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 Contemplating what an appeal before the NCLAT must contain? Should the memorandum be detailed or precise? Which documents must be annexed, and how do parties contest an appeal effectively? If these questions are on your mind and you are an insolvency professional, corporate litigation lawyers, company secretaries,  you are exactly where you need to be.

At the outset, I would like to clarify that when you file a memorandum of appeal with the NCLAT, you also need to file a separate and independent interlocutory application for stay of operation and effect of the order that has been challenged. However, in this part, I shall only be discussing the memorandum of appeal, and the interlocutory application shall be dealt with in the next part, so stay tuned. 

Introduction

“Your claim is not admitted.” What next? Drafting an appeal that fights back vociferously.  

I leaned back, the bright office lights glowing off a stack of case files that towered above my coffee mug. I had just opened the email, short and final in tone:

Subject: Rejection of claim
Body: Your claim as the financial creditor has not been admitted by the Resolution Professional (“RP”). For further information, refer to the attached remarks.

The attachment had no clarity. It simply contained a comment about “insufficient supporting documents” and an ambiguous nod to a lack of “substantiated debt.” No real explanation. No back-and-forth. Just a flat-out dismissal.

You know, I had spent multiple days working on claim submission, cross-checking loan documents, verifying account statements, and double-checking the ledger entries. The amount was crucial! My client, a mid-sized NBFC, stood to lose crores if this claim was not admitted into the corporate insolvency process.

And now, just like that, the door had been shut.

Or had it?

This is where many financial creditors, particularly the first-timers to the insolvency process, feel stuck. The rules feel empty, the processes repetitive, and the resolution professional ineffective. 

Be assured: a rejection of your claim is not the end of the road. In fact, it might just be the beginning of a more astute and more persuasive move- an appeal.

An appeal is not just about conveying that a particular authority is “absolutely wrong”, but it is more about conveying that “here’s why I’m right,” and backing that up with necessary pleadings and documents. Drafting an appeal is about navigating the fine line between legal precision and persuasive storytelling. If done well, an appeal can compel a reconsideration, even a reversal of that fateful “claim not admitted.”

So if you have found yourself in my shoes, disturbed by a rejection, this guide is for you. I will walk you through:

• What you must understand before appealing;
• How to frame your case in clear, defensible terms;
• What documents and facts carry real weight. 

Sometimes (quite often), in litigation, the real fight begins after the first “No.” And if you play it well, that “No” shall not be the deciding word…

What is the statutory framework of an appeal under the IBC before the NCLAT? 

When it comes to an appeal, the first question that comes to mind is, what is the time-limit to file an appeal? 

As per section 61 of the Insolvency and Bankruptcy Code 2016 (“the IBC”), an appeal can be filed against an order passed by the NCLT under the IBC, within 30 days from the date of receipt of such order.

The NCLAT may give an extension of 15 days if it is satisfied that the appellant had sufficient cause for the delay.

So, in total, you have 45 days to file an appeal.  

Who can file an appeal against the order of the NCLT?

Any person aggrieved who could be a:  

• Corporate debtor
• Financial/operational creditor 
• Resolution applicant
• Liquidator or insolvency professional

What are the grounds of appeal?

An appeal against an approved resolution plan can be made only on the following grounds:

• When a resolution plan contravenes any existing law.
• In the exercise of powers by the resolution professional during the CIRP.
• The debts owed to operational creditors have not been provided for in the resolution plan. 
• The insolvency resolution process costs have not been provided for repayment with priority over all other debts. 
• An appeal against the liquidation order passed under section 33, 54N (4) or 54L (4) may be filed on the grounds of material irregularity or fraud committed in relation to such liquidation order.
• An appeal against an order for initiation of CIRP passed under section 54O(2) may be filed on the grounds of material irregularity or fraud committed in relation to such an order. 

Hope we have understood the substantive law. Now, let us move on to the procedural aspect. 

The National Company Law Appellate Tribunal Rules 2016 (“the Rules”), deal with the procedure for preparing an appeal. Let’s break down each relevant rule that will help you in formatting and filing an appeal so that you are fully compliant with the procedural rules. 

What is the checklist for filing an appeal as per Rule 19?

1. Language and formatting

• The memorandum of appeal and the documents annexed thereto must be in English.
• If any document is in another Indian language, attach a certified English translation to it.
• The memo of appeal must be:

1. Typed, printed or lithographed;
2. Double-spaced;
3. Printed on one side of standard petition paper; 
4. Margins:

1. Top: 4 cm
2. Left: 5 cm
3. Right: 2.5 cm

• Paginated, indexed, and stitched into a paper book format.

2. The cause title must appear as below:

 Before the National Company Law Appellate Tribunal
                                    Mumbai Bench 

3. Paragraph Structure

• Divide your document into separately numbered paragraphs.
  
• Each paragraph should ideally cover one point, fact, or allegation for clarity.

4. Party Information

• At the start of the appeal, mention:
  
  a. Full name
  b. Parentage
  c. Age 
  d. Description (e.g., “Financial Creditor”)
  e. Address
  
• If someone is suing or being sued in a representative capacity (e.g., RP on behalf of the Committee of Creditors), that must be clearly stated.

5. Numbering of Parties

• Number each party consecutively.
  
• List each party’s name and description on a separate line.
  
• If someone dies during proceedings, their legal heirs are shown with sub-numbers (e.g., 2a, 2b).

6. Legal Provision

• After the cause title, mention the provision of law under which the appeal is filed.
  (e.g., “Application under section 60(5) of the Insolvency and Bankruptcy Code, 2016”)

You shall see a properly formatted draft in the latter part of the article. 

Rule 20 mandates the filing of an address for service of summons with a proper address with the memorandum of appeal.   

How is an appeal presented? 

As per Rule 22, the following rules need to be adhered to. 

• File the appeal in triplicate; that is, you must file 3 physical copies of the appeal. 
• An appeal can be filed in person, by a duly authorised representative, or by an advocate who has filed his Vakalatnama. 
• Your filing must include an index in triplicate: all attached documents, brief descriptions and details of the fee paid.
• Every appeal must be accompanied by a certified copy of the impugned order
• The prescribed fee must be paid at the time of filing, via a demand draft or online.
• Every appeal or pleading must be signed at the bottom by the authorised representative.

How to draft an appeal? 

You know my first ever assignment of drafting an appeal was from an arbitral award. When I sat down to draft that appeal, I thought it would be straightforward. I knew what had happened and knew anomalies in the impugned award. But the moment I started to draft, I went blank and froze.

My only question was- “Where do I start from?”

As I stayed put, I understood that the exercise of drafting an appeal is not just about retelling events from the pleading. It had to be persuasive yet precise because remember, a court is relooking at it. So, give a compelling reason as to why it should be re-examined. 

Needless to say, the process required careful thought and reevaluation of the case. While it was a demanding task, it ultimately helped me produce a more precise and focused appeal. 

Based on the lessons learnt during my first ever drafting assignment, here is a draft prepared by me which you may find of great help if you want to file an appeal before the NCLAT. 

Let us have a look at the facts of our case. 

The Corporate Debtor, Santra Properties Pvt. Ltd. was admitted into Corporate Insolvency Resolution Process (CIRP) by the Hon’ble NCLT vide order dated 03.08.2020. T. Shankaran was appointed as the Interim Resolution Professional, and later replaced as Resolution Professional by S. Shankaran on 22.09.2022.

The Appellant is a Home Leasing Pvt. Ltd., Financial Creditor who lent a total of Rs. 53.5 crores to the Corporate Debtor for two real estate projects in Mumbai. 

In Project A:

– A Memorandum of Understanding (MoU) dated 15.10.2009 was executed for a loan of Rs. 40 crores at 15% p.a. interest.

– The Corporate Debtor agreed to allot 57 flats (70,363 sq. ft.) in the Project A to secure repayment and share 50% of sale proceeds.

– The Corporate Debtor paid only 12% p.a. interest (instead of 15%) until 31.03.2012, defaulted on interest post-2012, and failed to allot the flats. Some flats were sold to third parties without the Appellant’s consent.

In Project B:

– The Appellant lent Rs. 13.5 crores on 02.03.2010 at 18% p.a. interest (quarterly compounded).

– The Corporate Debtor agreed to allot flats aggregating 10,000 sq. ft. in the Project B but paid only 12% p.a. interest until FY 2012-13, defaulted thereafter, and failed to allot the flats.

Defaults and legal actions:

– Despite demand letters, the Corporate Debtor failed to repay principal or interest or allot flats.

– The Appellant filed a Company Petition (IB No. 1099 of 2017) under section 7 of the IBC, claiming Rs. 91.07 crores (principal: Rs. 37.91 crores; interest: Rs. 53.15 crores) as of 31.08.2017.

– An FIR was filed against Mr. XYZ, promoter of the Corporate Debtor, for selling flats in breach of the MoU.

CIRP claim:

– The Appellant filed its claim on 18.08.2020, claiming Rs. 121.50 crores (principal: Rs. 37.91 crores; interest: Rs. 83.58 crores) as of 03.08.2020.

– The Resolution Professional admitted only Rs. 1.32 crores and rejected Rs. 120.18 crores without explanation, assigning the Appellant a 0.81% voting share in the CoC.

Now, let us come to the core issue- 

The Appellant seeks recognition of its full claim as a Financial Creditor and challenges the partial rejection of its claim by the Resolution Professional, as upheld by the NCLT’s order.

And thus this appeal. 

The format of the appeal must be as per Form NCLAT-1 of the National Company Law Appellate Tribunal Rules 2016. 

Like any other petition and application, the appeal begins with a cause title that mentions the tribunal where it is filed, number of the appeal, purpose for which is is filed and finally, names of the parties. 

IN THE NATIONAL COMPANY LAW APPELLATE TRIBUNAL,

PRINCIPAL BENCH

COMPANY APPEAL (AT) (INS.) NO. _____ OF 2024

(COMPANY APPEAL UNDER SECTION 61 OF THE INSOLVENCY AND BANKRUPTCY CODE, 2016 AGAINST THE ORDER DATED 19.12.23 IN I.A. NO. 932 OF 2021 IN C.P. NO. (IB) 1032/MB/2019 PASSED BY THE NATIONAL COMPANY LAW TRIBUNAL, MUMBAI BENCH, COURT- 1, IN THE CIRP OF SANTRA PROPERTIES INDIA LIMITED)

IN THE MATTER OF:  

HOME LEASING PRIVATE

LIMITED

Versus

Again, before the pleadings begin, state the purpose of this appeal. 

APPEAL UNDER SECTION 61 OF THE INSOLVENCY AND BANKRUPTCY CODE, 2016 AGAINST THE ORDER DATED 19.12.2023 PASSED BY THE NATIONAL COMPANY LAW TRIBUNAL, MUMBAI BENCH, COURT-1, IN THE CIRP OF SANTRA PROPERTIES INDIA LIMITED

MOST RESPECTFULLY SHOWETH

Your facts shall form the basis of the appeal. So give each factual detail comprehensively and chronologically to clearly show the errors made by the NCLT. At some point, it may get a bit repetitive too but remember to strike a balance and harp on the errors as much as you can. 

1. DETAILS OF THE APPEAL

Give some brief information about the CIRP proceedings. 

1. Santra Properties Limited (“Corporate Debtor”) is a real estate developer. The corporate insolvency resolution process (“CIRP”) of the Corporate Debtor commenced on 03.08.2020 under the supervision of the National Company Law Tribunal, Mumbai Bench, Court Room-1 (“NCLT”).

How did the issue arise? Now throw some light on the description of the transaction history.  

2. The Appellant had lent monies to the Corporate Debtor for two of its real estate projects, viz. the Project B (Rs. 13.5 crores) and the Project A (Rs. 40 crores). Against these advances, the Corporate Debtor had paid interest @ 12% p.a. annually compounded. The Appellant filed its claim with the Respondent for the remainder of the debt due and payable, i.e. principal of Rs. 37.91 crores and interest of Rs. 83.58 crores as on 03.08.2020.

What is the cause of action against the resolution professional? Were any steps taken to address the issues? Elaborate a little on these two points in your next paragraph. 

3. The Respondent admitted the Appellant as a Financial Creditor. However, the Respondent only admitted the Appellant’s claim for a sum of Rs. 1.32 crores. The Respondent relied on the books of the Corporate Debtor to contend that no interest was payable on the advances and appropriated all payments made by the Corporate Debtor against the principal. Hence, the Appellant filed IA No. 946 of 2021 before the Hon’ble NCLT challenging the quantum by which the claim was admitted.

So the recourse when the resolution professional refuses to admit the claim, a financial creditor files an interlocutory application seeking necessary reliefs. You need to convey to this Tribunal about any such steps taken by the appellant and the outcome of such an application by emphasising on the impugned order. 

Oh yes wait, from now on, you shall repeatedly come across this term- “Impugned Order”. But what is an impugned order? It is simply the order that you are challenging in an appeal.   

I cannot emphasise enough on how crucial it is to annex a copy of the impugned order. This order shall form the very basis of your case, so you cannot afford to miss out on annexing it to your memo of appeal.  

4. By way of the Impugned Order dated 19.12.2023, the Hon’ble NCLT “partly allowed” the Application. The Impugned Order dated 19.12.2023 is indecipherable. In the Impugned Order, the Hon’ble NCLT has rejected the Appellant’s entire claim against the Project B (defined hereinbelow) on a baseless ground that the project was transferred to a subsidiary of the Corporate Debtor viz. SPDPL.
   Further, it is unclear if in the Impugned Order, the Hon’ble NCLT has also recategorized the Appellant as “Other Creditor” qua the claim against the Project A or has directed the Respondent to admit a claim for increased quantum against the Project A as “Other Creditor”. All these conclusions ex-facie contradict the Hon’ble NCLT’s own finding that the Appellant had given loans which were repayable with interest at 12% p.a. Hence, the present Appeal. Certified Copy of the Impugned Order dated 19.12.2023 is annexed hereto and marked as Annexure “A”.

Now, thoughtfully point out reasons as to why you are here. What has irked you about the impugned order? State each of such consistencies below one by one. 

5. Being aggrieved by the Impugned Order, the Appellant has filed the present Appeal on inter alia the following grounds which are without prejudice to each other and set up in the alternate:

(i) The nature of the Appellant’s claim was not an issue in controversy before the Hon’ble NCLT. The Respondent had already categorized the Appellant as a Financial Creditor. The only issue under challenge before the Hon’ble NCLT was the quantum admitted by the Respondent. The Hon’ble NCLT has exceeded the scope of its jurisdiction by recategorizing the Appellant’s claim.

(ii) The findings of the Hon’ble NCLT are patently contradictory and internally inconsistent. In paragraph no. 4.3, the Hon’ble NCLT has clearly held that the Appellant had given loans repayable with interest @ 12% p.a. That being so, there was no basis whatsoever for the Hon’ble NCLT to contradict itself by holding that the transaction qua the Project A was “other debt” in paragraph no. 4.6. of the Impugned Order.

(iv) The finding of the Hon’ble NCLT qua the Project B i.e. that the same had been transferred to SPDPL was completely baseless and contrary to the record. The transactions between the Appellant and the Corporate Debtor on the one hand and between the Appellant and SPDPL on the other hand, were entirely independent. There was no overlap between the two. The finding rendered by the Hon’ble NCLT is completely misconceived and without application of mind.

Hence, the present Appeal.

2. DATE ON WHICH THE IMPUGNED ORDER WAS COMMUNICATED

Now for the purpose of calculating the period of limitation, you need to state when the impugned order was communicated to the Appellant. 

The Impugned Order was pronounced on 19.12.2023. It was uploaded on the website of the Hon’ble NCLT on 20.12.2023. The Appellant applied for a certified copy of the Impugned Order on 02.01.2024. A certified copy of the Impugned Order was made available to the Appellant on 03.01.2024.

3. ADDRESS FOR SERVICE OF THE APPELLANT

Give postal address, phone number, email ID, mobile number and address of counsel. 

4. ADDRESS FOR SERVICE OF THE RESPONDENT 

Give postal address, phone number, email ID, mobile number and address of counsel. 

5. JURISDICTION

Incorporating an averment concerning jurisdiction in your appeal ensures that the case is brought before the proper court which in turn minimizes procedural challenges. It is an attempt to ensure that the case proceeds without any debate on jurisdiction.  

The Appellant declares that the subject matter of the appeal is within the jurisdiction of this Hon’ble Tribunal. 

6. LIMITATION

When it comes to appeal, limitation becomes a crucial aspect. This clause is ensures that the appeal is filed well within the prescribed period of limitation. A declaration to this effect at the outset throws much-needed light on preliminary objections which if not complied with, lead to rejection of the application.  

The Impugned Order was pronounced on 19.12.2023. It was uploaded on the website of the Hon’ble NCLT on 20.12.2023. The Appellant applied for a certified copy of the Impugned Order on 22.12.2024. A certified copy of the Impugned Order was made available to the Appellant on 03.01.2024. 

It is important to note that in case, the Appellant has missed the deadline of 30 days, he must file an application for condonation of delay along with the present Appeal.

7. FACTS

In this section, start with how the corporate debtor was admitted into CIRP and a resolution came to be appointed. 

1. The Corporate Debtor was admitted into CIRP by way of the Hon’ble NCLT’s Order dated 03.08.2020 (“Admission Order”). T. Shankaran was appointed as the Interim Resolution Professional and thereafter confirmed as the Resolution Professional by the Committee of Creditors (“CoC”) of the Corporate Debtor. However, on 22.09.2022, T. Shankaran was replaced by S. Shankaran as the Resolution Professional.
   A reference to the Respondent in the present Appeal shall mean and include the erstwhile Resolution Professional and the present Resolution Professional, as may be applicable. Copy of the Order dated 22.09.2022, passed by the Hon’ble NCLT, is annexed hereto and marked as Annexure “B”.

Here on, give details about the transactions that led to filing of the CIRP Petition. Start from the start. Talk about the loan agreement entered into, security against the loan, how the default arose and breach of an understanding/agreement entered into. 

2. The Appellant was a Financial Creditor to the Corporate Debtor. The Appellant had given monies to the Corporate Debtor for two real estate projects, which had commercial effects of borrowing. The relevant facts in this regard are as follows:

1. In and around September 2009, Mr. XYZ, promoter of Santra Group entities and Director of the Corporate Debtor approached the Appellant for availing loan for development of a plot of land bearing [give details of the land] (“Property A”).

2. Pursuant to various negotiations and meetings between the Appellant and said Mr. XYZ (on behalf of the Corporate Debtor), a Memorandum of Understanding dated 15.10.2009 was executed between the Appellant and the Corporate Debtor (“MoU”) in respect of the Property A. Copy of the MoU dated 15.10.2009 is annexed hereto and marked as Annexure “C”.

3. As per the terms of the MoU:

(i) The amount of Rs. 40,00,00,000/- (Rupees Forty Crores only) was lent and advanced by the Appellant to the Corporate Debtor and the same amount would carry interest at the rate of 15% per annum. 

(ii) The Corporate Debtor had agreed to allot 57 flats / residential premises (of an aggregate area of 70,363 square feet) in the proposed building (“Project A”) to be constructed on Property A to the Appellant. This was to secure the repayment of loan given by the Appellant to the Corporate Debtor.

(iii) It was also agreed that 50% of the sale proceeds from the sale of the above mentioned 57 flats having aggregate 70,363 square feet area in Project A would be shared with the Appellant.

4. On 02.03.2010, the Appellant further lent and advanced a sum of Rs.13,50,00,000/- (Rupees Thirteen Crores Fifty Lakhs Only) against which the Corporate Debtor agreed to pay the Appellant interest at the rate of 18% p.a. quarterly compounded on the amount lent, until the Corporate Debtor allotted to the Appellant, such number of flats that aggregate to 10,000 square feet (carpet area) (“Property B”) in the residential project named [give details of the property] whereafter the amount lent would be set off against the value of the Property B. 

5. On the terms as aforesaid, the Appellant has lent and advanced an aggregate amount of Rs. 53,50,00,000/- (Rupees Fifty Three Crores Fifty Lakhs only) to the Corporate Debtor between 04.09.2009 and 10.03.2010.

You have given sufficient details of the transaction. Now state when and how the default arose along with details of accounts. Annex relevant documents wherever necessary.   

6. As recorded in the MoU, the Appellant has lent a sum of Rs. 40 crores to the Corporate Debtor. However, in breach of the terms of the MoU, the Corporate Debtor did not pay interest at the rate of 15% per annum and paid interest only at the rate of 12% per annum annually compounded for the period up to 31.03.2012. The amounts paid by the Corporate Debtor to the Appellant till 31.03.2012 have been first adjusted towards the repayment of interest.

7. Even after adjusting the amounts paid by the Corporate Debtor to the Appellant, a substantial amount, not only towards the principal amount but also towards the accrued interest, remains unpaid.

8. For the period 31.03.2012 onwards, the Corporate Debtor failed and neglected to make payment towards the interest amount in breach of the express terms of the MoU. Further, the Corporate Debtor failed and neglected to issue allotment letters in respect of the 57 residential flats (which were identified under the MoU itself) in favour of the Appellant.

9. Similarly, for amounts lent and advanced for the Project B, the Corporate Debtor paid interest at the rate of 12% per annum annually compounded instead of the agreed interest at the rate of 18% per annum quarterly compounded, till F.Y. 2012-13 and subsequently, failed to pay interest as well as the principal amount. Despite various reminders, the Corporate Debtor failed to issue allotment letters in respect of the Property B. Copies of TDS certificates for the financial years 2009-10, 2010-11, 2011-12 and 2012-13, evidencing payment of interest by the Corporate Debtor to the Appellant are annexed hereto and marked as Annexure “D” (Colly).

10. The Corporate Debtor had also issued statements of Confirmation of Accounts dated 01.04.2014, 01.04.2015 and 01.04.2016 to the Appellant. The books of accounts of the Appellant are not prepared on accrual basis and prepared on the basis of actual realisation. As the Corporate Debtor was not regular in payments, the debt due from the Corporate Debtor was considered as sticky by the Appellant and the accrued interest was not considered in the Appellant’s books of accounts. Copies of the statements of Confirmation of Accounts issued by the Corporate Debtor dated 01.04.2014, 01.04.2015 and 01.04.2016 are annexed hereto and marked as Annexure “E” (Colly).

11. However, despite repeated requests, including via emails, the Corporate Debtor failed to revert and/or fulfil its obligations. Copies of emails dated 16.02.2017, 23.02.2017, and 21.03.2017 are annexed hereto and marked as Annexure “F” (Colly).

12. In these circumstances, on 21.03.2017, the Appellant called upon the Corporate Debtor to repay the outstanding amounts along with accrued interest Rs.14,97,01,766/- (Rupees Fourteen Crore Ninety Seven Lakhs One Thousand Seven Hundred Sixty Six only) plus interest at the rate of 18% per annum till the date of payment without any further delay. However, no reply was received from the Corporate Debtor. Copy of the letter dated 21.03.2017 sent by the Appellant is annexed hereto and marked as Annexure “G”.

13. Rs. 14,97,01,766/- was standing in the books of the Appellant in relation to loan given towards Project A and Project B as on 21.03.2017. The books of accounts of the Appellant are not prepared on accrual basis and prepared on the basis of actual realisation. As the Corporate Debtor was not regular in payments, the debt due from the Corporate Debtor was considered as sticky by the Appellant and the accrued interest was not considered while issuing letter dated 21.03.2017 or subsequent confirmation of accounts.

14. On 19.06.2017, the Appellant addressed a letter with respect to the Project B, calling upon the Corporate Debtor to either issue allotment letters for Project B or return the amounts advanced along with interest accrued thereon as agreed. The Corporate Debtor neither replied nor complied with the letter dated 19.06.2017. Copy of the letter dated 19.06.2017 is annexed hereto and marked as Annexure “H”.

State how the Corporate Debtor was in breach of certain terms of MoU. 

15. Having realized that the Corporate Debtor has sold some of the abovementioned 57 flats, without the consent of the Appellant, on 19.06.2017, the Appellant also addressed a letter to the Corporate Debtor in relation to the Project A inter alia calling upon the Corporate Debtor to repay the outstanding amount along with accrued interest as well as 50% sale proceeds of the flats earmarked under the MoU. Copy of the letter dated 19.06.2017 is annexed hereto and marked as Annexure “I”.

16. In response to the Appellant’s letter dated 19.06.2017 for the Project A, on 04.09.2017, the Corporate Debtor falsely and dishonestly disputed the MoU and amounts payable by the Corporate Debtor to the Appellant. In this letter, although the Corporate Debtor admitted that money is payable by the Corporate Debtor to the Appellant towards the loan, the Corporate Debtor dishonestly claimed that only a sum of Rs.1,87,75,037/- is due and payable. Copy of the letter dated 04.09.2017 is annexed hereto and marked as Annexure “J”.

17. On 16.10.2017, the Appellant addressed a response to the Corporate Debtor’s letter dated 04.09.2017 denying the contents thereof and reiterated that loan of an aggregate amount of Rs. 53,50,00,000/- was advanced to the Corporate Debtor and a principal sum of Rs.37,91,73,675/- was due and outstanding and interest amount of Rs.53,00,15,579/- was outstanding up to 31.08.2017.
    The Appellant called upon the Corporate Debtor to repay these amounts, failing which, the Appellant would be constrained to initiate appropriate legal proceedings including under the provisions of the IBC. Copy of the letter dated 16.10.2017 is annexed hereto and marked as Annexure “K”.

Now, let us talk about the CIRP proceedings- when was it filed, amount of recovery, admission of the petition, appointment of interim resolution professional, etc. 

18. Thereafter, the Appellant was constrained to file Company Petition (IB) No.1256 of 2017 under section 7 of the IBC (“Company Petition”) against the Corporate Debtor before the Hon’ble NCLT. The Company Petition was filed in view of default in payment of claim arising out of Project A and Project B. In the Company Petition, the Appellant has claimed that an aggregate amount of Rs.37,91,73,675/- is due and payable by the Corporate Debtor towards the principal amount and Rs.53,15,77,579/- is due and payable towards unpaid interest accrued up to 31.08.2017.
    Thus, the Company Petition was filed for an aggregate amount of Rs.91,07,51,254/- payable as on 31.08.2017 along with further interest at the rate of 15% p.a. The Appellant craves leave to refer to and rely upon the Company Petition No. 1256 of 2017 filed by the Appellant against the Corporate Debtor.

So in an appeal, you need to go more in depth about the pleadings. Emphasise on the replies filed by the corporate debtor at various stages. This is mainly to highlight admissions made by corporate debtor.  

19. The Corporate Debtor filed its Affidavit in Reply dated 11.01.2018 to the Company Petition. Pertinently, in this Affidavit in Reply, the Corporate Debtor admitted that the payment made by the Appellant was towards the sale of flats/allotment of area. This demonstrates that the transaction had the commercial effect of a borrowing. Copy of the Affidavit in Reply dated 11.01.2018 (without its Annexures) is annexed hereto and marked as Annexure “L”.

20. In its Affidavit in Reply dated 11.01.2018, the Corporate Debtor sought to dispute the validity of the MOU. However, this denial was baseless as the Corporate Debtor had admitted to the existence of its MoU in a Notice of Motion No. 2870 of 2018 filed by the Corporate Debtor in the Hon’ble High Court of Bombay. Copy of the Notice Motion No. 2870 of 2018 filed in the Hon’ble High Court of Bombay is annexed hereto and marked as Annexure “M”.

Here, talk about the criminal action taken by the financial creditor against the promoter of the corporate debtor- FIR registered, proceedings filed before the criminal court, if any, his response, any findings of the court. 

21. A First Information Report No. 9 of 2018 dated 12.01.2018 was registered inter alia against the said Mr. XYZ for selling some of the aforesaid 57 flats without the consent of the Appellant and for various other offences committed by him in various other transaction undertaken between the Corporate Debtor/its sister concerns/subsidiaries and the Appellant/its sister concerns. It is pertinent to note that the Economic Offences Wing, Mumbai (“EOW”) during its investigation has found the MoU to be valid.
    The EOW has also discovered that in wilful breach of the terms of the MoU, the Corporate Debtor had sold the 57 flats in the Project A (which were agreed to be allotted to the Appellant) to third parties behind the Appellant’s back and the entire consideration amounts received from the third party purchasers were appropriated by the Corporate Debtor alone in breach of the terms of the MoU.
    The said FIR is pending further investigation. Mr. XYZ was granted conditional anticipatory bail pursuant to Anticipatory Bail Application No. 204 of 2018 (“ABA”) filed before the Hon’ble Sessions Court, Mumbai. The Appellant craves leave to refer to and rely upon the papers and proceedings of the ABA when produced.

22. As set out hereinabove, the Appellant had paid a sum of Rs. 40 crores to the Corporate Debtor towards the Project A and Rs.13,50,00,000/- towards Project B. The transaction of providing finance for the Project is reduced in writing and terms are recorded in the MoU. The Corporate Debtor failed to perform its obligations under the MoU. Further the Corporate Debtor failed and neglected to allot 10,000 sq. ft. carpet area in the Project B and failed to repay the amounts paid towards the Project A and Project B along with interest accrued thereon.
    The Corporate Debtor has signed confirmation of accounts and the fact that the Corporate Debtor had agreed to make payment towards interest is clear from the terms of the MoU and that the Corporate Debtor had in fact for period up to F.Y. 2012-13 paid interest to the Appellant towards both Project A and Project B and deducted TDS thereon.
    The Appellant is thus entitled to recover from the Corporate Debtor amounts advanced towards the Project A and Project B along with interest accrued thereon and the Appellant is a Financial Creditor of the Corporate Debtor.

In case of disputes relating to recovery of money, documents scream louder than words. In case the corporate debtor has signed any confirmation of accounts, state about here and annexe the said document. 

To explain it simply, confirmation of accounts typically means verifying the accuracy and completeness of financial account balances with an external party.

23. It is pertinent to note that the Corporate Debtor has signed the statement of confirmation of accounts for the period up to March 2017 and July 2017 for Rs. 1,87,75,037/- (Project A) and Rs. 13,09,26,709/- (Project B) respectively. Copies of the Confirmation of Accounts dated 01.04.2017 and 29.07.2017 are annexed hereto and marked as Annexure “N” (Colly).

This memo of appeal will loose its credibility if we do not talk about the balance sheet. Mention and explain certain important extracts from the balance sheets. Also, annex the copies of those relevant extracts of balance sheets.  

24. Pertinently, the books of accounts of the Appellant are based on actual realization. Hence, the confirmation of accounts does not reflect the accrued interest as on the respective dates. The Corporate Debtor was aware of the same. The same has also been clarified in the Appellant’s letter dated 16.10.2017, the Company Petition as well as the Form C submitted to the Respondent.
    The Appellant’s balance sheets for the period between F.Y 2012-13 and F.Y 2019-20 contain a specific note to that effect, which is reproduced as under: “During the year the Company has not accounted for interest on following loans and advances given as the interest on the loan is considered doubtful and irrecoverable. The interest, if any, will be accounted for as and when the same is received.”
    Further, the notes to the accounts appended to the balance sheets also state that revenue is recognized only when it is reasonably certain that the ultimate collection will be made. The Appellant craves to refer to and rely upon the balance sheets of the Appellant for the remaining years between F.Y. 2013-14 and F.Y. 2018-19, when produced. Copies of the balance sheets of the Appellant for F.Y. 2012-13 and F.Y. 2019-20 is annexed hereto and marked as Annexure “O” (Colly).

When you agree to settle a matter, it means you are accepting that there was a default. More importantly, you are accepting the amount to default. In case, parties attempted to settle the matter, mention that as well. This is will form an indispensable aspect of your appeal. 

25. During the pendency of the Company Petition, the parties explored the possibility of settlement of disputes. The Corporate Debtor inter alia agreed to repay the outstanding amounts it had received towards the Project A and Project B. Accordingly, the Corporate Debtor has admittedly paid Rs. 12,00,00,000/- in April 2018 and Rs. 1,65,00,000/- in June 2019 to the Appellant towards part repayment of the total outstanding of Project B and Project A respectively.
    However, the Corporate Debtor failed to comply with various other obligations agreed between the parties during the settlement talks and hence, by an Affidavit dated 15.10.2019, the Appellant revised its claim in the Company Petition after taking into consideration the aforestated part repayments. The Appellant craves leave to refer to and rely upon Affidavit dated 15.10.2019, when produced.

In case there has been any crucial development in the structure of the company. State it without fail. Like in this case, there was a transfer of business so we shall be dealing with it. 

26. Pertinently, the Project B was subsequently undertaken by the Corporate Debtor through SPDPL and in or around March 2018, the Project B was transferred by SPDPL to one of its creditors, viz. Firstwave Developers LLP (“Firstwave”). At the Corporate Debtor’s request, the Appellant freshly paid Rs. 23 Crores to SPDPL between 04.04.2018 and 09.04.2018 for the Flats. SPDPL caused Firstwave to issue a provisional allotment letter dated 27.05.2019 allotting 2700 square feet built up area in favour of the Appellant in the Project B, which was rejected by the Appellant, vide letter dated 10.08.2019 and email dated 14.05.2020 as it was for an area lesser than the agreed area of 10,000 sq. ft. carpet area.
    The Appellant’s claim for the said Rs. 11 Crores against SPDPL, who is also undergoing CIRP, has been admitted as a financial debt. However, as fresh monies were infused in SPDPL, the present claim against the Corporate Debtor in respect of Project B transaction remains unsettled due to the Respondent rejecting the Appellant’s claim.
    Copy of the Provisional Allotment Letter dated 27.05.2019 is annexed hereto and marked as Annexure “P”. Copy of the letter dated 10.08.2019 is annexed hereto and marked as Annexure “Q”. Copy of email dated 14.05.2020 is annexed hereto and marked as Annexure “R”.Copies of bank certificates dated 28.12.2018 demonstrating payment of monies to SPDPL are annexed hereto and marked as Annexure “S” (Colly).

Now its time to show that once the petition was admitted, the process of CIRP was conducted in accordance with the relevant prescribed rules. 

27. During the pendency of the Company Petition, on 03.08.2020, the Admission Order was passed by the Hon’ble NCLT in the above captioned Petition and CIRP of the Corporate Debtor commenced.

28. On 08.08.2020, the Respondent issued a public announcement inviting creditors of the Corporate Debtor to submit their claims.

29. In response to the public notice issued by the Respondent, on 18.08.2020, the Appellant filed Form C as per the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Debtor) Regulations, 2016 which is to be filed by a Financial Creditor. In the Form C filed before the Respondent, the Appellant has claimed Rs. 37,91,73,675/- (Rupees Thirty Seven Crores Ninety One Lakhs Seventy Three Thousand Six Hundred Seventy Five only) as the principal claim amount and Rs.83,58,68,164/- (Rupees Eighty Three Crores Fifty Eight Lakhs Sixty Eight Thousand One Hundred Sixty Four Only) towards interest accrued thereon, aggregating to Rs. 121,50,41,839/- (Rupees One Hundred Twenty One Crores Fifty Lakhs Forty One Thousand Eight Hundred Thirty Nine only) as on 03.08.2020.
    Copy of the Claim Form filed by the Appellant (without its Annexures) is annexed hereto and marked as Annexure “T”. Copy of the table showing the interest calculation which forms basis of the Claim Form is annexed hereto and marked as Annexure “U”.

Give some more documentary evidence like correspondence exhchanged between the parties to substantiate the case. You may reproduce relevant extracts from such correspondence verbatim to further strengthen your case and show merit. 

30. Thereafter, between 03.09.2020 and 23.12.2020, correspondence was exchanged between the Respondent and the Appellant wherein the Respondent raised certain queries in relation to the claim filed by the Appellant and the Appellant duly replied to the queries raised by the Respondent.
    The Appellant has made out a case of being qualified as the Financial Creditor and its entire claim is liable to be admitted. The Appellant craves leave to refer to and rely upon the entire correspondence exchanged between the Appellant and the Respondent when produced. Some of the relevant communications exchanged between the Respondent and the Appellant are as follows:

By an email dated 03.09.2020, the Respondent asked the Appellant inter alia the

following queries:

(i) provide copy of TDS certificates for the payment of interest during F.Y. 2013- 2014 to 2019-2020.;

(ii) TDS certificates for the F.Y. 2009-2010 to F.Y. 2012- 2013 show payment of more gross interest amount and Form C shows lesser interest payment.;

(iii) any communication from the Corporate Debtor while making payment towards principal or interest. Copy of the email dated 03.09.2020 is annexed hereto and marked as Annexure “V”.

31. On 05.09.2020 the Appellant replied to the queries raised by the Respondent as follows:

(i) the Corporate Debtor has not deducted TDS on payments made from F.Y.2013-14 to F.Y. 2019-20;

(ii) TDS certificates reflect interest paid for several projects undertaken by Corporate Debtor towards which loans / advances were given by the Appellant and Form C reflects only interest received towards projects to which the subject application relates. Therefore, there is a difference between payment of gross interest amount in TDS certificate and amount reflected shown in Form C filed with the Respondent.;

(iii) no communication was received from the Corporate Debtor indicating whether the payment was towards interest and / or principal amount. The Appellant has appropriated the amounts received from the Corporate Debtor firstly towards unpaid interest and thereafter towards unpaid principal amount. Copy of the email dated 05.09.2020 is annexed hereto and marked as Annexure “W”.

32. On 15.09.2020, the Respondent addressed an email to the Appellant and inter alia recording that there is no written agreement for amounts advanced towards Project B. Further, a letter for interest waiver was issued by the Appellant or these loans and asked for copy of such letter. The Respondent observed that interest is calculated on yearly compound basis while MoU is silent on compounding and according to the Respondent, interest shall be calculated only on principal amount. Copy of the email dated 15.09.2020 is annexed hereto and marked as Annexure “X”.

33. On 22.10.2020, the Appellant addressed an email to the Respondent and stated that (i) there is no agreement for amounts advanced towards Project B.
    However, the Corporate Debtor has in fact paid interest from F.Y. 2009-10 to F.Y. 2012-13 which is evident from the TDS certificates annexed to Form C.
    Further, the Corporate Debtor has paid to the Appellant interest to the extent of Rs. 12,00,00,000/- (Rupees Twelve Crores Only) in F.Y.2018-19 towards Project B; (ii) Appellant vide its letter dated 02.04.2013 addressed to the Corporate Debtor had waived interest payable on the loan provided for the Project B on a condition that the Corporate Debtor and/ or its group companies will provide to the Appellant area admeasuring 10,000 square feet carpet area in the Project B. In 2017, meetings were held wherein the Appellant was once again assured by the Corporate Debtor that area admeasuring 10,000 square feet in the Project B will be provided.
    On 16.02.2017, 23.02.2017 and 21.03.2017, emails were sent from the Appellant to the Corporate Debtor, recording the understanding between the parties and calling upon the Corporate Debtor to issue allotment in respect of 10,000 square feet carpet area in Project B.
    The Appellant also forwarded to the Corporate Debtor copies of draft agreements, allotment letter and term sheet for 10,000 square feet carpet area in Project B. The waiver of loan was conditional upon the Corporate Debtor performing its part of the promise. Since, the Corporate Debtor did not allot area in the Project B as per the understanding between the parties, the waiver of payment of interest does not operate and the Respondent is liable to pay interest at agreed rate.
    Further this is clear from the fact that after transferring the Project B to Firstwave vide Deed of Conveyance dated 06.03.2018, the Corporate Debtor paid interest amount of Rs. 12 crores to the Appellant towards Project B in F.Y.2018 – 2019; (iii) although it was agreed between the Appellant and the Corporate Debtor that the interest will be paid on yearly compounding basis, the MoU inadvertently fails to mention the same in clear terms.
    However, the Corporate Debtor has paid interest and deducted TDS thereon, on yearly compounding basis as was always the understanding between the parties. Copy of the email dated 22.10.2020 is annexed hereto and marked as Annexure “Y”.

From now record events of CoC meetings- notable conduct of the corporate debtor at the CoC meetings for instance rejection of your claim or you were denied status of the financial creditor or no voting power was given to you despite of being a financial creditor. 

34. On 22.12.2020, the Appellant addressed an email to the Respondent recording that from 03.09.2020 emails were exchanged conveying the Appellant’s responses to each and every query raised by the Respondent. The CoC of the Corporate Debtor was constituted and despite provision of all the requisite information, the Appellant was invited as merely a guest observer for the 2nd meeting of CoC.
    In the aforesaid circumstance, the Appellant asked the Respondent to appreciate that the Appellant has been deprived of its valuable right to attend, participate and vote in the meetings of the CoC of the Corporate Debtor and requested the Respondent to admit the Appellant’s claim as a Financial Creditor at the earliest. Copy of the email dated 22.12.2020 is annexed hereto and marked as Annexure “Z”.

35. Thereafter on 29.12.2020, the Respondent forwarded notice for the 3rd meeting of the CoC scheduled to be held on 31.12.2020. From the said notice, the Appellant became aware that Appellant’s claim to the extent of Rs.1,32,01,749/- was admitted as a Financial Creditor and majority part of its claim i.e. Rs.120,18,40,090/- was rejected by the Respondent.
    The Appellant is given voting share of merely 0.81%. In the said communication, or even prior thereto, the Respondent has not given any explanation whatsoever for rejecting the Appellant’s claim to the extent of Rs.120,18,40,090/-. Thus, rejection of the Appellant’s claim is patently illegal, contrary to the principals of natural justice and manifestly arbitrary. Copy of the email dated 29.12.2020 is annexed hereto and marked as Annexure “AA”.

36. On 30.12.2020, the Respondent forwarded an updated list of Creditors of the Corporate Debtor as on 24.12.2020 submitted with the Hon’ble NCLT. The list recorded that out of the Appellant’s total claim for Rs. 1,21,50,41,839/- an amount of Rs. 1,32,01,749/- is admitted and claim of remaining amount of Rs. 1,20,18,40,090/- is rejected by the Respondent.
    Note on Claims appended to the said List of Creditors record that no interest is payable from period after March 2013. Account confirmation is not available. However, the Appellant’s claim is not barred by limitation due to the Affidavit of Corporate Debtor dated 15.10.2019 submitted before the NCLT. Copy of the email dated 30.12.2020 is annexed hereto and marked as Annexure “BB”.

In this case, the claim was rejected by the resolution professional, state what did you do next to remedy the wrong done to you. Filed an interlocutory application? Give details about it in brief. 

37. Being aggrieved by the partial rejection of its claim, the Appellant filed IA No. 946 of 2021 challenging the wrongful rejection of its claim. Copy of the IA No. 946 of 2021 (without its annexures) is annexed hereto and marked as Annexure “CC”.

38. The Respondent filed its Affidavit in Reply dated 30.08.2021 to the IA No. 946 of 2021. Copy of the Affidavit in Reply filed by Respondent (without its annexures) is annexed hereto and marked as Annexure “DD”.

39. On 27.11.2021, the Appellant filed its Affidavit in Rejoinder to the Affidavit in Reply filed by the Respondent. Copy of the Affidavit in Rejoinder dated 27.11.2021 (with its annexures) is annexed hereto and marked as Annexure “EE”.

40. After hearing the parties on 07.11.2023, the Hon’ble NCLT sought various clarifications. Accordingly, the Appellant filed its Additional Affidavit on 28.11.2023. Similarly, the Respondent filed its Additional Affidavit on 30.11.2023. Copy of Additional Affidavit dated 28.11.2023 filed by the Appellant (with its annexures) is annexed hereto and marked as Annexure “FF”. Copy of Additional Affidavit dated 30.11.2023 filed by the Respondent (with its annexures) is annexed hereto and marked as Annexure “GG”.

41. Upon hearing the parties, the Hon’ble NCLT was pleased to pass the Impugned Order dated 19.12.2023, partly allowing IA No. 946 of 2021. Being aggrieved by the same, the Appellant has filed the present Appeal on the grounds as referred to in detail hereinbelow:

8. FACTS IN ISSUE AND QUESTIONS OF LAW

You said what you had to. Now sit back and think throug. What exactly is the issue with the impugned order? Start putting it down. Be extremely clear about this section. Do not annoy the judge by putting random issues.   

Another important thing, as soon as you note down a question here, make sure you think of an answer. An answer which is 100% in your favour.

a) Facts in issue 

1. Whether the Impugned Order is void, bad in law and required to be set aside in view of inconsistent findings in Paragraphs No. 4.3 and 4.6 of the Impugned Order?

2. Whether the Hon’ble NCLT has exceeded the scope of its jurisdiction by recategorizing the Appellant’s claim from ‘financial debt’ to ‘other debt’ when the nature of the claim was not in issue?

3. Whether the Hon’ble NCLT erred in rejecting the claim of the Appellant qua the Project B on the ground that the project was transferred to a subsidiary of the Corporate Debtor viz. SPDPL?

4. Whether the Hon’ble NCLT ought to have directed the Respondent to admit the Appellant’s claim with interest at 12% p.a. Annually compounded?

5. Whether the Hon’ble NCLT erred in ignoring (i) the books of accounts of the Corporate Debtor and (ii) Affidavit dated 15.10.2019 filed by the Corporate Debtor before the Hon’ble NCLT which recorded that a financial debt of Rs. 1.32 Crores was payable to the Appellant by the Corporate Debtor, and basis which the Respondent admitted the Appellant as a Financial Creditor to the extent of Rs. 1.32 Crores.

b) Questions of law 

Here raise questions of law which you think if prima facie answered, the answers are in your favour. 

6. Whether the Impugned Order is void, bad in law and required to be set aside in view of inconsistent finding?

7. Whether the Appellant debt is a Financial Debt?

8. Whether the Hon’ble NCLT can exceed the scope of its jurisdiction by recategorizing the Appellant’s claim from ‘financial debt’ to ‘other debt’ when the nature of the claim was not in issue?

9. ` GROUNDS

We have now reached an extremely crucial point of an application. Above, you have raised the issues, right? Now here, give reasons to raise such an issue. Basically, you need to a platform for your issues to rise up. 

What has the Hon’ble NCLT erred in? What points has it not considered while passing the order? What documents were ignored? etc.    

This list needs to be exhaustive but needless to say, it must be to the point. 

The Appellant submits that the Impugned Order deserves to be set aside on inter alia the following grounds which are without prejudice to each other and set up in the alternate:

1. THAT the categorisation of the Appellant’s claim as a financial debt was not in dispute. The Respondent had considered and categorised the Appellant’s claim as a financial debt. It was only the quantum of the claim admitted that was in dispute. Therefore, the Hon’ble NCLT did not have the jurisdiction or the power to downgrade the Appellant’s claim as “other debt”, there being no prayer to that effect in the Application or no relief to that effect sought by the Respondent.

2. THAT the Hon’ble NCLT has exceeded the scope of its jurisdiction and powers by downgrading the Appellant’s claim from “Financial Debt” to “other debt”. The categorization of the Appellant as a Financial Creditor was not an issue in controversy in the matter.

3. THAT the Hon’ble NCLT had clearly observed in paragraph no. 4.3. of the Impugned Order that “there is no dispute as to rate of interest after acknowledgement by the applicant itself in its books of accounts that only 12% p.a. was payable on such loans”. Having held clearly that the amounts were loans, and interest of 12% payable thereon, the Hon’ble NCLT could not have subsequently held that the Appellant’s claim was an “other debt”.

4. THAT the Hon’ble NCLT could not have qualified the Appellant as ‘Other Creditor’ in view of Mr. XYZ specifically admitting that Rs. 1.32 crores is payable to the Appellant and outstanding in the books of the Corporate Debtor and the Corporate Debtor making payment of interest at the rate of 12% per annum annually compounded between 2009 and 2013 to the Appellant.

5. THAT the Hon’ble NCLT’s finding in para. 4.3. that the transaction was a loan carrying 12% interest and the finding in para. 4.5. that the transaction cannot be considered as a financial debt are patently contradictory. Having found that the transaction was a loan carrying 12% p.a. interest, the Hon’ble NCLT could never have subsequently held that the transaction was not a financial debt.

6. THAT even the Respondent had analyzed the documents submitted by the Appellant and categorized the Appellant as a Financial Creditor. The Respondent had raised no allegation or dispute that the Appellant was not a Financial Creditor. The Appellant was a member of the CoC and had voted on the CoC. That being so, the Hon’ble NCLT could never have usurped the jurisdiction vested in the Respondent and overturned the decision of the Respondent, when the same was not an issue in controversy before the Hon’ble NCLT.

7. THAT the Impugned Order is patently contradictory, ex-facie arbitrary and demonstrates a completely non-judicial approach adopted by the Hon’ble NCLT.

8. THAT as per the findings given by the Hon’ble NCLT in paragraph no. 4.3. of the Impugned Order, it ought to have directed the Respondent to admit the Appellant’s claim with interest at 12% p.a. annually compounded.

9. THAT the Hon’ble NCLT’s finding in para. 4.6. of the Impugned Order that the MoU between the parties was in the nature of the partnership and there was no obligation on the Corporate Debtor to make any repayments to the Appellant completely contradicts the Hon’ble NCLT’s own findings in paragraph 4.3. of the Impugned Order that the Appellant had received payment of interest from the Corporate Debtor.

10. THAT the fact that monies were repayable to the Appellant was unequivocally established and admitted by both the Corporate Debtor and the Respondent. The only issue in controversy before the Hon’ble NCLT was whether interest was payable on the amounts given. The Appellant had provided sufficient proof that interest was payable on the basis of the TDS certificates recording payment of interest by the Corporate Debtor.

11. THAT the Hon’ble NCLT could not have completely ignored the books of accounts of the Corporate Debtor and that of the Appellant both of which asserted that monies to the extent of (at least) Rs. 1,09,26,709/- and Rs. 22,75,037/- were payable by the Corporate Debtor to the Appellant against loan advanced by the Appellant towards Project B and Project A respectively, aggregating to Rs. 1,32,01,749/-.
    The Respondent admitted the Appellant’s claim to the extent of Rs. 1,32,01,749/- basis the books of the Corporate Debtor and admissions of the Corporate Debtor in its Affidavit dated 15.10.2019 filed before the NCLT. Resultantly, only the quantum thereof was disputed. The Impugned Order contravenes the books of the Corporate Debtor and admissions of the Corporate Debtor.

12. THAT the observation in paragraph no. 4.7. of the Impugned Order that the Appellant’s claim qua the Project B was transferred to SPDPL is completely baseless and contrary to the record. There is absolutely nothing placed on record to suggest that any such transfer had taken place. In fact, the record unequivocally demonstrates that the Appellant had independent transactions with the Corporate Debtor and SPDPL, and had filed an independent claims with the Resolution Professionals of the Corporate Debtor and SPDPL.

13. The Appellant had separately paid Rs. 11 Crores to SPDPL. The books of the Corporate Debtor as well as the Appellant still show a balance of Rs. 1,32,01,749/- payable to the Appellant, of which Rs. 1,09,26,709/- is payable towards the Project B. The finding of the Hon’ble NCLT that the Appellant’s claim qua the Project B is not admissible against the Corporate Debtor is patently incorrect.

14. THAT even with respect to the Project B, there was no dispute between the Respondent and the Appellant that the monies given constituted a financial debt and that financial debt was owed by the Corporate Debtor. That being so, by totally rejecting the Appellant’s claim qua the Project B, the Hon’ble NCLT has exceeded the scope of its powers and jurisdiction in the matter and entered findings on issues, that were not in controversy between the parties.

15. THAT the Hon’ble NCLT could not have reversed the finding of the Respondent that there was a financial debt owed to the Appellant qua the Project B by holding that nothing was admissible against the Corporate Debtor qua the Project B. The only issue in controversy before the Hon’ble NCLT was the quantum of claim admitted by the Respondent and not the nature of the debt.

16. THAT the Impugned Order is contrary to the provisions of the IBC and the CIRP Regulations.

17. THAT the Impugned Order is contrary to the principles of justice, equity and good conscience.

18. The Appellant craves leave to add, alter, or delete any of the Grounds in the present Appeal.

10. MATTERS BEFORE ANY OTHER COURTS OR TRIBUNALS

You need to confirm here that all your pending litigation pertaining to the subject matter before the appeal has attained finality/closure before the NCLT or any other authority/court.

1. The Appellant declares that the Appellant had not previously filed any writ petition or suit regarding the matter in respect of which this appeal is preferred before any court or any other authority nor any such writ petition or suit is pending before any of them.

2. It is clarified that the Appellant had filed I.A. No. 711 of 2022 seeking various reliefs with respect to inter alia wrongful constitution of the CoC and rejection of Resolution Plan approved by the CoC. The same was dismissed by the Hon’ble NCLT in its Order dated 19.12.2023. The Appellant is preferring a separate appeal against that Order.

3. It is further clarified that the Appellant had filed IA No. 917 of 2022 before the Hon’ble NCLT alleging that the transaction for sale/purchase of a subsidiary company/ies of the Corporate Debtor was preferential in nature. The same has been heard and reserved for orders. The Appellant reserves its rights to take appropriate action based on the final outcome in the said IA.

11. GROUNDS FOR RELIEF

The grounds for relief are already stated in detail in Para 9 hereinabove.

12. DETAILS OF INTERIM APPLICATION, IF ANY, FILED WITH THE APPEAL

An application seeking urgent stay of the Impugned Order and further interim reliefs.

In case your appeal is not filed within the prescribed time period and you have filed an application seeking condonation of delay in filing the present appeal, specify that here. 

13. DETAILS OF INDEX

An index containing the details of the documents in chronological order relied upon is enclosed.

14. PARTICULARS OF FEES PAID

Like any other petitions/applications, in this case too, you also need to state that fees paid on the memorandum of appeal and interoluctory application/s.      

Particulars of fee payable and details of bank draft in favour of “Pay and Accounts Officer, Ministry of Corporate Affairs, New Delhi” as under:

Name of Bank : Bharat Kosh

Name of the Issuing Branch : Bharat Kosh

Transaction Reference No. : [insert transaction reference ID no.]

Date : 31.01.2024

Amount : 6000/- 

15. LIST OF ENCLOSURES

An index containing the details of the documents being relied upon is enclosed therewith, along with the appeal.

16. CERTAIN OTHER PERTINENT QUESTIONS

1. WHETHER THE ORDER APPEALED AS COMMUNICATED IN ORIGINAL IS FILED? IF NOT, EXPLAIN THE REASON FOR NOT FILING THE SAME.

Yes, the certified copy of the order dated 19.12.2023 is being filed with the present Appeal as Annexure “A”.

2. WHETHER THE APPELLANT IS READY TO FILE WRITTEN SUBMISSIONS/ARGUMENTS BEFORE THE FIRST HEARING AFTER SERVING THE COPY OF THE SAME ON THE RESPONDENTS

The Appellant is not filing any written submission before the first hearing. The Appellant’s submissions at this stage are already summarized hereinabove. The Appellant reserves liberty to file written submissions, if necessary.

3. WHETHER THE COPY OF THE MEMORANDUM OF APPEAL WITH ALL THE ENCLOSURES HAS BEEN FORWARDED TO ALL RESPONDENTS AND ALL INTERESTED PARTIES. IF SO, ENCLOSE POSTAL RECEIPT,/COURIER RECEIPT IN ADDITION TO PAYMENT OF PRESCRIBED PROCESS FEE.

It is submitted that an advance copy of the Memorandum of Appeal with all enclosures has been served upon the Respondents and proof of service has been enclosed with the present appeal.

4. ANY OTHER RELEVANT OR MATERIAL PARTICULARS/DETAILS WHICH APPELLANT DEEMS NECESSARY TO SET OUT

It is submitted that the present appeal is being filed bona fide and in the interest of justice. It is submitted that an I.A. for approval of resolution plan being IA No. 2120 of 2021 has already been filed and is pending adjudication before the Hon’ble NCLT and if no relief is granted and the resolution plan is approved the same would cause irreparable loss to the Appellant.
It is respectfully submitted that in view of the facts and circumstances of the present case, questions of law and grounds of appeal raised herein, the Appellant has a strong case on merits and is entitled the reliefs as sought for in the present Appeal. The Appellant craves leave to add, modify, or amend any plea and/or file additional documents to substantiate the aforesaid facts and pleadings contained in the present appeal, if necessary.

20. RELIEFS SOUGHT

So you would obviously want your claim to be admitted, a stay on effect and operation of the impugned order, etc.- stay all of these reliefs here. 

Considering all that is stated hereinabove, the Appellant most respectfully prays that:

a) This Hon’ble Tribunal may be pleased to allow the Appeal and set aside the Impugned Order dated 19.12.2023 passed by the Hon’ble National Company Law Tribunal, Mumbai Bench, Court-I in the Interloctury Application of the CIRP Petition.

b) This Hon’ble Tribunal may be pleased to pass an Order directing the Respondent to admit the Appellant’s claim as Financial Creditor for its entire claim of Rs. 121,50,41,839/- (Rupees One Hundred Twenty One Crores Fifty Lakhs Forty One Thousand Eight Hundred Thirty Nine Only).

c) Pending the hearing and final disposal of the present Appeal, this Hon’ble Tribunal may be pleased to stay the effect and operation of Impugned Order dated 19.12.2023 passed by the Hon’ble National Company Law Tribunal, Mumbai Bench, Court-I in in the Interloctury Application of the CIRP Petition.

d) Pending the hearing and final disposal of the present Appeal, this Hon’ble Tribunal may be pleased to stay the hearing of the interlocutory application filed by the Respondent for approval of the resolution plan for the Corporate Debtor;

e) Pending the hearing and final disposal of the present Appeal, this Hon’ble Tribunal may be pleased to restrain the Respondent to hold any meetings of the CoC;

f) For such other reliefs as this Hon’ble Tribunal deems fit in the facts of the matter.

g) For costs

DECLARATION BY APPELLANT 

The appellant(s) above named hereby solemnly declare (s) that nothing material has been concealed or suppressed and further declare(s) that the enclosures and typed set of material papers relied upon and filed herewith are true copies of the original(s)fair reproduction of the originals / true translation thereof. 

Verified at ____________ on this at ______ day of ________ 2025 

Counsel for Appellant (s)

Verification

I __________ (Name of the appellant ), working as _________ in the office of __________ resident of _________ do hereby verify that the contents of the paras ___ to ____ are true to my knowledge/derived from official records and para ____ to ___ are believed to be true on legal advice and that that I have not suppressed any material facts.

Date:

Place:

Signature of the appellant or authorised officer

Which ancillary documents should be attached to the memorandum of appeal?

Following are the documents that must be annexed along with the memorandum of appeal:

1. Memo of parties
2. Synopsis 
3. List of dates and events
4. Memorandum of appeal
5. Exhibits 
6. Application seeking condonation of delay in filing appeal under section 61 of the IBC (if there is a delay) 
7. Application for stay 
8. Court fee
9.  Vakalatnama with board resolution 
10.  Proof of service

How are the cases listed?

1. At first, the daily cause list is prepared and published 

The Registry must prepare and display the cause list on the notice board before the end of each working day for the next working day.

2. In the cause list, matters are listed in the following order of priority

• Pronouncement of orders
• Cases requiring clarification
• Admission cases
• Cases for orders or directions
• Part-heard cases (latest ones take precedence)
• Cases posted as per numerical order or as directed by the Bench

What are the contents of a cause list?

• Number of appeal, day, date, time, court hall, and names of presiding members (Chairperson, Judicial Member, and Technical Member)
• Names of legal practitioners and their party representation
• Names of unrepresented parties with their ranks

This is how a case is entered in a cause list- 

National Company Law Appellate Tribunal 

 Mumbai Bench 

Court-1 

  Hearing through- Hybrid mode

Coram- SH. [Name of the member] (Judicial) and 

SH. [Name of the member]  (Technical)

Sr. No.	Case No.	Names of the parties	Counsel for Petitioner	Counsel for Respondent
State the purpose for which the matter is listed (For instance: For Admission)
1.	CP NO. 65 of 2025	–

3. Carry forward and adjournment of cases

• If a bench does not function due to a holiday or unforeseen reason:
  The cause list for that day will be carried forward to the next working day unless directed otherwise. 
• If a bench sitting is cancelled due to a member’s unavailability:

The Registrar will adjourn the cases to a suitable date unless otherwise directed, and the new dates or directions will be posted on the Registry’s notice board.

4. Listing of urgent matters

An urgent matter filed before noon shall be listed before the NCLT on the following working day if it is complete in all respects. in exceptional cases, it may be received after noon but before 3.00 P.M. for listing on the following day, with the specific permission of the Bench.  

What is the process followed for adjudicating the appeal?

What renders a memorandum of appeal defective? 

Your appeal may be marked as defective and risk rejection if any of the following deficiencies are present:

1. Delay in filing without a proper application for condonation; 
2. Non-payment or insufficient payment of court fees;
3. Lack of proper format that is when Form NCLAT-1 is not duly followed; 
4. Non-attachment of certified copy of the impugned order;
5. Unsigned or improperly signed documents. 

FAQs

1. Who can file an appeal before the NCLAT under the IBC?

Anyone aggrieved by an order of the NCLT including financial creditors, operational creditors, corporate debtors, resolution professionals, or even third parties can file an appeal under section 61 of the IBC.

2. What is the time limit to file an appeal before the NCLAT?

The appeal must be filed within 30 days of receiving the NCLT order. An extension of 15 days may be granted if you show sufficient cause. Beyond 45 days, the appeal will be dismissed as time-barred.

3. What is the court fee payable on an appeal and interlocutory application filed along with it? 

Court fees payable on memorandum of appeal is Rs. 5000/-. In case of interlocutory application filed along with the appeal, one needs to pay an additional filing fee of Rs. 1000 for every application filed. 

4. Is NCLAT located only in New Delhi?

No, the Principal bench of NCLAT is located in New Delhi. However, there is also a circuit bench in Chennai, which is established for the convenience of litigants in the southern part of India. 

5. Can I seek a stay on the NCLT order during the appeal? 

Yes. You can file an interim application seeking a stay or injunction. NCLAT may grant interim relief to maintain status quo until the final hearing. 

6. Will the NCLAT re-hear the entire case?

No, NCLAT generally does not conduct a fresh trial. It reviews the legality, correctness, and reasonableness of the NCLT’s decision based on facts already on record, unless fresh evidence is crucial.

7. Can new facts be introduced during the appeal?
   Only in exceptional cases. NCLAT may allow new documents or facts if they are crucial and were not available earlier despite exercising due diligence.
8. Can a party appear without a lawyer before NCLAT?

Yes. A party can appear in person or through an authorised representative, but it’s highly recommended to have legal counsel due to the technical nature of IBC proceedings.

9. What recourse do I have if I am aggrieved with the decision of the NCLAT? 

You may approach the Hon’ble Supreme Court within 45 days from the date of recieving the NCLAT order.