TaxTMI 
TaxTMI 
2025 (5) TMI 1840
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....e Debtor / Respondent in three tranches of Rs. 50 Lac each on 11.07.2019, 15.07.2019 and 30.07.2019 respectively. 3. The Appellant filed CP (IB) No. 270/MB/2023 against the Respondent on 06.03.2023 claiming the amount of Rs. 1.50 Cr.with interest of Rs. 1,34,73,905/-, total outstanding amount of Rs. 2,84,73,905 as on 20.02.2023. The said application was filed in terms of Rule 4(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (in short 'Rules') on printed form 1 in which following averments were made in part IV, which read as under : - 4. It is categorically averred in the above application that the default first occurred on 04.02.2021 i.e. 5 days after 30.01.2021. This application was dismissed by the Tribunal, vide its order dated 10.04.2023, on the ground that since the date of default mentioned as 04.02.2021 in part IV falls within the cut off period provided under Section 10A, therefore, the petition was not maintainable. The order dated 10.04.2023 is reproduced as under:- 1. Mr. Nitin Kaskar i/b Adv. Akash Menon, Ld. Counsel for the Financial Creditor present. 2. This is a Petition filed by Rolta Private Limited (Financial ....
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....or. Accordingly, we find that this Petition is not maintainable in terms of Section 10A of the Code. Therefore, Petition C.P.(IB)/270(MB)/2023 is hereby dismissed as not maintainable. 5. The Appellant challenged the order dated 10.04.2023 by way of an appeal filed under Section 61 of the Code but it was withdrawn by the Appellant on 12.07.2023. The order dated 12.07.2023 passed by this Court in CA (AT) (Ins) No. 773 of 2023 is reproduced as under:- This appeal has been filed against the order dated 10.04.2023 by which application under Section 7 filed by the appellant was dismissed as not maintainable in terms of Section 10A. 2. Adjudicating Authority in paragraph 5 has given the reason for dismissing the application as barred by Section 10A. 3. Learned Counsel for the Appellant submitted that apart from the default mentioned in the application there was default prior to Section 10A period and also subsequent to Section 10A period. 4. However, Learned Counsel for the Appellant submits that the appellant does not intent to contest the impugned order on merits and he be permitted to withdraw the appeal with liberty to file a fresh application on appropriate materials. 5. W....
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....2023 SCC Online NCLAT 1306 and a decision of the Hon'ble Supreme Court in the case of Ramesh Kymal Vs. Siemens Gamesa Renewable Power Pvt. Ltd. 2021 (3) SCC 224. It was also held that the date of default 04.02.2021 was coming in between 22.03.2020 to 25.03.2021 the period provided under Section 10 A of the Code as per which no proceeding under Section 7, 9 or 10 can ever be initiated. It is also observed that in the present petition in part IV, the date of default has been claimed as 01.08.2019 whereas the last tranche was disbursed on 30.07.2019, therefore, the date of default cannot be just one day after the date of disbursement especially when there is no written agreement between the parties regarding the terms and condition of the loan more particularly the repayment schedule. The Tribunal has also dismissed the application on the ground that it is barred by order 2 Rule 2 of the CPC as well as Section 11 of the CPC as the matter on the same set of facts ie. in respect of the same financial debt which has already been upheld because the appeal filed by the appellant was withdrawn and the order 10.04.2023 by which the first application was dismissed was not set aside. 12. ....
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.... 2. The captioned Petition has been filed under Section 7 of IBC against the Corporate Debtor with respect to the short-term loan disbursed by the Financial Creditor to the Corporate Debtor, the principal amount of which aggregates to INR 1,50,00,000 (Indian Rupees One Crores Fifty Lakhs Only). The amount of INR 1,50,00,000 was disbursed by the Financial Creditor to the Corporate Debtor in three tranches, viz. (i) INR 50,00,000 on 11th July 2019 ("First Tranche"), (ii) INR 50,00,000 on 15th July 2019 ("Second Tranche") and (iii) INR 50,00,000 on 01 August 2019 ("Third Tranche"). 3. The payments which were made in the First Tranche and Second Tranche during the month of July 2019 were due and payable on 31 July 2019. Since the Corporate Debtor failed to repay the amounts on due date, the amounts with respect to the First Tranche and the Second Tranche stood defaulted on 1 August 2019. The Third Tranche disbursed by the Financial Creditor was to be repaid on the same day, i.e. 1" August 2019 However, the Third Tranche was not repaid on the said date and accordingly, the Third Tranche stood defaulted on 2nd August 2019. In the alternative and in the event the Corporate Debtor deni....
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....ion 7 of the IBC can be amended any time prior to admission of such Petition. The balance of convenience is therefore in favour of the Applicant herein. Hence the application. Reply filed on behalf of the Respondent:- 7. In reply, the Respondent/Corporate Debtor has denied all allegations and/or contentions and/or submissions made by the Petitioner in the Petition which are inconsistent with and/or contrary to what has been stated herein. Further, nothing shall be deemed to have been admitted for the reasons of non-traverse. 8. It is submitted that the Amendment Application filed by the Financial Creditor deserves to be rejected because it fails to demonstrate any substantial cause or compelling reason to amend the Petition. In fact, a perusal of the Amendment Application evinces that the Financial Creditor does not seek to correct any typographical error or clarify an ambiguous statement, but rather to fundamentally alter the nature and substance of the Petition to circumvent Section 10A Code of the Code. 9. It is further submitted that the Amendment Application has been filed by the Financial Creditor after the Corporate Debtor objected to the maintainability of the Petit....
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....he dismissal of the Interlocutory Application. Analysis and Findings : - 14. We have heard the Counsel for the parties and gone through the record. 15. During the course of arguments, Counsel for the Applicant/Financial Creditor has argued that the law with regard to the amendment of pleading. is quite liberal and, therefore, the proposed amendment should be allowed. In support of his contention, Counsel for the Applicant has relied upon Rajesh Kumar Aggarwal and others Vs. K.K. Modi and others, (2006), 4 SCC 385 whereby the Hon'ble Supreme Court has held that the court should not go into correctness or falsity of the case in the amendment, nor record a finding on the merits of the amendment at the stage of considering the prayer for amendment. Counsel for the Applicant has further relied upon North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (2008) 8 SCC 511, whereby it has also been held that all amendments ought to be allowed which satisfy the two conditions : (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real question in controversy between the parties. It was further held that amendments sh....
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....uptcy Code, 2016 shall be determined at the final stage of hearing. Similarly, the point as to whether the Petition is barred under Section 10A of the Insolvency and Bankruptcy Code, 2016 would be decided at the time of admission on the basis of material placed on record. That being so, at this stage, the Applicant cannot be precluded from pleading certain new facts. However, the veracity of such newly pleaded fact will be adjudged at the appropriate stage. Accordingly, we are of the view that the proposed amendment will not cause any prejudice to the Respondent. Therefore, we deem it appropriate to allow the proposed amendment sought by the Applicant. 19. As a result of the above discussion, the IA No. 3541/2023 for amendment in C.P.(IB) No. 259/2023 is allowed. 18. Counsel for the Appellant has further submitted that once the liberty was granted by the Appellate Tribunal vide order dated 12.07.2023 to file a fresh petition, the Tribunal should not have dismissed the application on the ground that it is barred by res judicata and order 2 rule 2 of the CPC. He has referred to a decision of the Hon'ble Supreme Court in the case of K. Shivaramaiah Vs. Rukmani Ammal (2004) 1 SC....
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....ellate Tribunal observed that it was not expressing any opinion on the merits of the claim of the Appellant and also gave liberty to the Respondent to raise 10A if any. It is submitted that the liberty granted to the Appellant vide order dated 12.07.2023 to file a fresh application does not mean that the order dated 10.04.2023 was set aside because the said order was not challenged on merits and was even not set aside by the Appellate Tribunal as the appeal was withdrawn. It is further alleged that the Appellate Tribunal has granted liberty to the Respondent to raise the plea of Section 10A and in this regard, the Respondent has alleged that it in barred by order 2 rule 2 of the CPC because the second petition against the same financial debt was filed and the document which were annexed were also available with the appellant when the first petition was filed. It is further contended that the Appellant has in fact sought to change the date of purported default as well as provide five dates of purported default whereas no effort was made by the Appellant to amend the first petition while it was pending before the Tribunal in respect of the date of default which has been done by it in....
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....ions were duly outlined and the CD hypothecated all its book debts, revenues, receivables and claims as security for the loans and a charge was successfully created and registered with the registrar of companies. 28. The CD was obligated to repay the full principal amount within 36 months from the date of disbursement with installments due on the 10th of each month. The CD committed default after November 2020 and thus the account was classified as NPA on 15.12.2020. 29. The SIDBI consequently filed an application under Section 7 of the Code on 14.09.2022 bearing CP (IB) No. 42/CB/2022 in which the date of NPA was recorded as the date of default as 15.12.2020 which was hit by Section 10A of the Code and the application was thus dismissed. 30. The appeal filed by the SIDBI before this Court bearing CA (AT) (Ins) No. 28 of 2023 was also dismissed holding that date of default in part IV of the application has been mentioned as 15.12.2020 which is a period during which Section 10A was operative and thus there is no error found in the impugned order but liberty was granted to the SIDBI to file a fresh application in accordance with law without expressing any opinion on the merits of ....