TaxTMI 
TaxTMI 
2025 (5) TMI 1840
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....bursed a loan of Rs. 1.5 Cr. to the Corporate 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.....
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....020. The date of default cannot be shifted merely because another Demand Notice was served later on the Corporate Debtor. 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 The Appellant challenged the order dated 10.04.2023 by way of an appeal filed under Section 61 of the Code but it was withdrawn by the Appellant on 12.07.2023.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 conte....
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....or changed and has made a reference to the law laid down by this Court in the case of Ramdas Datta (Suspended Director of Saraju Flour Mill Pvt. Ltd. Vs. IDBI Bank and Anr., 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 ....
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....ruptcy Code, 2016 ("IBC") read with Rule 11 of the National Company Law Tribunal Rules, 2016 by the Applicant/ Financial Creditor above named herein seeking amendment to the captioned Petition. 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.....
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....Debtor if the present application is allowed, especially since the Corporate Debtor has not filed a response to the captioned Petition till date. As per the law laid down by Hon'ble Supreme Court, a Petition filed under Section 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 natu....
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....nitiation of insolvency proceedings for defaults arising during the COVID-19 pandemic. Therefore, in accordance with the law, no insolvency proceedings can be initiated based on a demand made during this period 13. In the end, the Respondent/Corporate Debtor has prayed for the 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....
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....l and others Vs. K.K. Modi and others, (2006), 4 SCC 385 whereby it has been held by the Hon'ble Supreme Court that at the stage of the amendment, the court should not go into correctness or falsity of the case in the amendment. Therefore, the admissibility of the Petition under the provisions of the Insolvency and Bankruptcy 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....
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....rits and he may be permitted to withdraw the appeal, meaning thereby, the order dated 10.04.2023 by which the first petition was dismissed remained unchallenged. It is further alleged that the Appellant only sought liberty to file fresh application on appropriate materials which though were not disclosed to the Court but in any case, the Appellate 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 petit....
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....different from the facts of the present case. 26. In the case of SIDBI (Supra), the Corporate Debtor, namely, Sambandh Finserve Pvt. Ltd. was sanctioned two term loans of Rs. 20 Cr. and 30 Cr. on 21.02.2019 and 23.10.2019. The loan agreements were executed on 26.02.2019 and 25.10.2019 in respect of the said loan amounts. 27. The terms and conditions 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 ....
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....ith interest as it was stipulated in the case of SIDBI (Supra) giving a separate cause of action to the Financial Creditor in the present case, to avail the date of default with every failure of payment of instalment, secondly, the entire loan was payable on demand for which the Appellant had served a notice on 30.01.2021 by which Respondent was called upon to pay/clear the outstanding dues within 5 days i.e. up to 04.02.2021 and since no payment was made, therefore, the first application was filed under Section 7 of the Code with the date of default as 04.02.2021 which is hit under Section 10A and as a result of which the first application was dismissed as not maintainable. 35. Merely the fact that the liberty was given to the Appellant by this court and he failed to pursue the first appeal filed against the order dated 10.04.2023 does not mean that the Appellant can change the date of default at its convenience alleging that after default occurred on 04.02.2021, the Appellant had served reminder to the Respondent. 36. Moreover, unlike the case of Streamcast, which too had been filed by the Appellant, the Appellant never tried to amend the pleadings before the Tribunal and h....
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....aimed at the rate of 18% is attached herewith as Exhibit "I". DATES 4. ON The Financial Creditor, on 30" January, 2021. issued a demand notice to the Corporate Debtor DEFAULTS OCCURRED inter alia recalling the Short Term Loan along with interest calculated at 18% per annum from 1" (ATTACH THE August, 2019 till date. By way of the said demand WORKINGS FOR notice, the Corporate Debtor was given 5 (five) DAYS OF days to remit the principal amount, along with DEFAULT IN WHICH THE interest. A copy of the said email is annexed herewith as Exhibit "J". However. no payment was received from the Corporate Debtor. TABULAR FORM) The Financial Creditor, again, issued a Demand Notice on 250 January, 2022 recalling the entire outstanding principal amount of the Short Term Loan immediately on receipt of the Demand Notice by the Corporate Debtor. A copy of the Demand Notice is annexed herewith as Exhibit "K". However, no payment has been received from the Corporate Debtor till date. Thereafter, several follow up communications were addressed as detailed herein below. In light of the above, the date on which the default first occurred was 4º February, 2021 i.e. 5 da....