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2023 (8) TMI 1323 - AT - Insolvency and BankruptcyChange in date of default - application filed by the Financial Creditor is hit by Section 10A of IBC or not - It is submitted that the date of default (30.04.2020) occurs during the period from 25.03.2020 to 25.03.2021, therefore, the petition could not ever have been filed. Whether the date of default once mentioned in Part- IV by the Financial Creditor can be changed in view of a decision of the Hon ble Supreme Court in the case of Ramesh Kymal 2021 (2) TMI 394 - SUPREME COURT - Whether the Financial Creditor (Bank) who has already furnished ROD can change the date of default by a subsequent ROD on the basis of circular dated 03.04.2023 issued by the NCLT? HELD THAT - Since, we have found that there are arguable points involved in this appeal, therefore, we issue a formal notice to the Respondents who is already on caveat, enabling it to file its reply - Let the reply be filed within two weeks i.e. up to 25th August, 2023 and rejoinder, if any, be filed by the Appellant within two weeks thereafter i.e up to 14th September, 2023. List for hearing on 20th September, 2023. In the meanwhile, till the next date of hearing, operation of the impugned order shall remain stayed.
Issues Involved:
1. Correctness of the 'date of default' in the insolvency application. 2. Applicability of Section 10A of the Insolvency and Bankruptcy Code, 2016. 3. Admissibility of revised 'date of default' submitted by the Financial Creditor. 4. Compliance with procedural requirements for filing insolvency applications. Summary: 1. Correctness of the 'date of default': The Appellant contended that the 'date of default' mentioned in Form-I, Part-IV was 30.04.2020, and this was also reflected in the Rejoinder filed by the Bank. However, the Adjudicating Authority relied on a revised 'date of default' of 28.02.2020, which was uploaded during the pendency of the application. The Financial Creditor argued that the date 28.02.2020 was uploaded in the Information Utility (NeSL) after giving six opportunities to the Appellant to respond. 2. Applicability of Section 10A of the Insolvency and Bankruptcy Code, 2016: The Corporate Debtor argued that the application was hit by Section 10A of the Code as the 'date of default' (30.04.2020) fell within the period from 25.03.2020 to 25.03.2021, during which insolvency petitions were suspended. The Adjudicating Authority, however, found that one tranche of the loan had a 'date of default' of 28.02.2020, which was before the suspension period, thus making the application maintainable. 3. Admissibility of revised 'date of default': The Appellant argued that the Adjudicating Authority erred in accepting the revised 'date of default' (28.02.2020) submitted by the Financial Creditor, which was generated on 25.05.2023, after the application was filed on 08.04.2022. The Financial Creditor contended that the revised date was in compliance with Regulation 20(1A) of the IBBI (Information Utilities) Regulation, 2017, and an order dated 03.04.2023 by the NCLT requiring updated NeSL certificates. 4. Compliance with procedural requirements: The Financial Creditor argued that the revised 'date of default' was authenticated by NeSL and was not disputed by the Corporate Debtor despite multiple opportunities. The Adjudicating Authority accepted this revised date, finding that it corroborated with the statement of accounts and the last payment date. Conclusion: The Tribunal found that there were arguable points regarding the change of the 'date of default' and the applicability of Section 10A. A formal notice was issued to the Respondents to file their reply, and the operation of the impugned order was stayed until the next hearing date.
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