnity Bonds (6th edn, Pitman 1947)

Sumant Batra, Coroprate Insovency Law and Practice (1st edn, Eastern Book 8

Company 2017)

MEMORIAL for APPLICANTS Surana & Surana and UPES National Insolvency Moot, 2019
[LIST OF AUTHORITIES] Page | X

UNCITRAL, Law on Cross-Border Insolvency with Guide to Enactment and 11

Interpretation (1st edn, United Nations Publication 2014)

William Meade Fletcher and Basil, Jones Fletcher Cyclopedia of the Law of 4

Private Corporations (first published 1931, St Paul 1999)

RULES

Companies (Meeting of Board and its Powers) Rules 2014,REGD. NO. D. L.- 8

33004/99, r 10

ARTICLES AND JOURNALS

Wellard & Mason, ‘Global rules on conflict-of-laws matters in international 11

insolvency cases: An Australian 28 perspective’ (2015) 23 ILJ 1

ONLINE SOURCES

‘Tropical Issues: How Effective is wrongful trading legislation in Holding Rogue 8

Directors to Account?’

<http://www.linklaters.com/pdfs/mkt/London/GC6805_Rogue_Directors_BAFS

_FINAL_A_ SCREEN.PDF> accessed 12 September 2019.

Insolvency and Bankruptcy Board of India, ‘Discussion Paper on Corporate 14

Liquidation Process along with Draft Regulations’ (2019) 8 IBBI

<https://ibbi.gov.in/Discussion%20paper%20LIQUIDATION.pdf> accessed on 15

September 2019; Ravi Mahajan v Jalesh Kumar Grover, Company Appeal at

Insolvency No 66 of 2019

MEMORIAL for APPLICANTS Surana & Surana and UPES National Insolvency Moot, 2019
[LIST OF AUTHORITIES] Page | XI

Wolf-Georg Ringe, ‘Bankruptcy Forum Shopping in Europe’ (Bankruptcy 12

Roundtable, 15 May 2018)

<https://blogs.harvard.edu/bankruptcyroundtable/2018/05/15/bankruptcy-forum-

shoppping-in-europe>accessed 31 August 2019

REPORTS

European Union Council, Report on the Convention of Insolvency Proceedings 11

(Law Com No 6500/96, 1996)

Ministry of Corporate Affairs, ‘Report of the Insolvency Law Committee’ (March 6

2018)

Ministry of Corporate Affairs, ‘Report on Cross Border Insolvency’ (March 2018) 11

FOREIGN CASES

AIB Group (UK) Plc v Martin [2002] 1 WLR 94 5

Ferro Alloys Corporations Ltd v Rural Electrification Corporation [2019] 148 6

CLA 159

Hertz Corp v Friend 559 US 77 (2010) 10

KR v Royal & Sun Alliance Plc [2006] EWHC 48 (QB) 4

Legend International Holdings Inc v Legend International Holdings Inc [2016] 11

VSC 308

Lennard's Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705-713 4

MEMORIAL for APPLICANTS Surana & Surana and UPES National Insolvency Moot, 2019
[LIST OF AUTHORITIES] Page | XII

Millenium Global Emerging Credit Master Fund 458 BR 63 (2011) 12

Morgan v Seymore (1638) 1 Rep Ch 120 9

Re Beacon Leisure lt (1992) BCLC 565 (Ch D) 13

Re Bear Stearns High-Grade Structured Credit Strategies 389 BR 325 (2008) 11

Re Bear Stearns High-Grade Structured Credit Strategies, 389 BR 325 (2008) 10

Re Betcorp Ltd, 400 BR 266, pg 284 (Bankruptcy D Nev 2009) 11

Re Brian D Pierson (Contractors) Ltd (1999) BCC 13

Re EurofoodIFSC Ltd (2006) All ER 1078 (EC) 11

Re Fairfield Sentry Ltd 714 F 3d 127 (2nd Cir 2013) 10

Re Interedil Srl (C-396/09) [2011] ECR 1 9939 11

Re Toft 2011 WL 3023-544 12

Rhone v Peter AB Widener 1 (1993) SCR 497-507 4

Shamrock Oil and Gas Co v Ethridge 159 F Supp 693 (D Colo 1958) 4

Tannenbaum v Tannenbaum 234 App Div 660 (1931) 10

Wiki Kids Ltd v Regional Director South East Region[2018] 143 CLA 69 15

MEMORIAL for APPLICANTS Surana & Surana and UPES National Insolvency Moot, 2019
[STATEMENT OF JURISDICTION] Page | XIII

STATEMENT OF JURISDICTION

The applicants solemnly submitted to the inherent jurisdiction of the Hon’ble National

Company Law Tribunal, Delhi arising by the virtue of §.60(5) Insolvency and Bankruptcy

Code, 2016 to adjudicate the present application. The Hon’ble National Company Law

Tribunal, Delhi has the territorial jurisdiction arising by the virtue of §.60(5) Insolvency and

Bankruptcy Code, 2016 as respondent’s registered office is in Delhi.

MEMORIAL for APPLICANTS Surana & Surana and UPES National Insolvency Moot, 2019
[STATEMENT OF FACTS] Page | XIV

STATEMENT OF FACTS

Mr. Hooda established ‘The Weeknd Airlines’ Pvt. Ltd. [Hereinafter Weeknd] in 2011 and

he had 90% of shareholding in it. Weeknd established a wholly owned subsidiary i.e. Air Hotels

SDN BHD (AHSB) under the laws of Malaysia.

In 2018 Weeknd entered the market of Russia.To start its ventures in Europe the company took

a loan of INR 100 Cr. from the Bank of Dehradun, where a personal guarantee of Mr. Vikas

Sharma was furnished against it. Weeknd took a loan of INR 189 Cr. from Kailash.

Mr. Hooda had defaulted on his loans of Kailash Bank and Bank of Dehradun. In June 2018,

another wholly owned subsidiary of Weeknd, Weeknd United Productions Pvt. Ltd.

[Hereinafter Weeknd Productions] was incorporated. RSJ Bank provided a loan of INR 150

Cr. by furnishing of Weeknd’s current assets as security.

AHSB shifted their registered office from Malaysia to USA for the purpose of an expedited

restructuring process. Meanwhile two senior pilots of Weeknd were terminated. Weeknd

defaulted on the loan of Bank of Dehradun and personal guarantee of Mr. Vikas was invoked.

Mr. Hooda on his birthday announced flats at 50% of market price to all of its employees but

the possession was not delivered on the due date.

The trade union instituted an application under Insolvency and Bankruptcy Code, 2016

[Hereinafter Code] in the National Company Law Tribunal [Hereinafter Tribunal] for

initiating Corporate Insolvency Resolution Process [Hereinafter CIRP]. The claims of

Kailash Bank, Bank of Dehradun, RSJ Bank, Mr. Vikas were rejected thus each of them moved

to NCLT.

AHSB filed a voluntary bankruptcy petition under the US bankruptcy Code for the purpose of

re-organization. Bankruptcy Court appointed Ms. Olivia as Interim Trustee. Mr. Naresh

Singhvi’s highest bid was rejected, thus the present case.

MEMORIAL for APPLICANTS Surana & Surana and UPES National Insolvency Moot, 2019
[STATEMENT OF ISSUES] Page | XV

STATEMENT OF ISSUES

I. Whether the application filed under Insolvency and Bankruptcy Code, 2016 is

admissible?

II. Whether the claims of Kailash Bank and Bank of Dehradun can be admitted by the

RP/COC?

III. Whether the RP/COC is rightful in denying financial debt of RSJ Bank?

IV. Whether the directors must be held personally liable for furnishing current assets of

Weeknd as security?

V. Whether Mr. Vikas can enforce his contractual?

VI. Whether Ms. Olivia’s application for Recognition of US Voluntary Bankruptcy

Proceeding be accepted?

VII. Whether there can be two concurrent Insolvency Proceedings in different jurisdiction?

VIII. Whether upon admission of CIRP the invocation of Personal Guarantee by Bank of

Dehradun is liable to be set aside?

IX. Whether Mr. Naresh Singhvi can be allowed to present the plan as a Scheme, in case

the Corporate Debtor goes into liquidation?

MEMORIAL for APPLICANTS Surana & Surana and UPES National Insolvency Moot, 2019
[SUMMARY OF ARGUMENTS] Page | XVI

SUMMARY OF ARGUMENT

I. The application filed under the Code is admissible as: the application filed by the

trade union is admissible u/s 9 of the Code

II. The claims of Kailash Bank & Bank of Dehradun can be admitted by the RP/COC

as: Weeknd and Mr. Hooda are single legal entity as Mr. Hooda been the direct and mind of

the Weeknd.

III. The RP/COC is not rightful in denying financial debt of RSJ Bank as: Weeknd’s

liability is co extensive with Weeknd Productions’ liability. RSJ Bank has matured claim

against weeknd. In arguendo, unmatured claims are admissible in CIRP.

IV. The directors must not be held personally liable for furnishing current assets of

Weeknd as: security as they act accordance with § 185 of the Companies Act, 2013 and there

is no violation of § 66 of the Code.

V. Mr. Vikas can enforce his contractual right as: it there exists a financial debt against

Weeknd and his right of subrogation is a natural right.

VI. Ms. Olivia’s application for Recognition of US Proceeding should not be accepted

as: US proceeding is neither a foreign main proceedings nor a foreign non main proceedings.

VII. There cannot be two concurrent Insolvency Proceedings in different jurisdiction

as: the US proceeding is not a foreign main proceedings

VIII. The invocation of Personal Guarantee by Bank of Dehradun is not liable to be set

aside as: upon admission of CIRP as money paid by Mr. Vikas is not a preferential transaction.

IX. Mr. Naresh Singhvi can be allowed to present the plan as a Scheme, in case the

Corporate Debtor goes into liquidation as: he is not ineligible under the Code to present the

Scheme and could be allowed to present the scheme viewing the objective of the Code.

MEMORIAL for APPLICANTS Surana & Surana and UPES National Insolvency Moot, 2019
[ARGUMENTS ADVANCED] Page | 1

ARGUMENTS ADVANCED

I. THE APPLICATION FILED UNDER INSOLVENCY AND BANKRUPTCY CODE, 2016 IS

ADMISSIBLE.

(¶ 1.) It is humbly submitted before the Hon’ble Tribunal that the application filed by the

Trade Union against Weeknd is admissible under §. 9 of the Code as first, the requirements

prescribed under §. 4 r/w §. 6 are satisfied [A]; secondly, Weeknd owes an operational debt

[B]; thirdly, Trade Union has filed application on behalf of an Operational Creditor [C]; and

lastly, a valid demand notice has been delivered to Weeknd [D].

A. THE REQUIREMENTS PRESCRIBED UNDER §.4 R/W §. 6 ARE SATISFIED.

(¶ 2.) The CIRP can be initiated only when requirements of §. 4 r/w §. 6 of the Code are

satisfied.1 It is submitted that the requirements prescribed under §. 4 are satisfied in the present

case as first, Weeknd has defaulted on its debt [i]; secondly, Weeknd is a Corporate Debtor [ii];

and lastly, the default is of more than the minimum requirement of INR 1 lakh [iii].

i. Weeknd has defaulted on its debt.

(¶ 3.) Debt refers to an amount that is due from any person.2 Default occurs when a debtor or

a corporate debtor has not paid the whole or any part or instalment of the amount of debt which

has become due and payable.3 In the present case, the pilots employed by Weeknd have paid

amount asked by Weeknd for 2BHK flats and the possession of same was promised to be given

to them by 15th March 2019.4 However, the possession was not given despite timely payment

1
The Insolvency and Bankruptcy Code 2016, s 4.
2
The Insolvency and Bankruptcy Code 2016, s 3(11).
3
The Insolvency and Bankruptcy Code 2016, s 3(12).
4
Moot Proposition, ¶ 19.

MEMORIAL for APPLICANTS Surana & Surana and UPES National Insolvency Moot, 2019
[ARGUMENTS ADVANCED] Page | 2

of the requisite amount. Thus, the promised flat, which amount to INR 105 crore, 5 due from

Weeknd is a debt. Therefore, Weeknd has defaulted on its debt.

ii. Weeknd is a Corporate Debtor.

(¶ 4.) Corporate debtor means a ‘corporate person’ who owes debt to any person. 6 Corporate

person includes a company incorporated under any provision of the Companies Act, 2013 or

any previous law. 7 In the present case, Weeknd is a private limited company incorporated under

the Companies Act, 1956.8 Thus, Weeknd is a Corporate Debtor who has defaulted on its debt.

iii. The default is of more than the minimum requirement of INR 1 lakh.

(¶ 5.) As per the Code the minimum amount of default for the application of Part II of the

Code should be of INR 1 lakh. 9 In the present case, Weeknd has defaulted on debt of INR 105

crores.10 Thus, the amount of default by Weeknd exceeds the minimum threshold of INR

1lakh.Therefore, all the requirements prescribed under §. 4 r/w §. 6 of the Code are fulfilled

and CIRP can be initiated under Part II of the Code.

B. WEEKND OWES AN OPERATIONAL DEBT.

(¶ 6.) Operational debt means payment of claims in respect of provision of goods and services

including employment.11 The Supreme Court of India held that the dues owned by employer

are certainly the debt owed for services rendered by individual workmen. 12

5
Moot Proposition, ¶ 21.
6
The Insolvency and Bankruptcy Code 2016, s 3(8).
7
The Insolvency and Bankruptcy Code 2016, s 3(7).
8
Moot Proposition, ¶ 1.
9
State Bank of India v Bhushan Steels Ltd [2018] 90 taxmann.com 194; The Insolvency and Bankruptcy Code
2016, s 4.
10
Moot Proposition, ¶ 21.
11
The Insolvency and Bankruptcy Code 2016, s 5(21).
12
Juggilal Kamlapat Jute Mill Mazdoor Morcha v Juggilal Kamlapat Jute Mills Company Ltd [2019] 154 SCL 1
(SC), [11].

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[ARGUMENTS ADVANCED] Page | 3

(¶ 7.) In the present case, Weeknd offered to give flats to its employees only. These

employees were rendering their services to Weeknd as they were employed as pilots in the

company. These employees were losing faith in their employer, Weeknd dismissed two of its

pilots from the service without giving any cause or reason. Hence, these flats were offered to

the pilots for services rendered by them to restore their trust back in the company. Thus, the

debt is due for services rendered by employees. Therefore, there exists an operational debt.

C. TRADE UNION HAS FILED THE APPLICATION ON BEHALF OF AN OPERATIONAL

CREDITOR.

(¶ 8.) Operational creditor includes a person who is being employed in a company and has

provided service to that company. 13 Further, the trade union can represent its members who are

workers, to whom dues may be owed by the employer. 14 Furthermore, pilots come under the

purview of workmen in Industrial Dispute Act, 1947.15 The said act and the Trade Union Act,

1926 are in pari matria. 16

(¶ 9.) In the present case, Weeknd owes a debt of Rs 105 crore to its employees; pilots 17 and

the registered trade union has filed an application on behalf of them. 18 Thus, the pilots are

Operational Creditors and the trade union can file an application for initiating CIRP against

Weeknd on their behalf.

D. A VALID DEMAND NOTICE HAS BEEN DELIVERED TO WEEKND.

13
Nitin Gupta v Applied Electro-Magnetics Pvt Ltd [2018] 142 CLA 527.
14
Juggilal (n 13).
15
Cedric D’ Sliva v Union of India [2008] (1) Bom CR 70; Mathur Avaiations v Lt Governor(1977) IILLJ 255
Del; Indian Iron and Steel Co Ltd v State of West Bengal (2012) ILLJ 83 Cal.
16
Central Machine Tool Institute Bangalore v Assistant Labour Commissioner ILR 1979 Kar 484; Rangaswami
v Registrar of Trade Unions (1961) ILR Madras 1134, [3].
17
Moot Proposition, ¶ 21.
18
Moot Proposition, ¶ 19.

MEMORIAL for APPLICANTS Surana & Surana and UPES National Insolvency Moot, 2019
[ARGUMENTS ADVANCED] Page | 4

(¶ 10.) The requirement of an application filed under §. 9(2) of the Code being accompanied

by an invoice/demand notice is a mandatory condition precedent to the filing of the

application. 19 The reason of serving demand notice is to inform the Corporate Debtor of

operational debt with a clear understanding of paying it. 20 In the present case, the applicant has

sent written reminders to the Corporate Debtor but there has been no response received from

their side.21 Thus, a valid demand notice has been served.

(¶ 11.) Thereby, the application for initiating a CIRP against Weeknd is maintainable under §.

9 of the Code. Therefore, it is humbly submitted that the application filed by the Trade Union

under the Code is admissible.

II. THE CLAIMS OF KAILASH BANK AND BANK OF DEHRADUN CAN BE ADMITTED BY THE

RP/ COC.

(¶ 12.) It is humbly submitted that where the majority shareholder is the directing mind and

will of the company then the company and shareholder are single legal entity and both of them

can be attributed to acts of each other.22 Further, directing will and mind refers to the power of

a person to design and implement corporate policy, as opposed to simply being able to carry

out policy designed by others.23

19
Macquarie Bank Ltd v Shilpi Cable Technologies Ltd[2018] 2 SCC 674, [6]; Crompton Greaves Consumer
Electricals Ltd v KPR Industries (India) Ltd [2018] 208 Comp Cas 269, [17].
20
Uttam Galva Steels Limited v DF Deutsche Forfait AG [2017] 204 Comp Cas 51, [31].
21
Moot Proposition, ¶ 12.
22
Shamrock Oil and Gas Co v Ethridge 159 F Supp 693 (D Colo 1958); KR v Royal & Sun Alliance Plc [2006]
EWHC 48 (QB); William Meade Fletcher and Basil, Jones Fletcher Cyclopedia of the Law of Private
Corporations (first published 1931, St Paul 1999) 136.
23
Lennard's Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705-713; Rhone v Peter AB Widener 1 (1993)
SCR 497-507.

MEMORIAL for APPLICANTS Surana & Surana and UPES National Insolvency Moot, 2019
[ARGUMENTS ADVANCED] Page | 5

(¶ 13.) In the present case, Mr. Hooda has started the company Weeknd Airline Pvt. Ltd. and

he has the single largest shareholding with 90% shares in the company. 24 The company started

its operations in Russia and Europe only on the desire of Mr. Hooda.25 Additionally, the

corporate policies are designed and implemented in the company as suggested by Mr. Hooda

even when top management was not in favour of those policies. 26 Even the decision of

providing flats to all Weeknd’s employee at a discounted rate was taken by Mr. Hooda on his

own and the same was announced on his birthday. 27 Hence, the decisions of the company was

taken by Mr. Hooda single handedly. Thus, Mr. Hooda was the directing mind and will of the

company and Mr. Hooda and the company Weeknd are same entities.

(¶ 14.) Thus, the company is liable for Mr. Hooda’s financial obligation. Therefore, it humbly

submitted that the claims of Kailash Bank and Bank of Dehradun can be admitted by the

RP/COC.

III. THE RP/COC IS NOT RIGHTFUL IN DENYING FINANCIAL DEBT OF RSJ BANK.

(¶ 15.) It is humbly submitted that the RP/COC is not rightful in denying the financial debt of

RSJ Bank as first, Weeknd’s liability is coextensive with Weeknd Production’s liability [A];

secondly, RSJ Bank has a matured claim against Weeknd [B]; and lastly, in arguendo,

unmatured claim of RSJ Bank can be admitted in the CIRP [C].

A. WEEKND’S LIABILITY IS COEXTENSIVE WITH WEEKND PRODUCTION’S LIABILITY.

24
Moot Proposition, ¶ 7.
25
Moot Proposition, ¶ 9.
26
Moot Proposition, ¶ 8.
27
Moot Proposition, ¶ 9.

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[ARGUMENTS ADVANCED] Page | 6

(¶ 16.) A guarantee refers to something given or existing as security, such as to fulfill a future

engagement or a condition subsequent 28 and the corporate entity who gives such security for a

debt is known as corporate guarantor.29 In transactions involving corporate guarantee, the

creditor is held to be a financial creditor for both the principal debtor and the corporate

guarantor.30 Thus, the liability of the guarantor and principal debtor is coextensive and the

creditor can proceed,31 against the principal debtor or surety, 32in no particular sequence.33

Further, a claim for guarantee can be filed against the corporate guarantor, even after the CIRP

has been initiated against it.34

(¶ 17.) In the present case, RSJ bank gave a loan of INR 150 crore to Weekend Production and

Weeknd furnished its assets as a security in the said transaction. 35 Hence, Weeknd has acted in

the capacity of a Corporate Guarantor for the said transaction. Thus, Weeknd’s liability is

coextensive with Weeknd Production’s liability for the loan provided by RSJ Bank.

(¶ 18.) Therefore, RSJ Bank can proceed against Weeknd before satisfying its claim against

Weeknd Production.

B. RSJ BANK HAS A MATURED CLAIM AGAINST WEEKND.

28
AIB Group (UK) Plc v Martin [2002] 1 WLR 94; Bryan A Garner, Black’s Law Dictionary (9th edn, St Paul
2009) 820.
29
ibid 821.
30
Ferro Alloys Corporations Ltd v Rural Electrification Corporation [2019] 148 CLA 159, [39].

Ministry of Corporate Affairs, ‘Report of the Insolvency Law Committee’ (March 2018); State Bank of India v
31

Ramakrishnan 2018 (7) SCJ 632.

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[ARGUMENTS ADVANCED] Page | 7

(¶ 19.) ‘Debt’ means a liability or obligation in respect of a claim which is due from any

person.36 A ‘claim’ gives rise to a ‘debt’ only when it becomes ‘due’.37 Further, ‘due’ means

payable unless interdicted by some law or has not yet become due in the sense that it is payable

at some future date.38

(¶ 20.) In the present case, the first EMI of loan amount taken from RSJ Bank can be paid

before 1stJanuary 2020. 39 Thus, RSJ Bank has a matured claim against Weeknd.

C. IN ARGUENDO, UNMATURED CLAIM OF RSJ BANK CAN BE ADMITTED IN THE CIRP.

(¶ 21.) The maturity of a claim or default of debt is not guiding factors for collating or updating

the claims. 40 The existence of default or debt is for initiating CIRP and it has no relation with

acceptance of claims.41 It is not necessary that all the claims submitted by the creditor should

be matured on the date of initiation of CIRP.42

(¶ 22.) In the present case, the first EMI of loan amount taken from RSJ Bank is payable on or

before 1st January 2020.43 Even though this debt has not become matured the unmatured claim

of RSJ Bank can be in the CIRP.

(¶ 23.) Therefore, it is humbly submitted that the RP/COC is wrongful in denying the financial

debt of the RSJ Bank.

36
The Insolvency and Bankruptcy Code 2016, s 3(11).
37
Swiss ribbons v Union of India [2019] 4 SCC 17, [51].
38
Innoventive Industries v ICICI Bank [2018] 1 SCC 407, [30].
39
ibid.
40
Export Import (n 35), [53].
41
ibid.
42
Andhra Bank v FM Hammerle Textile Ltd [2018] BC 88, [9].
43
Moot Proposition, ¶ 14.

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[ARGUMENTS ADVANCED] Page | 8

IV. THE DIRECTORS OF WEEKND CANNOT BE HELD PERSONALLY LIABLE FOR

FURNISHING CURRENT ASSETS OF WEEKND AS SECURITY.

(¶ 24.) It is humbly submitted that the directors of Weeknd cannot be held personally liable for

furnishing the current assets of Weeknd as security as first, Weeknd’s directors acted in

accordance with the provisions of §. 185(3)(c) of the Companies Act, 2013[A]; and secondly,

§. 66(2) of the Code is not violated [B].

A. WEEKND’S DIRECTORS ACTED IN ACCORDANCE OF§. 185(3)(C).

(¶ 25.) Every officer of the company who is in default is liable 44 for advancing any loan or

giving any guarantee to any subsidiary company. 45 Accordingly, the term “officer in default”

includes “every director of a company, who is aware about or with whose consent the

contravention of provisions of company law take place.” 46 However, a holding company can

give a guarantee or provide security for the loan of its wholly owned subsidiary, if that loan is

utilised for principal business activities. 47

(¶ 26.) In the present case, Weeknd provide its current assets as security in a loan of Weeknd

Productions, which is a wholly owned subsidiary of Weeknd. 48 It was incorporated with an

objective of aircraft manufacturing and the loan was taken to procure raw material for aircraft

manufacturing.49 Hence, the loan amount was utilized for principal business activity only.

44
Companies Act 2013, s 185(4)(ii).
45
Companies Act 2013, s 185(1).
46
Companies Act 2013, s 2(60).
47
Companies Act 2013, s 185(3)(c); Companies (Meeting of Board and its Powers) Rules 2014,REGD NO D L-
33004/99, r 10.
48
Moot Proposition, ¶ 14.
49
Moot Proposition, ¶ 14.

MEMORIAL for APPLICANTS Surana & Surana and UPES National Insolvency Moot, 2019
[ARGUMENTS ADVANCED] Page | 9

Therefore, Weeknd’s directors acted in accordance with the provisions of §. 185(3)(c) of the

Companies Act,2013.

B. §. 66(2) OF THE CODE IS NOT VIOLATED.

(¶ 27.) Directors will not be liable for wrongful trading if, at the relevant time, they had realistic

ground for believing that the company could still improve financially50 and they are not able to

perceive that, by their particular action the company may go into insolvency. 51

(¶ 28.) In the present case, 1/5th of the passengers in the airlines industry are being carried by

Weeknd alone. 52 The company is having dominance in the market as it is able to gain the trust

of customers because of its business policies. 53 Hence, the directors had a realistic ground to

believe that the company will eventually start making profit and will pay off its debts. Thus, it

gave no prospect to the directors that the company will go into insolvency. Hence, the directors

cannot be held liable under §. 66 of the Code.

(¶ 29.) Therefore, it is humbly submitted that the directors of Weeknd cannot be held

personally liable for furnishing current assets of Weeknd as security.

V. MR. VIKAS CAN ENFORCE HIS CONTRACTUAL RIGHTS.

(¶ 30.) It is humbly submitted that Mr. Vikas can enforce his contractual rights as the guarantor

after disposing off the obligations of the principal debtor,54 acquires the rights of creditors,55

50
Sumant Batra, Coroprate Insolvency Law and Practice (1st edn, Eastern Book Company 2017) 544; Om
Prakash Khaitan v Shree Keshariya Investment Ltd [1978] 48 Comp Cas 85.
51
Re Hawkes Hill Publishing Co Ltd (in liq), Ward v Perks [2007] BCC 937; ‘Tropical Issues: How Effective is
wrongful trading legislation in Holding Rogue Directors to Account?’
<http://www.linklaters.com/pdfs/mkt/London/GC6805_Rogue_Directors_BAFS_FINAL_A_ SCREEN.PDF>
accessed 12 September 2019.
52
Moot Proposition, ¶ 1.
53
Moot Proposition, ¶ 1.
54
SN Gupta, Law Relating to Guarantees with Pro-formas of Bank Guarantees and Indemnity Bonds (6th edn,
Pitman 1947) 126.
55
Morgan v Seymore (1638) 1 Rep Ch 120.

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[ARGUMENTS ADVANCED] Page | 10

under §. 140 of the Indian Contract Act, 1872. Further, under the contract of guarantee there is

an implied promise that guarantor will be indemnified for the amount he paid under the

contract.56

(¶ 31.) The debt disbursed against “consideration for time value of money” is a ‘financial debt’,

which may include debt as mentioned in Clause (a) to (i) of §. 5(8) of the Code.57 Any

indemnity obligation in respect of a guarantee also comes within the meaning of ‘financial

debt’.58 If the corporate debtor has counter guarantee obligation in respect of guarantee than

this obligation is financial debt. 59

(¶ 32.) In the present case, Mr. Vikas has paid the debt that was due from Weeknd to the Bank

of Dehradun, under the contract of guarantee.60 Consequently, Weeknd has a counter indemnity

against Mr. Vikas which is in the nature of a financial debt under the Code. Therefore, it is

humbly submitted that Mr. Vikas can enforce his contractual rights.

VI. MS. OLIVIA’S APPLICATION FOR RECOGNITION OF US VOLUNTARY BANKRUPTCY

PROCEEDING SHOULD NOT BE ACCEPTED.

(¶ 33.) It is humbly submitted that the insolvency proceedings initiated by AHSB in US is a

Foreign Proceeding. 61 A foreign proceeding can be recognized as a foreign main proceeding or

a foreign non-main proceeding.62 Ms. Olivia’s application under Clause 12 of Draft Z should

56
The Indian Contract ACT 1872, s 145; Gharati v Kedar AIR 1937 Nag 140.
57
Andhra Bank (n 43), [13].
58
ibid [14].
59
ibid [15].
60
Moot Proposition, ¶ 17-18.
61
Moot Proposition, asm (c).
62
Re Fairfield Sentry Ltd 714 F 3d 127 (2nd Cir 2013); Tannenbaum v Tannenbaum 234 App Div 660 (1931).

MEMORIAL for APPLICANTS Surana & Surana and UPES National Insolvency Moot, 2019
[ARGUMENTS ADVANCED] Page | 11

not be accepted as first, US proceedings is not a foreign main proceeding[A]; and secondly,

relocation of AHSB’s registered office is against the public policy of India [B].

A. US PROCEEDINGS IS NOT A FOREIGN MAIN PROCEEDINGS.

(¶ 34.) Foreign main proceedings takes place in the state having corporate debtor’s Center of

Main Interest.63 Centre of Main Interest [Hereinafter COMI] is a place having the nerve center

of a company. 64 Presumption in favour of registered office being COMI is rebuttable when

proven contrary.65 Factors to determine COMI that should be ascertainable by third parties,66

are location of debtor’s: central administration of economic interest, 67 major operations,68

board of directors,69 shares where they can be dealt with effectively. 70 Such place denotes the

head office, whose functions include taking strategic decisions like restructuring. 71

(¶ 35.) In the present case, the majority of directors of AHSB are present in India carrying out

operations and taking major decisions, including restructuring, from the Indian location. 72 As

63
Draft Part Z on Cross Border Insolvency, cl 2(e); Re Bear Stearns High-Grade Structured Credit Strategies,
389 BR 325 (2008).
64
Hertz Corp v Friend 559 US 77 (2010).
65
Draft Part Z on Cross Border Insolvency, cl 14(1); Re Eurofood IFSC Ltd (2006) All ER 1078 (EC); Ministry
of Corporate Affairs, ‘Report on Cross Border Insolvency’ (March 2018) 44.
66
Draft Part Z on Cross Border Insolvency, cl 14(3); European Union Council, Report on the Convention of
Insolvency Proceedings (Law Com No 6500/96, 1996) 75; Re Fairfield (n 66).
67
Re Interedil Srl (C-396/09) [2011] ECR 1 9939 [62]; Re Betcorp Ltd, 400 BR 266, pg 284 (Bankruptcy D Nev
2009) p. 290; UNCITRAL, Law on Cross-Border Insolvency with Guide to Enactment and Interpretation (1st
edn, United Nations Publication 2014) 69.
68
Legend International Holdings Inc v Legend International Holdings Inc [2016] VSC 308, [92].
69
Re Bear Stearns(n 64), [128].
70
Wellard & Mason, ‘Global rules on conflict-of-laws matters in international insolvency cases: An Australian
28 perspective’ (2015) 23 ILJ 1, 14.
71
M Virgós and F Garcimartín, The European Insolvency Regulation: Law and Practice (1st edn, Kluwer, 2004)
42.
72
Moot Proposition, ¶ 15.

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[ARGUMENTS ADVANCED] Page | 12

AHSB is a wholly owned subsidiary of Weeknd, 73 majority of shares of AHSB are possessed

and dealt effectively by Weeknd in India. The factors imply that the creditors/ third party

consider Indian location to be the place of principal business.

(¶ 36.) Therefore, the US proceedings cannot be recognized as a foreign main proceeding as

AHSB’s COMI is in India.

B. SHIFT OF AHSB IS AGAINST THE PUBLIC POLICY OF INDIA.

(¶ 37.) Recognition of foreign proceedings can be refused if it contradicts domestic public

policy. 74 Forum shopping means cross-border arbitrage to benefit from a more favourable

bankruptcy regime, 75 and is against the public policy of India. 76

(¶ 38.) In the present case, AHSB shifted all the interest of the company, from Malaysia to the

US, over a short period of time. The relocation of the registered office, just before initiation of

insolvency proceedings, was done with the objective of profiting from the court of US as the

laws provide expedited restructuring process. 77Hence, the act of relocation implies self -

serving motives that amounts to forum shopping and is contradictory to the public policy of

India.

(¶ 39.) Therefore, it is humbly submitted that the US proceedings should not be recognized

under Draft Z.

73
Moot Proposition, ¶ 5.
74
Re Toft 2011 WL 3023-544; Millenium Global Emerging Credit Master Fund 458 BR 63 (2011); Ministry of
Corporate Affairs, ‘Report on Cross Border Insolvency’ (March 2018) 31; Shierson v Vlieland-Boddy [2005] 1
WLR 3966-86
75
Wolf-Georg Ringe, ‘Bankruptcy Forum Shopping in Europe’ (Bankruptcy Roundtable, 15 May 2018)
<https://blogs.harvard.edu/bankruptcyroundtable/2018/05/15/bankruptcy-forum-shoppping-in-europe>accessed
31 August 2019.
76
M/s Chetak Construction Ltd v Om Prakash (1998) 4 SCC 577.
77
Moot Proposition, ¶ 16.

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[ARGUMENTS ADVANCED] Page | 13

VII. THERE CANNOT BE TWO CONCURRENT INSOLVENCY PROCEEDING IN DIFFERENT

JURISDICTIONS.

(¶ 40.) It is humbly submitted that Draft Z allows for multiple proceeding, in various

jurisdictions, to take place simultaneously by enabling coordination and cooperation. 78 A

concurrent proceeding can be initiated under the Code after recognition of a foreign main

proceeding against the same corporate debtor.79

(¶ 41.) In the present case, the US proceeding cannot be recognized as a foreign main

proceeding as COMI of AHSB is situated in India,80 not complying with the prerequisite for

commencement of concurrent proceedings. Thus, as no foreign proceeding is recognized by

the Adjudicating Authority, no concurrent proceedings can exist in different jurisdictions.

Therefore, it is humbly submitted that Draft Z allows for multiple proceeding, in various

jurisdictions.

VIII. UPON ADMISSION OF CIRP THE INVOCATION OF PERSONAL GUARANTEE BY BANK

OF DEHRADUN IS NOT LIABLE TO BE SET ASIDE.

(¶ 42.) It is humbly submitted that upon admission of the CIRP the invocation of personal

guarantee by Bank of Dehradun is not liable to be set aside as the transaction made by Mr.

Vikas to Bank of Dehradun is not a preferential transaction under §. 43 of the Code. The

preference refers to a transaction made by a corporate debtor so as to put a creditor in a

beneficial position as it would have been at the time of distribution of assets. 81 However,

exception to this the transaction made under legal obligation does not amount to a preferential

78
Ministry of Corporate Affairs, ‘Report on Cross Border Insolvency’ (March 2018) 44.
79
Draft Part Z on Cross Border Insolvency, cl 24 r/w cl 25.
80
Memorial Submission, ¶ 34.
81
The Insolvency and Bankruptcy Code, s 43(2).

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[ARGUMENTS ADVANCED] Page | 14

transaction. 82 Further, there should be a direct evidence of an overriding intention to prefer one

particular creditor over others.83

(¶ 43.) In the present case, Bank of Dehradun invoked the personal guarantee against Mr. Vikas

and subsequently the guaranteed loan amount was paid back by him. 84 Thus, the said

transaction was not executed by the corporate debtor. Further, Mr. Vikas paid the amount under

his legal obligation. Hence, it can be inferred that he has no intention to prefer the bank over

other creditors. Thus, the transaction made by Mr. Vikas to Bank of Dehradun is not a

preferential transaction.

(¶ 44.) Therefore, it is humbly submitted that upon admission of CIRP the invocation of

Personal Guarantee by Bank of Dehradun is liable not to be set aside.

IX. MR. NARESH SINGHVI CAN BE ALLOWED TO PRESENT THE PLAN AS A SCHEME, IN

CASE THE CORPORATE DEBTOR GOES INTO LIQUIDATION.

(¶ 45.) It is humbly submitted that NCLAT has held that before ordering the sale of assets of

corporate debtor under liquidation, Adjudicating Authority should consider a scheme of

arrangement or compromise, as a last attempt to save the corporate debtor. 85 Further, a person

82
Sir D F Mulla, The Law of Insolvency Law in India (5th edn, LexisNexis 2013) 574; Ashish Makhija, Insolvency
and Bankruptcy Code of India (1st edn, Lexis Nexis 2018) 977.
83
Re Brian D Pierson (Contractors) Ltd (1999) BCC 26; Re Beacon Leisure lt (1992) BCLC 565 (Ch D), OL
Victor v Kanhiya Lal (1972) 42 Comp Cas 396.
84
Moot Proposition, ¶ 18.
85
Ajay Agarwal v Ashok Magnetic Ltd II [2019] BC 37, [12]; Rajesh Balasubramanian v Everon Castings Pvt Ltd
II [2019] BC 163, [9]; Y Shivram Prasad v S Dhanapal [2019] 153 SCL 153, [19].

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[ARGUMENTS ADVANCED] Page | 15

ineligible under §. 29A of the Code,86 can present the scheme to meet the statement and

objectives of the Code.87

(¶ 46.) Furthermore, the scope of §. 230 should not be restricted,88 considering the purpose for

which it is enacted, namely, the revival of a company including a company that is liable to be

wound.89 Additionally, before approving a scheme of arrangement, tribunal should follow the

objective of the Code,90 which is maximization of assets and revival of corporate debtor.91

Thus, the tribunal should act in the public interest, 92 and a genuine and bona fide scheme in the

interest of shareholder and creditor should be allowed. 93

(¶ 47.) In the present case, Mr. Naresh Singhvi’s resolution plan indicates the highest bid for

the corporate debtor.94 In case no resolution plan is accepted, rather than ordering for

liquidation of corporate debtor, the Hon’ble Tribunal should consider the scheme of

compromise or arrangement as a last attempt to save Weeknd.

(¶ 48.) Therefore, it is humbly submitted that Mr. Naresh Singhvi should be allowed to present

the scheme in terms of §. 230 of the Companies Act, 2013.

86
Insolvency and Bankruptcy Board of India, ‘Discussion Paper on Corporate Liquidation Process along with
Draft Regulations’ (2019) 8 IBBI <https://ibbi.gov.in/Discussion%20paper%20LIQUIDATION.pdf> accessed on
15 September 2019; Ravi Mahajan v Jalesh Kumar Grover, Company Appeal at Insolvency No 66 of 2019, [6].
87
C Mahendra International Ltd v Naren Sheth [2019] 154 SCL 190, [3]; DR Balakrishna Raja v Indian Bank
2019 SCC OnLine NCLAT 322, [12].
88
Companies Act 2013, s 230.
89
Meghal Homes Pvt Ltd v Shree Niwas Girni K K Samiti [2007] 7 SCC 753, [33].
90
Y Shivram (n 86, [18].
91
Swiss Ribbons(n 38 ), [11]; Arcelormittal (India) (P) Ltd v Satish Kumar Gupta [2019] 2 SCC 1, [27].
92
Wiki Kids Ltd v Regional Director South East Region[2018] 143 CLA 69, [18].
93
Re Cello Pens (P) Ltd [2017] 83 taxmann.com 399, [16].
94
Moot Proposition, ¶ 26.

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[PRAYER] Page | XVII

PRAYER

Wherefore in light of the facts stated, issues raised, arguments advanced and authorities cited,

counsels for applicants humbly prayed that this Hon’ble Tribunal may be pleased to adjudge

and declare that:

1. Application filed by Trade Union to initiate Corporate Insolvency Resolution Process

of Weeknd Airlines Pvt. Ltd. is admissible.

2. RP/COC should admit the claim of Kailash Bank and Bank of Dehradun.

3. RP/COC should admit the claim of RSJ Bank.

4. The directors of Weeknd are not personally liable for furnishing current assets of

Weeknd as security.

5. RP/COC should admit the claim of Mr. Vikas Sharma.

6. US voluntary bankruptcy proceeding should not be recognized.

7. There cannot be two concurrent proceedings in two different jurisdictions.

8. The invocation of personal guarantee by Bank of Dehradun is not set aside

9. Mr. Naresh Singhvi is allowed to present the scheme.

The Court being satisfied may also make any such order as it may deem fit in the light of

Justice, Equity and Good conscience.

All of which is most humbly prayed

ON BEHALF OFAPPLICANTS

PLACE: SD/-

DATE: COUNSELS FOR THE APPLICANTS

MEMORIAL for APPLICANTS Surana & Surana and UPES National Insolvency Moot, 2019