TaxTMI 
TaxTMI 
2023 (8) TMI 486
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.... issues: - "1. Whether this Tribunal, under its residuary power contained in Section 60(5)(C) of I&B Code, entertain the plea of legality or otherwise of the assignment of debt in favour of the Petitioner? 2. Whether the documentary evidence furnished with application show that a debt is due and payable and has not been paid by the corporate debtor?" The Learned Adjudicating Authority while giving its finding in the first issue observed as follows: - "8. At the outset it may be stated that, this being a petition filed under Section 7 of IBC at the behest of the financial creditor for initiation of CIRP against the Respondent/Corporate Debtor herein, as regards scope of enquiry in this petition, we refer to the authoritative ruling of the Hon'ble Supreme Court of India, in re, Mobilox, where in it was held that, "On the other hand, as we have seen, in the case of a corporate debtor who commits a default of a financial debt, the adjudicating authority has merely to see the records of the information utility or other evidence produced by the financial creditor to satisfy itself that a default has occurred. It is of no matter that the debt is disp....
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....ry Tribunal, Hyderabad for recovery of his dues against the same Corporate Debtor which had agreed to pay the debt in three tranches but had instead breached the Agreement. 3. Succinctly put, the facts in this case are that the Appellant, shareholder and the Corporate Debtor had executed a share subscription, share purchase and shareholders agreement with M/s. Indu Projects Ltd. on 02.10.2007. A Rupee Loan Agreement was executed between IDFC and the Corporate Debtor on 08.09.2008 for disbursement of loan of Rs.60 Crores and a sum of Rs.45 Crores was disbursed by IDFC on 11.09.2008. A Common Loan Agreement was executed between the Corporate Debtor, IDFC, IFCI, Andhra Bank and other Banks on 27.02.2009. A 'Lender Creditor Agreement' was also executed between the Corporate Debtor and IDFC, IFCI, Andhra Bank and others. On 13.10.2013, the loan account of the Corporate Debtor was declared as NPA which then transferred its right under the Loan Documents to EARC vide an Assignment Agreement dated 24.12.2013. 4. The Learned Senior Counsel for the Appellant submitted that since the date of default, being the same as the date of declaration of the loan account of the Corporate Debtor a....
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....ppressed prior CIRP proceedings against the Corporate Debtor which was based on the same loan documents, which was set aside by the National Company Law Appellate Tribunal and upheld by the Hon'ble Apex Court. It is further contended by the Learned Senior Counsel that the present proceedings are barred by limitation as the default goes back to the final date of declaration of NPA i.e. 13.10.2013 and that the three years period had expired on 13.10.2016 itself whereas this petition was filed only in June 2021. 7. The Learned Senior Counsel drew our attention to the findings given by the National Company Law Appellate Tribunal, Principal Bench in the prior CIRP proceedings vide its Judgment dated 22.05.2020, whereby and whereunder it was observed as follows:- "14. ...In the instant case, the date of default as mentioned in part IV of the Application is 15.10.2013. It is the Respondent's case that the date of default is to be taken at 30.06.2014 as observed by the Adjudicating Authority. 15. We observe from the letter dated 02.07.2014, that the date of default is 30.06.2014 though the date of default mentioned in Part IV of the Application, is 15.10.2013. In this ....
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....occurring on or after 25.03.2020, embargo is in place for a period for six months and is extendable up to one year from 25.03.2020 and therefore, the said restriction does not prevent the initiation of CIRP against the Corporate Debtor in the event that the default continues even after the period of one year from 25.03.2020. It is further submitted that the limitation issues raised by the Appellant is a non-starter and a compromise memo was entered into on 03.05.2020 and the Section 7 Application was filed in June 2021 and therefore, the Section 7 Petition, is not barred by limitation. ASSESSMENT : - 11. It is seen from the Impugned Order that the earlier CIRP Proceedings initiated against the same Corporate Debtor, which was held to be barred by limitation and also upheld by the Hon'ble Apex Court in Civil Appeal bearing No. 3509 of 2020 vide order dated 25.01.2021, was not brought to the notice of the Adjudicating Authority. Factually, one of the lenders of the consortium, IFCI Limited filed Petition under Section 7 of the Code, bearing No. CP(IB)/26/7/HDB/2018 titled 'IFCI Ltd. versus Indu Tech Zone Pvt. Ltd.'. This Petition was admitted by the Adjudicating Authority on 08....
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....udgment of the Hon'ble Apex Court in the matter of 'Ramesh Kymal versus M/s. Siemens Gamesa Renewable Power Pvt. Ltd.' reported in Civil Appeal No.4050 of 2020 wherein discussing the applicability of Section 10-A, the Hon'ble Apex Court has held as follows: - "8. The issue which falls for determination in this appeal is whether the provisions of Section 10A stand attracted to an application under Section 9 which was filed before 5 June 2020 (the date on which the provision came into force) in respect of a default which has occurred after 25 March 2020. Before proceeding to discuss the rival submissions, it is necessary to preface the discussion with reference to three significant dates which have a bearing on the present proceedings: * 30 April 2020 - date of default as set up in Form 3; * 11 May 2020 - date of institution of the application under Section 9; and 5 June 2020 - date on which Section 10A was inserted in the IBC. 9. The date of default is crystalized as 30 April 2020 in the demand notice issued by the appellant in Form 3, which is prescribed under Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority....
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.... 10, as the case may be:" 19. Section 5(11) stipulates that the date on which a financial creditor, corporate applicant or operational creditor makes an application to the adjudicating authority for initiating the CIRP is the "initiation date". Distinguished from this is the "insolvency commencement date", which is the date on which the application for initiating the CIRP under Sections 7, 9 or 10, as the case may be, is admitted by the Adjudicating Authority. 20. The substantive part of Section 10A adverts to an application for the initiation of the CIRP. It stipulates that for any default arising on or after 25 March 2020, no WWW.LIVELAW.IN LL 2021 SC 72 12 application for initiating the CIRP of a corporate debtor shall be filed for a period of six months or such further period not exceeding one year "from such date" as may be notified in this behalf. The expression "from such date" is evidently intended to refer to 25 March 2020 so that for a period of six months (extendable to one year by notification) no application for the initiation of the CIRP can be filed. The submission of the appellant is that the expression "shall be filed" is indicative of a legislati....