TaxTMI 
TaxTMI 
2025 (9) TMI 409
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....30.11.2023 by which an application filed by HDFC Bank Limited (Financial Creditor/FC) against M/s Moutain Meadow Holidays Pvt. Ltd. (Corporate Debtor/CD) under Section 7 of the Insolvency and Bankruptcy Code, 2016 (in short 'Code') has been admitted and Umesh Gupta was appointed as the Interim Resolution Professional (in short ' IRP'). 2. The appeal has been filed by Mani Gupta, suspended director of the CD. 3. The CD furnished a corporate guarantee for the loan facility availed by M/s Madhuvan Tieup Pvt. Ltd. which is already in CIRP in IB/25/ND/2023 which was admitted on 05.07.2023. 4. The particulars of the Financial Debt coupled with the date of default mentioned in part iv of the application filed under Section 7 are as under:....
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....2.2023, the following order passed by this Court: - "Learned counsel for the Appellant submits that the Adjudicating Authority passed the order ex-parte since notice was not served. It is submitted that the acknowledgment relied is not acknowledgment under Section 18 of the limitation act. Further, there was no invocation of the guarantee. Learned counsel for the Respondent submits that before the Adjudicating Authority affidavit of service bringing on record all relevant materials was filed. It is submitted that in the application which was filed by the Financial Creditor itself mentions the Loan Recall Notice and Notice under Section 13(2) of SARFAESI Act, 2002 and guarantee was invoked and there was acknowledgment in th....
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....ate of default is mentioned as 27.12.2019 in respect of default committed by the CD but also as per the corporate guarantee deed, the guarantee can be invoked only by way of demand notice which was issued by the Respondent Bank under Section 13(2) of the SARFAESI Act on 28.07.2020 asking the Appellant to make the payment within a period of 60 days which had expired on 27.09.2020. It is also submitted that the Respondent had issued another notice on 01.08.2020 which also fell within the period of 10A which operates from 25.03.2020 to 24.03.2021. The Appellant has relied upon decisions of this court in the case of Pooja Ramesh Singh Vs. State Bank of India & Ors., CA (AT) (Ins) No. 329 of 2023 and Mudit Mandanlal Gupta Vs. Supreme Constructio....
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....lication filed under Section 7 by filing reply etc. 17. Be that as it may, the Appellant has invoked Section 10A of the Code which is a legal issue and goes to the root of the case, therefore, we have examined the case of both the parties and facts available on record to find out as to whether the application filed under Section 7 is hit by Section 10A? 18. Before we proceed with the facts of the case and the law applicable thereto, it would be relevant to refer the Section 10A which is reproduced as under:- "Section 10A. Suspension of Initiation of corporate insolvency resolution process. - Notwithstanding anything contained in section 7, 9 and 10, no application for initiation of corporate insolvency resolution pro....
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....ty Four Crore Sixty Two Lakh Ninety Three Thousand Nine Hundred Forty Nine and Paisa Fourteen Only) as on 17-Jul-2020 together with further interest, penal interest, cost and charges thereon till the date of payment, as per agreed terms and conditions mentioned in the Loan Agreement and other documents pertaining to the Loan/credit facilities availed by you, the Addressees. It is informed that no further notice whatsoever will be given to you and the secured asset will be sold as aforesaid. 21. In this regard, the decision of this Court in the case of Harish Raghavij Patel (Supra) would come to the rescue of the Respondent because in that case it has been held that :- "10. It is well settled that when default is committed during....
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....und subject to several conditions. The Financial Creditor submits that one o the condition was that NOC of Financial Creditor was required to be obtained, whereas no NOC have been obtained from Financial Creditor for the said fund." 11. The Application under Section 7 being filed for default which was on basis of default occurred subsequent to Section 10A period, we are of the view that application was not hit by Section 10A." 22. Thus, in view of the law laid down by this Court in the case of Harish Raghavij Patel (Supra), we are of the considered opinion that there is no substance in the appeal filed by the Appellant for setting aside the impugned order by which the application filed under Section 7 for the resolution of an am....