TaxTMI 
TaxTMI 
2023 (3) TMI 646
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....seem Atwal , for R - 2 . ORDER Per : Justice Rakesh Kumar Jain : ( Oral ) This appeal is directed against the order dated 31.05.2021, passed by the National Company Law Tribunal, New Delhi, (in short 'Learned Tribunal') by which an application bearing I.A. No. 4971 of 2020 filed in C.P. (IB) No. 849 (PB)/2020 by the Appellant, under Section 65 of the Insolvency & Bankruptcy Code, 2016 (in short 'Code'), has been dismissed on the ground that such an application would be maintainable only after the main petition is admitted and CIRP is initiated. 2. The brief facts of the case are that M/s. Sundrm Consultants Pvt. Ltd. filed an application under Section 7 of the Code against M/s Three C Properties Pvt. Ltd. (Corporate Debtor) for ....
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....e present case the CIRP has not yet been initiated. C.P. (IB)-1248(PB) of 2018 is currently being heard by this bench, CIRP has not yet been initiated. The Applicant can approach this tribunal under Section 65 of I & B Code, only once the Petition is admitted and CIRP has been initiated." 5. Aggrieved against the aforesaid decision, the present appeal has been preferred. 6. Senior Counsel appearing on behalf of the Appellant has argued that the Learned Tribunal has committed a patent error of law in misinterpreting the word "initiation" of the Insolvency Resolution Process with admission of the application and initiation of the CIRP proceedings. In this regard, he has referred to Section 65 of the Code under which the application has ....
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....cess 1 [or pre-packaged insolvency resolution process, as the case may be]; (12) "insolvency commencement date" means the date of admission of an application for initiating corporate insolvency resolution process by the Adjudicating Authority under sections 7, 9 or section 10, as the case may be:" 8. Counsel for the Appellant has submitted that the word "initiates" mentioned in the beginning of Section 65 has been wrongly interpreted by the Learned Tribunal because the word "initiate" would fall under Section 5(11) which means the day on which the application for initiation of the corporate insolvency resolution process is filed whereas the insolvency commencement date is the date on which such an application filed for the initi....
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....f admission of application by the adjudicating authority. The "initiation date" ascribes a role to the eligible applicant whereas the "commencement date" rests upon exercise of power vested in the adjudicating authority. Adopting this interpretation would leave no scope for initiation of CIRP of a corporate debtor at the instance of eligible applicant in respect of default arising on or after 25-3-2020 as the provision engrafted in Section 10-A clearly bars filing of such application by the eligible applicant for initiation of CIRP of corporate debtor in respect of such default. The bar created in retrospective as the cut-off date has been fixed as 25-3-2020 while the newly inserted Section 10-A introduced through the Ordinance has come int....
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....ection 65 of the Code, that the application under Section 65 of the Code would be maintainable only once the application under Section 7, 9 or 10 is admitted and the CIRP is initiated. However, in our considered opinion the view taken by the Learned Tribunal is totally erroneous as it has not looked into the basic provisions much less the definitions provided under Section 5(11) and 5(12) of the Code and has been unnecessarily influenced with the word "initiates" used under Section 65 to observe that it would mean that when the CIRP is initiated i.e. after the admission. 14. In this respect, regard may be had to the decision of the Hon'ble Supreme Court in the case of Ramesh Kymal (Supra) in which the Hon'ble Supreme Court has held that ....