TaxTMI 
TaxTMI 
2022 (1) TMI 720
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...., New Delhi (Court No.IV ) in Company Petition No. IB- 699/ND/2019. 2. The Adjudicating Authority while passing the 'Impugned Order' dated 24.05.2021 in Company Petition No. IB- 699/ND/2019 had, inter alia, observed the following at para 14 to 20:- "14.That in the present case, the date of default was mentioned as the date of declaration of NPA as 02.12.2016. In view of the quashing of the declaration of the account of the corporate debtor as NPA, the date of default now can be considered as date of default as recorded in the certificate of information utility services which is 03.09.2016. The application is filed on12.03.2019, which is well within the period of limitation and not barred by law. 15.The registered office of corporate debtor is situated in Delhi and therefore this Tribunal has jurisdiction to entertain and try this application. 16. The Applicant is entitled to claim its dues, establishing the default in payment of the financial debt beyond doubt. The application is complete hence in the light of above facts and records the present application is admitted. 17. The Applicant has proposed the name of Mr. Vijay Kumar Gupta as Insolvency Resolution Professional, ....
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.... 100% export oriental manufacturing unit engaged in manufacturing of conventional men's wear, comprising of jackets, trousers and coats and he was supplied to leading brands of the Company across the world. Their turnover is approx. Rs. 76 Crore and is having net profit of the 15% of the turnover. The R1- Bank has unlawfully and illegally declared the Respondent companies account as 'Non-Performing Asset' (NPA) on 02.12.2016 and initiated proceedings under the Securitisation and Reconstruction Of Financial Assets And Enforcement Of Security Interest Act, 2002 (for short SARFAESI Act, 2002). It is also submitted by the Appellants that on their petition under Section 17 of the SARFAESI Act, 2002 in SA No.91/2017 dated 20.03.2018, the 'Presiding Officer, DRT-II Delhi' has passed the following orders: "20. As seen from the above factual and legal position, the security applicants have established from the Statement of Account that the account was wrongly notified as NPA on 02.12.2016 and, as such, the entire action initiated by the Respondent Bank is vitiated and by the wrong declaration of the account as NPA further proceedings under Section 13(4) of the SARFAESI Act are unsustainab....
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....rt in 'Laxmi Pat Surana Vs. Union Bank of India' 2021 SCC Online SC 267. It has been stated by the R1 that it is clearly established by the report of the 'Information Utility' that the date of default is 03.09.2016. The report of the 'Information Utility' is one of the evidences that can be used by the Bank/ Financial Creditor to prove the existence of default. The application has been filed on 12.03.2019 within a period of 3 years as required under Section 7 of the Code R/w Article 137 of the Limitation Act. The NPA is only for the purpose of SARFAESI Act, 2002 and the same has nothing to do with the proceedings under the Code. The proceedings under the Code and SARFAESI Act, 2002 are independent and separate proceedings. The Adjudicating Authority has rightly held that they are concerned only with 'default'. The Appellants is nowhere confirming that they have not committed any default or that no amount is due and payable under law. If 'debt' is legally due and payable and 'default' has been committed, the provisions of the Code get triggered and have accordingly, supplemented the stand of the Adjudicating Authority. It was also submitted by the R1- Bank that the question of right....
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....on of the NPA only for the purpose of the SARFAESI Act and the said order is under challenge in an appeal before the DRAT. e. It is a settled law that default is committed first and second stage comes as NPA, if it is not regularized in between the period of default and within 90 days thereafter. In order to bring clarity and brevity on the subject Section 3(11), Section 3(12), Section 5(7), Section 5(8) and Section 7 of the Code is reproduced below for brevity and clarity: "Section 3(11) - "debt" means a liability or obligation in respect of a claim which is due from any person and includes a financial debt and operational debt; Section 3(12) "default" means non-payment of debt when whole or any part or instalment of the amount of debt has become due and payable and is not paid by the debtor or the corporate debtor, as the case may be; Section 5(7) -"financial creditor" means any person to whom a financial debt is owed and includes a person to whom such debt has been legally assigned or transferred to; Section 5(8) -"financial debt" means a debt alongwith interest, if any, which is disbursed against the consideration for the time value of money and includes- (a) money b....
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.... resolution process against the corporate debtor shall be filed jointly by not less than one hundred of such creditors in the same class or not less than ten per cent. of the total number of such creditors in the same class, whichever is less: Provided further that for financial creditors who are allottees under a real estate project, an application for initiating corporate insolvency resolution process against the corporate debtor shall be filed jointly by not less than one hundred of such allottees under the same real estate project or not less than ten per cent. of the total number of such allottees under the same real estate project, whichever is less: Provided also that where an application for initiating the corporate insolvency resolution process against a corporate debtor has been filed by a financial creditor referred to in the first and second provisos and has not been admitted by the Adjudicating Authority before the commencement of the Insolvency and Bankruptcy Code (Amendment) Act, 2020, such application shall be modified to comply with the requirements of the first or second proviso within thirty days of the commencement of the said Act, failing which the applicat....