TaxTMI 
TaxTMI 
2022 (7) TMI 834
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....rofessional to submit a Report in exercise of powers conferred under Section 99 of the IBC. The Adjudicating Authority further directed that the Application be listed on 14th July, 2022 for further consideration. The orders impugned in these three Appeal(s) are almost on the same facts and circumstances, raising similar issues, hence, all these Appeal(s) have been heard together and are being decided by this common judgment. 2. It shall be sufficient to notice the facts in Company Appeal (AT) (Insolvency) No. 721 of 2022 for deciding all these three Appeal(s). 3. The State Bank of India filed an Application under Section 95, sub-section (1) on 01.10.2021 before the Adjudicating Authority, which Application came to be subsequently numbered as Case No. CP-IB 111 of 2022. The Appellant Krishan Kumar Basia, the Guarantor of M/s. Gee Ispat Private Limited, Corporate Debtor also filed an Application under Section 94 on 25.10.2021, which was registered as CP-IB 788/2021. The Application under Section 95 by State Bank of India was filed earlier in point of time, but the Application filed by Personal Guarantor was registered earlier in point of time. In the Application, Guarantor had ....
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.... 26 of Part-III of NCLT Rules, 2016 (hereinafter referred to as the "NCLT Rules") are made applicable. The Rules provided procedure for presenting an Application and unless the Application is filed in accordance with the Rules, the Application cannot be treated to be filed and it is only when the Application is scrutinized and numbered by the Registry, the same shall be treated to have been filed. It is submitted that although Application by the State Bank of India was presented in the Registry on 01.10.2021 and the Application under Section 94 was filed by the Personal Guarantor on 25.10.2021, but the Application of the Guarantor was numbered on 22.12.2021, that is prior to numbering of Application of State Bank of India, which could be done only on 18.02.2022. Hence, the Application under Section 94 being prior in time the Moratorium shall kick in. It is submitted that Adjudicating Authority committed error in holding that Application of State Bank of India was filed on 01.10.2021. 7. The learned Counsel for the Respondent refuting the submissions of learned Counsel for the Appellant submits that Rule 2, sub-Rule 14 of NCLT Rules itself provide that "filed" means filed in the ....
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....cuments shall be filed in electronic form, as and when such facility is made available and as directed by the Adjudicating Authority: Provided that till such facility is made available, the applicant may submit accompanying documents, and wherever they are bulky, in electronic form, in scanned, legible portable document format in a data storage device such as compact disc or a USB flash drive acceptable to the Adjudicating Authority." 11. The above Rule makes it clear that procedure for filing of Application by Guarantor or Creditor under Rules 6 and 7 of 2019 Rules, is the same. As per Rule 10, sub-rules (a) & (b), Rules 20 to 24 and 26 of Part-III of NCLT Rules, which are made applicable. 12. Now we revert to Rule 20 to 24. Rule 20 deals with the "procedure', which is to the following effect: "20. Procedure.-(1) Every appeal or petition or application or caveat petition or objection or counter presented to the Tribunal shall be in English and in case it is in some other Indian language, it shall be accompanied by a copy translated in English and shall be fairly and legibly type written, lithographed or printed in double spacing on one side of standard peti....
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....non-compliance of this may constitute a valid ground to refuse to entertain the same. (2) Every petition or application or appeal may be accompanied by documents duly certified by the authorised representative or advocate filing the petition or application or appeal duly verified from the originals. (3) All the documents filed in the Tribunal shall be accompanied by an index in triplicate containing their details and the amount of fee paid thereon. (4) Sufficient number of copies of the appeal or petition or application shall also be filed for service on the opposite party as prescribed under these rules. (5) In the pending matters, all applications shall be presented after serving copies thereof in advance on the opposite side or his authorised representative. (6) The processing fee prescribed by these rules, with required number of envelopes of sufficient size and notice forms shall be filled alongwith memorandum of appeal." Rule 23, sub-rule (1) provides that every application etc. be presented in triplicate by the appellant in the prescribed form with stipulated fee at the filing counter. 13. Section 96 of the Code uses the exp....
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....ier in point of time, the State Bank of India's petition, which was numbered subsequently is to be treated as non-est and could not have been considered by the Adjudicating Authority. The learned Counsel for the Appellant in support of his submission has relied on judgment of this Tribunal in Ravi Ajit Kulkarni v. State Bank of India in Company Appeal (AT) (Ins.) No.316 of 2021 decided on 12th August, 2021. 16. The expression 'filing' is defined in several statutes. We may first notice the dictionary meaning of filing. In P Ramanatha Aiyar - Advanced Law lexicon (6th Edition Vol. 2, D-1) defines the 'filing' as follows: "Filing. Delivery of a paper to the proper officer to be kept on file; placing and leaving a paper among the files; placing a paper in the proper official custody; presenting a paper at the proper office and leaving it there, deposited with the papers in such office; placing a paper in the proper official's custody by the party charged with this duty, and the making of the proper indorsement by the officer." 17. The expression 'filing' has been used in NCLT Rules; IBC, as well as 2019 Rules as noted above. Rule 10 deals with filing of application and ....
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....es, which consequences flow immediately after filing of the Application. If we accept the submission of the Appellant that filing is postponed till it is numbered, it will lead to uncertainty and allow the Guarantors and other Respondents to delay the moratorium by pleading that filing is not complete, since the Application has not yet numbered. The statutory scheme, thus, does not in any manner support the submission of learned Counsel for the Appellant. Numbering of Application is essential for different purpose and cannot be equated with the filing as contemplated by the Rules. 19. We may also refer to the judgment of Hon'ble Supreme Court in Surendra Trading Company vs. Juggilal Kamlapat Jute Mills Company Ltd. and Ors. - (2017) 16 SCC 143, which was a case where Hon'ble Supreme Court had occasion to consider various provisions of the Code. Hon'ble Supreme Court noticed the various stages as indicated from the provisions of the Code. Paragraph 23 and 23.1, which is relevant, is to the following effect: "23. Various provisions of the Code would indicate that there are three stages: 23.1. First stage is the filing of the application. When the application is f....
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....he report......" 22. In Ravi Ajit Kulkarni's case, the question as to whether the date of filing of an Application is when an Application is filed in the electronic form or the date of filing is the date when Application is numbered, did not arose for consideration. This Tribunal was noticing only the scheme under Section 94 and 95 and in paragraph 39 in the above context has noticed Rule 22 to 24 and 26 of NCLT Rules. The observations in paragraph 39, on which reliance has been placed by the learned Counsel for the Appellant cannot be said to contain any ratio that the date of filing an Application is the date when the Application is numbered by the Tribunal. 23. In this reference, we may notice one judgment of the Hon'ble Supreme Court in (2006) 2 SCC 777 - Vidyawati Gupta and Ors. vs. Bhakti Hari Nayak and Ors. The Hon'ble Supreme Court in the above case had occasion to consider the question as to when a plaint is treated to be filed. The High Court had occasion to consider the rules, provisions of CPC as well as Calcutta High Court (Original Side) Rules. In the above case, a suit was filed before the Original Side of the Calcutta High Court on 26.07.2002. An interim injun....
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....ence made in sub-rule (3) of Rule 1 Order 4 of the Code would also include the amendments brought about in the said orders with effect from 1-7-2002. Consequently, it was urged that since the amended requirements of sub-rule (4) of Rule 15 Order 6 had come into operation with effect from 1-7-2002 and since the suit had been instituted thereafter on 26-7-2002, the same could not be said to have been duly instituted within the meaning of sub-rule (3) of Rule 1 Order 4 of the Code. It was urged that the entire proceedings from the filing of the plaint and the entertaining of the interlocutory applications by the learned Single Judge was without jurisdiction and was liable to be declared as such. The findings of the Division Bench of the Calcutta High Court has been noted in paragraph 26 : "26. After considering the various provisions of the Code along with the relevant amendments introduced in the Code with effect from 1-7-2002 and the relevant provisions of the letters patent and after considering various decisions cited at the Bar, in particular the decision of this Court in State of M.P. v. M.V. Narasimhan [(1975) 2 SCC 377 : 1975 SCC (Cri) 589 : AIR 1975 SC 1835] the a....
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....rd to the provisions of sub-rule (3) of Rule 1 Order 4 of the Code, the suit will be deemed to have been instituted on the date on which the defects stood cured and not from the date of initial presentation of the plaint. The Hon'ble Supreme Court allowed the Appeal and set-aside the Division Bench judgment of the High Court holding that any omission in respect of the plaint shall not render the plaint invalid and that such defect or omission was curable and plaint shall also date back to the presentation of the plaint. In paragraph 50, the Hon'ble Supreme Court also held that amendments were procedural in nature and non-compliance therewith would not automatically render the plaint as non-est. In paragraph 50 and 55 following has been laid down: "50. The intention of the legislature in bringing about the various amendments in the Code with effect from 1-7-2002 were aimed at eliminating the procedural delays in the disposal of civil matters. The amendments effected to Section 26, Order 4 and Order 6 Rule 15, are also geared to achieve such object, but being procedural in nature, they are directory in nature and non-compliance therewith would not automatically render the....