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of <h1>IDBI Bank's Section 7 application rejected as time-barred under Section 10A moratorium period for guarantee invocation</h1> NCLAT upheld the adjudicating authority's rejection of a Section 7 application filed by a financial creditor as barred by Section 10A of the Insolvency ... Rejection of Section 7 application filed by the appellant as barred by Section 10A of the Insolvency and Bankruptcy Code, 2016 - invocation of the guarantee by IDBI Bank on 05.03.2021 falls within the Section 10A period or not - HELD THAT:- Clauses 7, 9 & 11, which clearly contemplate invocation of guarantee by the lenders and invocation of guarantee from time to time with respect to the maintenance of the DSRA with the lender. Clause 25 is a general clause where the obligations of the guarantor are not conditional on the receipt of any prior notice by the guarantors of the borrower. Demand notice by the lender to the borrower shall be sufficient notice to on the Demand of the guarantors. The judgment of the Hon’ble Supreme Court in Bank of India & Anr. Vs. B.K. Mohan Das & Ors. [2009 (3) TMI 1004 - SUPREME COURT] noticed where Hon’ble Supreme Court has occasion to consider general principle of construction of a contract. Guarantor has guaranteed that borrower shall maintain the necessary credit balance at all times as provided in recital 2 notice above and even borrower does not maintain the necessary credit balance. Lender can immediately ask the guarantor to credit deposit and repay such amount. The above is clearly provided in Clauses 7, 8, 9, 10 & 11 as noted above. Thus, default on the part of guarantor can only arise when guarantee is invoked as per the explicit clauses of the guarantee deed 7 to 11. Clause 25 cannot be read in manner to make Clauses 7 to 11 unworkable and redundant. IDBI bank in his Section 7 application has clearly pleaded that “on 05.03.2021, financial creditor invoked the guarantee provided by the corporate debtor and called upon the corporate debtor to pay ₹61,97,33,612/-”. Further in Part IV Serial No. 2 again following was pleaded “financial creditor invoked the guarantee on 05.03.2021 and the corporate debtor is in continuous default in terms of the guarantee agreement dated 03.08.2012”. When the appellant financial creditor has come with the categorical case that guarantee was invoked only on 05.03.2021, there cannot be any occasion to treat any other date as date for invocation of guarantee. Although order impugned of the adjudicating authority needs to be affirmed, but liberty need to be given to the appellant, if so, advised to file a Section 7 application for default of corporate debtor subsequent to 10A period i.e., a default subsequent to 24.03.2021. Conclusion - The order impugned passed by the adjudicating Authority dated 19.05.2023, dismissing Section 7 application as barred by Section 10A is upheld - appeal disposed off. 1. ISSUES PRESENTED and CONSIDEREDThe core legal questions considered in this judgment include:- Whether the Section 7 application filed by IDBI Bank against the corporate debtor is barred by Section 10A of the Insolvency and Bankruptcy Code, 2016, due to the default occurring during the specified period.- Whether the invocation of the guarantee by IDBI Bank on 05.03.2021 falls within the Section 10A period, thereby barring the application.- Whether the default by the corporate debtor continued beyond the Section 10A period, allowing the application to be maintainable.- The interpretation of the guarantee agreement clauses to determine the obligations and liabilities of the corporate debtor.2. ISSUE-WISE DETAILED ANALYSISIssue: Applicability of Section 10A of the IBC- Relevant Legal Framework and Precedents: Section 10A of the IBC prohibits the filing of applications under Sections 7, 9, and 10 for defaults occurring during the period from 25.03.2020 to 25.03.2021. The judgment references the Supreme Court's decision in 'Ramesh Kymal' which emphasizes the purposive construction of Section 10A to bar applications for defaults within this period.- Court's Interpretation and Reasoning: The Tribunal found that the invocation of the guarantee on 05.03.2021 falls within the Section 10A period. The Tribunal emphasized that the default on the part of the corporate debtor is tied to the invocation of the guarantee, which occurred during the prohibited period.- Key Evidence and Findings: The Section 7 application and the guarantee agreement were pivotal. The application stated that the guarantee was invoked on 05.03.2021, and the corporate debtor was in continuous default thereafter. However, the Tribunal focused on the initial invocation date.- Application of Law to Facts: The Tribunal applied Section 10A, concluding that since the invocation date fell within the prohibited period, the application was barred.- Treatment of Competing Arguments: The appellant argued that the default continued beyond the 10A period, but the Tribunal held that the application was based on the invocation date, which was during the 10A period.- Conclusions: The Tribunal upheld the adjudicating authority's decision to dismiss the application as barred by Section 10A.Issue: Interpretation of the Guarantee Agreement- Relevant Legal Framework and Precedents: The guarantee agreement clauses, particularly Clauses 7, 9, 10, and 11, were examined to determine the obligations of the corporate debtor. The Tribunal also referenced previous judgments on the interpretation of guarantees.- Court's Interpretation and Reasoning: The Tribunal interpreted the clauses to mean that the guarantee must be invoked by the lender for the corporate debtor's liability to arise. Clause 25, which suggests that notice to the borrower suffices as notice to the guarantor, was harmonized with other clauses requiring explicit invocation.- Key Evidence and Findings: The Tribunal found that the guarantee was explicitly invoked on 05.03.2021, and prior communications did not constitute an invocation.- Application of Law to Facts: The Tribunal applied the principles of contract interpretation, concluding that the invocation of the guarantee was necessary for the corporate debtor's liability to arise.- Treatment of Competing Arguments: The appellant's reliance on Clause 25 was countered by the Tribunal's holistic reading of the agreement, emphasizing the need for explicit invocation.- Conclusions: The Tribunal concluded that the invocation of the guarantee on 05.03.2021 was the relevant date for determining default.3. SIGNIFICANT HOLDINGS- The Tribunal held that the Section 7 application was barred by Section 10A as the invocation of the guarantee, which constituted the default, occurred within the prohibited period. It stated, 'Section 10A bars absolutely and forever, the filing of any application under Sections 7, 9 and 10 of the Code, for defaults committed on or after 25th March, 2020 up to 25th March, 2021.'- The Tribunal emphasized the need for a purposive interpretation of Section 10A to uphold the legislative intent of providing relief to corporate debtors during the specified period.- The Tribunal affirmed the adjudicating authority's decision but granted liberty to the appellant to file a fresh application for defaults occurring after the Section 10A period.- The judgment reinforced the principle that the terms of a guarantee must be interpreted in harmony, ensuring that specific clauses requiring invocation are not rendered redundant.- The Tribunal's decision underscores the importance of adhering to statutory provisions and contractual terms when determining the maintainability of insolvency applications.
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