TaxTMI 
TaxTMI 
2023 (3) TMI 1333
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....: "1. It is an Application filed under Section 95 of IBC, 2016 seeking Initiation of Insolvency Resolution Process as against Mr. P.K. Balasubramanian. An Application as already been filed against the personal guarantor in CP/5/CHE/2022 and this Tribunal vide its order dated 07.06.2022 has already appointed an IRP under Section 97 of IBC, 2016. 2. As per Section 96, IBC, 2016 on filing of an Application under Section 95 of the Code, Interim Moratorium will commence and hence no Application against the same Respondent can be filed before any forum. 3. In view of the same, the present CP/IB/33/CHE/2022 stands dismissed with liberty in accordance with law." 2. It is the main case of the 'Appellant'/'Union Bank of India' that an 'Application' was filed against the 'Personal Guarantor' of the 'Corporate Debtor' / 'M/s. Tebma Shipyard Limited', under Section 95 of the Code read with Rule 7(2) of the 'Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtors) Rules, 2019'. On 31.12.2021, while the 'second Respondent' / 'State Bank of India' ('SBI'), filed a similar Section 9....
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....g it to be defect free. The relevant portion of the Judgement relied upon by the Learned Counsel for the 'Appellant' is extracted below: "24. The above judgement of the Hon'ble Supreme Court also clearly laid down the principle that even if there is any defect in the Application, which is subsequently cured, the date of presentation of the Application shall remain the same and shall not be dependent on the date when defects are cured. We, thus, are of the considered opinion that the Adjudicating Authority after due consideration has taken correct view of the matter in holding that filing of the Application under Section 95 by the State Bank of India is on a date when Application was filed and allotted number electronically and the submission of the Appellant that date of filing of the Application shall be the date when Application is numbered has rightly been rejected." 4. The Learned Counsel appearing for the 'Respondent'/'State Bank of India', submitted that on 07.06.2022, when the matter had come up virtually 'for Hearing', the 'Adjudicating Authority' passed an 'Order' appointing a 'Resolution Professional' ('RP'), and directed it to examine the 'Application', a....
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.....06.2022, passed in CP 5/CHE/2022, it is pertinent to mention that the 'Report', by the 'RP', was called for, to recommend for the 'acceptance' or 'rejection' of the 'Application'. It is seen from the 'Record' that the 'Adjudicating Authority', has not yet admitted or rejected the 'Application', filed by the State Bank of India, under Section 95. Sections 96, 97, 99 & 100 of the 'Code', reads as follows: "96. Interim moratorium.- (1) When an application is filed under section 94 or section 95- (a) an interim-moratorium shall commence on the date of the application in relation to all the debts and shall cease to have effect on the date of admission of such application; and (b) during the interim-moratorium period- (i) any legal action or proceeding pending in respect of any debt shall be deemed to have been stayed; and (ii) the creditors of the debtor shall not initiate any legal action or proceedings in respect of any debt. (2) Where the application has been made in relation to a firm, the interim-moratorium under sub-section (1) shall operate against all the partners of the firm as on the date of the application. ....
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....count of the debtor; (b) evidence of encashment of a cheque issued by the debtor; or (c) a signed acknowledgment by the creditor accepting receipt of dues. (3) Where the debt for which an application has been filed by a creditor is registered with the information utility, the debtor shall not be entitled to dispute the validity of such debt. (4) For the purposes of examining an application, the resolution professional may seek such further information or explanation in connection with the application as may be required from the debtor or the creditor or any other person who, in the opinion of the resolution professional, may provide such information. (5) The person from whom information or explanation is sought under sub-section (4) shall furnish such information or explanation within seven days of receipt of the request. (6) The resolution professional shall examine the application and ascertain that- (a) the application satisfies the requirements set out in section 94 or 95; (b) the applicant has provided information and given explanation sought by the resolution professional under sub-section (4). (7) After examinati....
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....mitted against the said 'Personal Guarantor'. Liberty has also been given in accordance with law to the 'Appellant'/'Union Bank of India' in the 'Impugned Order' dated 07.06.2022 in the event that the Section 95 Application filed by SBI is admitted, the 'Adjudicating Authority' under Section 102 of the Code would issue a 'Public Notice' within 7 days of passing of the Order inviting 'Claims' from all the 'Creditors'. The 'Appellant' in the instant case namely Union Bank of India, can also file their 'Claim' under Section 103 of the Code with the 'RP'. Hence, no prejudice would be caused to the 'Appellant' herein. Further, it is seen from the 'Impugned Order' that though both the Counsels were present, it was not brought to the notice of the Bench that the 'Application', filed by the 'Appellant'/'Union Bank of India', was three days prior to the 'Application', filed by the SBI. 9. A three Judge Bench of this 'Tribunal' in 'Dinesh Kumar Basia' Vs. 'State Bank of India & Anr.' Comp. App. (AT) (Ins.) No.724/2022, has observed as follows: "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 ....
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....d to Rule 1 and it was specifically stipulated that the plaint to be filed in compliance with the provisions of Orders 6 and 7 would not be deemed to have been duly instituted unless it complied with the requirements specified in sub-rules (1) and (2). It was the further case of the appellants that having regard to the provisions of Chapter 7 Rule 1 of the Original Side Rules, the reference 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: ....
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....d submission was made that the defect, if any, in the plaint is a mere irregularity and can be cured by the amendment and consequently when the verification in the plaint is amended, the plaint must be taken to be presented not on the date of the amendment, but on the date when it was first presented. It was submitted that Division Bench of the Calcutta High Court erred in holding that having regard 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....
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....in the present case, though the Section 95 Application was filed on 31.12.2021 and was assigned a Registration No. and SBI had filed an 'Application' on 03.01.2022, the 'Registry', had registered the Section 95 Application of SBI, on 12.01.2022 and that of Union Bank of India on 09.02.2022. Though the Appellants' Section 95 Application came up 'for Hearing' on 04.03.2022, 01.04.2022, 02.05.2022 and on 07.06.2022, a perusal of the Order copies establishes that the 'Appellant'/'Union Bank of India', had never brought to the notice of the Bench that another 'Application', was also filed by SBI. The case of the 'Appellant' that they had 'no opportunity', to bring to the notice of the Bench that the Appellant's Section 95 Application was filed in prior point of time i.e., three days prior to the SBI's 'Application', is untenable, keeping in view the fact that the Order copies do not reflect any such submission by the 'Appellant', despite the fact that admittedly the matter was posted on 04.03.2022, 01.04.2022, 02.05.2022 and ultimately on 07.06.2022 to contend that the Bench had indicated that an 'RP', would be appointed in the Application, preferred by the 'Appellant'/'Union Bank of In....