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2022 (8) TMI 178 - AT - Insolvency and BankruptcyInitiation of CIRP proceedings - minimum requirement of threshold limit - Whether the Appellant has locus in the appeal where Section 9 of IBC Petition had been adjudicated by NCLT, New Delhi, Bench-III and Appellant was neither Applicant nor Respondent in that Petition which is been challenged now? - HELD THAT - As per Appellant, Section 9 of IBC Petition is merely to frustrate Section 7 of IBC Petition. Admittedly the Intervention Application No. 10 of 2021 in IB-883(ND)/2020 was withdrawn only to file Section 7 of IBC Petition which has not been decided so far and if current CIRP proceeding is allowed to continue with IRP, Mr. Yogesh Kumar Gupta, Appellant may be at disadvantage. We observe that in this situation at the best in CoC, Appellant will be represented only by an Authorised representative as also admitted by OC in contrast to Appellant participation as dominant FC in CoC in case their Petition under Section 7 of IBC would have been admitted - the contention of Learned Counsel for the Appellant logical that Appellant is directly affected party and therefore, got right to be heard to protect financial interest of hundreds of homebuyers/ allottees we therefore, consider Appellant has locus in this appeal. Is Section 10A of IBC applicable to the Present Case? - HELD THAT - Section 10A of IBC was introduced during turbulent times due to pandemic and the intention of Section was to minimise Insolvency and Bankruptcy Proceedings. Time during pandemic was allowed to all corporate entities to strengthen themselves and keep moving as going concern to avoid Insolvency Bankruptcy cases. It helped economy and society at large. In this background any default arising on or after 25th March, 2020 initially for a period of six months which could be extended by notification, barred for initiation CIRP Proceeding upto 1 year under Section 7, 9 10 of IBC - By way of explanation in Section 10A of IBC, it has been clarified that provisions of this Section shall not be applied to any default committed under the said Sections before 25th March, 2020. It has been brought out that two invoices i.e. Invoice No. BZ-109 dated 1st April, 2020 amounting to Rs. 7,02,100/- and Invoice No. BZ-110 dated 4th April, 2020 amounting to Rs. 4,36,600/- have been issued without any seal and signature. Admittedly, these two invoices dated 1st April, 2020 4th April, 2020 have been issued after 25th March, 2020. Hence, these two invoices will be barred by Section 10A of IBC. Whether the application under Section 9 filed by the Operational Creditor met the criteria of minimum threshold limit of Rs. 1 crore in order to initiate CIRP Proceeding under Section 9 of IBC? - HELD THAT - Respondent mentioned in his submission that the total outstanding amount is Rs. 1,08,12,591/-. He seems to have arrived to have this figure by taking from dues payable and dues paid right from the beginning of contract period in year 2011. The Appellant has locus in the present case - taking into account Section 10 A of IBC amount, two invoices cannot be considered for threshold limit of Rs. 1 Crore - Appeal allowed.
Issues Involved:
1. Locus of the Appellant. 2. Applicability of Section 10A of IBC. 3. Compliance with the threshold limit of Rs. 1 crore for initiating CIRP under Section 9 of IBC. Issue-wise Analysis: Issue (i): Locus of Appellant The Appellant, a Financial Creditor (FC) and homebuyer of the "Blossom Zest" project, was not a party in the Section 9 IBC Petition adjudicated by NCLT on 22nd March 2022. The Appellant had filed an Intervention Application in the Section 9 Petition, which was withdrawn upon advice to file a separate Section 7 Petition. The Appellant argued that the Section 9 Petition was intended to frustrate their Section 7 Petition, and they were directly aggrieved by the Impugned Order, affecting the financial interests of hundreds of homebuyers. The Tribunal found the Appellant to be an aggrieved party with the right to appeal under Section 61 of the IBC, thus establishing their locus in the present appeal. Issue (ii): Applicability of Section 10A of IBC Section 10A of IBC, introduced during the COVID-19 pandemic, suspends the initiation of CIRP for defaults arising on or after 25th March 2020 for a specified period. The Tribunal examined two disputed invoices dated 1st April 2020 and 4th April 2020, which were issued after 25th March 2020. These invoices were barred by Section 10A of IBC. The Tribunal noted that the demand notice issued on 10th April 2020 included these invoices, which should not have been considered due to the suspension period under Section 10A. Issue (iii): Compliance with the threshold limit of Rs. 1 crore for initiating CIRP under Section 9 of IBC Section 4 of IBC requires a minimum default amount of Rs. 1 crore for initiating CIRP. The Respondent (Operational Creditor) claimed outstanding dues of Rs. 1,08,12,591/-. However, excluding the two invoices barred by Section 10A, the outstanding amount fell below the threshold limit of Rs. 1 crore. The Tribunal noted discrepancies in the claimed amounts and concluded that the Petition did not meet the threshold requirement, making it non-maintainable. Conclusion: The Tribunal allowed the appeal, set aside the Impugned Order dated 22nd March 2022, and held that the Appellant had locus in the case. The two invoices dated 1st April 2020 and 4th April 2020 were barred under Section 10A of IBC, and the outstanding amount fell below the threshold limit of Rs. 1 crore, rendering the Section 9 Petition non-maintainable. The Tribunal also directed the IRP to file an application for fees and expenses before the Adjudicating Authority as per law.
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