TaxTMI 
TaxTMI 
TaxTMI 
2022 (9) TMI 1007
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of the Companies Act, 1956 on 26.10.1987 having its registered office situated at Flat No. 502, 502-A, 5th Floor, 23-Barakhamba Road, Narain Manzil, New Delhi-110001. Since the registered office of the respondent corporate debtor is in New Delhi, this Adjudicating Authority having territorial jurisdiction over the NCT of Delhi is the Adjudicating Authority in relation to the prayer for initiation of Corporate Insolvency Resolution Process in respect of respondent corporate debtor under sub-section (1) of Section 60 of the Code. 3. The brief facts of the case leading to filing of this petition as averred by the applicant in its petition and argued by the learned counsel for the applicant are as follows: a. The applicant submits that the applicant had entered into various loan agreements with the corporate debtor during the period from December 2017 to March 2020, under which the applicant provided loan to corporate debtor for construction and/or development of housing/residential projects. The applicant further submits that a loan agreement dated 31.03.2020 for an amount of Rs. 184,00,00,000/- was sanctioned vide sanction letter dated 28.03.2020. The applicant adds that the loan....
X X X X Extracts X X X X
X X X X Extracts X X X X
....h 31, 2020 and the sanction letter dated March 28, 2020 ii. Copy of statement of account showing disbursement of the aforesaid amount under the Loan Facility iii. Copy of NOIDA authority's letter dated September 4, 2020 iv. Copy of cure notice dated October 20, 2020. v. Copies of the Loan Recall Notice dated December 15, 2020 together with courier receipts. vi. A copy of the relevant communication from the bank along with the notice dated April 8, 2021 4. The defence placed by the corporate debtor in its reply and argued by the learned counsel for the corporate debtor are stated in brief as below:- a. The corporate debtor submits that present petition is not maintainable in view of Section 10A of the Code, 2016. The corporate debtor further submits that the "Event of Default" occurred for the first time on nonpayment of outstanding amount in relation to the Loan facility" which was allegedly re-called on December 15th, 2020. To support the contention, the corporate debtor relied on the citations CP(IB)-418(ND)/2021(Interactive Communication Service (India) Private Limited v. Shipra Estate Limited) and CP(IB)-434(ND)/202I (Icon Project India Private Limited v. Shipr....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the rejoinder to the reply submitted by the corporate debtor. The submissions of the applicant in the rejoinder are stated herein in brief:- a. The applicant submits that the Date of Default as mentioned in the petition is of 05.04.2021, being the date on which the Corporate Debtor's cheques were dishonoured and the bar under Section 10A of the Code is for defaults between 25.03.2020 to 24.03.2021. The corporate debtor further submits that Section 10A of the Code, 2016 only bars the remedy under Section 7, 9 and 10 of the Code, but does not extinguish the debt which has already accrued. To support the submission, the applicant placed reliance on citation Ramesh Kymal v. Siemens Gamesa Renewable Power (P) Ltd., (2021) 3 SCC 224. b. The applicant submits that post-dated cheques were issued by the corporate debtor as an acknowledgement of its future obligation to repay the amount under the Loan Agreement. The applicant further submits that on a conjoint reading of Clause 2.2, Clause 3.1.4, Clause 12.3, the applicant encashed the cheques of the Corporate Debtor to recover the outstanding dues under the Loan Recall Notices and the dishonoring of the cheques constitutes a 'd....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e as raised by the corporate debtor. The provision of Section 10 is reproduced herein verbatim:- the amount under the Loan Agreement. The applicant further submits that on a conjoint reading of Clause 2.2, Clause 3.1.4, Clause 12.3, the applicant encashed the cheques of the Corporate Debtor to recover the outstanding dues under the Loan Recall Notices and the dishonoring of the cheques constitutes a 'default' of an acknowledged liability. c. The applicant submits that the applicant has a right of enforcement of the corporate debtor's securities on account of the Corporate Debtor committing an 'Event of Default' under the loan agreement and availing the independent remedies by the applicant enforcing the securities under loan agreement are not a bar to admission of CIRP under the Code, 2016. To support the contention, the applicant place reliance on Hon'ble NCLAT, Chennai Judgement dated 11.05.2022 in Amar Vora v. City Union Bank Ltd., Company Appeal (AT) (CH) (Ins) No. 130 of 2022. d. The applicant submits that it is a settled law that any pending proceeding challenging the contractual default has no bearing on the proceedings under Section 7 of the C....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e said sections before 25th March, 2020." 7. Further going into the legislative intent and the proviso to Section 10A of the code, which stipulates that "no application shall ever be filed" for the initiation of the CIRP "for the said default occurring during the said period, we are of the considered view that the expression "shall ever be filed" is a clear indicator that the intent of the legislature is to bar the institution of any application for the commencement of the CIRP in respect of a default which has occurred on or after 25 March 2020 for a period of six months, extendable up to one year as notified. 8. On a perusal of the provision of section 10A of the Code, it is apparent that the provision bars the filing of an application in a situation, where the default has occurred during the period from 25.03.2020 to 24.03.2021. We further place our reliance in case Ramesh Kymal versus Siemens Gamesa Renewable Power Private Limited", reported in (2021) 3 SCC 224, wherein the Hon'ble Supreme Court of India held: "The correct interpretation of Section 10A cannot be merely based on the language of the provision; rather it must take into account the object of the Ordinance a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....relevant part of the Loan Recall notice dated 15.12.2020 is reproduced herein in verbatim for ready reference:- "In view of the aforesaid and pursuant to the provisions of the Loan Document, without prejudice to our rights and remedies, we hereby recall the outstanding Loan(s) and call upon you to forthwith pay us all the amount(s) payable to the Lender under the Loan Documents (including the amount(s) specified herein below) within 7 (seven) days from the date of receipt of notice. Please note that in the event the above mentioned amounts are not paid by the Borrower(s), we would be constrained to initiate all such legal actions as permissible in law to recover all amount(s) payable to the lender under loan document(s) including the amount specified hereinabove not limited to filing petitions under the provisions of the Insolvency and Bankruptcy Code, 2016." **** 11. It is being contended on behalf of the respondent that the security which was given by the respondent to the applicant for availing the loan facility was though revoked by Noida Authorities, but that said issue is under challenge and the writ petition has been filed apart from initiating arbitration proceedings....