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2024 (7) TMI 117 - AT - Insolvency and BankruptcyMaintainability of Application filed under Section 95, sub-section (1) of IBC - Appointment of RP to submit a Report under Section 99 - application filed against Personal Guarantor - moratorium has commenced in the Application filed by the PNBHFL, prior to registration of the Application filed by IFCI - HELD THAT - The three Member Bench of this Tribunal in Krishan Kumar Basia s case 2022 (7) TMI 834 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI has approved the view of the Adjudicating Authority that filing of the Application under Section 95 by the State Bank of India is on the date when the Application was filed and the date shall not be the date when the Application is numbered. Applying the above ratio in the present case, we have to hold that filing of the Application by IFCI, was prior in time and the mere fact that Application filed by PNBHFL was registered earlier is inconsequential and moratorium shall commence on filing of the Application by IFCI. It is further to be noticed that present is not a case that any skelton Application was filed by IFCI - in the present case, there was no such defect in the Application, where it can be termed as a skelton Application. The Kerala High Court in Jeny Thankachan vs. Union of India Ors. 2023 (11) TMI 834 - KERALA HIGH COURT had occasion to consider the issue as to whether on an Application filed under Section 94 by the Corporate Debtor the proceedings under Section 13(2) of SRFAESI Act, 2002, which was initiated by the Bank, shall be deemed to have been stayed. In the above case, the Bank has initiated proceedings under Section 13(2) of the SRFAESI Act. In the above case, proceedings under Section 14 of the SRFAESI Act were filed before Chief Judicial Magistrate, who has passed an order on 30.06.2020. Before the Chief Judicial Magistrate, an affidavit was filed stating that an Application under Section 94 of the IBC was filed on 21.08.2023 before the NCLT, hence proceedings pending before the Chief Judicial Magistrate has to be stayed. The date of filing the Application has to be determined as per statutory Rules governing for filing of Application under Section 95. There are no substance in submission of the Appellant that order passed by Adjudicating Authority dated 01.05.2024 appointing RP, is without jurisdiction. No grounds have been made to interfere with the impugned order - appeal dismissed.
Issues Involved:
1. Jurisdiction of the Adjudicating Authority in passing the order dated 01.05.2024. 2. Commencement of interim moratorium under Section 96 of the Insolvency and Bankruptcy Code, 2016 (IBC). 3. Validity of the filing date of the application under Section 95 of the IBC. Issue-wise Detailed Analysis: 1. Jurisdiction of the Adjudicating Authority: The Appellant challenged the jurisdiction of the Adjudicating Authority, National Company Law Tribunal (NCLT), New Delhi, Bench VI, in passing the order dated 01.05.2024, which appointed the Resolution Professional (RP) to submit a report under Section 99 of the IBC. The Appellant argued that the application filed by another creditor, PNB Housing Finance Ltd. (PNBHFL), was registered earlier, triggering an interim moratorium that prohibited further proceedings against the Personal Guarantor by any creditor. The Tribunal, however, upheld the jurisdiction of the Adjudicating Authority, stating that the filing date of the application by IFCI was prior to that of PNBHFL, making the moratorium applicable from the date of filing, not registration. 2. Commencement of Interim Moratorium under Section 96 of the IBC: The core issue was whether the interim moratorium under Section 96 commenced from the date of e-filing or the date of registration of the application. The Appellant contended that the moratorium should start only upon the application's registration, citing the Kerala High Court's judgment in Jeny Thankachan vs. Union of India & Ors., which suggested that an application must be defect-free and registered to trigger the moratorium. However, the Tribunal relied on its previous judgment in Krishan Kumar Basia vs. State Bank of India, which held that the moratorium commences immediately upon e-filing, as per the NCLT Rules, 2016. The Tribunal concluded that the filing date of IFCI's application was 02.06.2021, making the interim moratorium effective from that date, regardless of the registration date. 3. Validity of the Filing Date of the Application under Section 95 of the IBC: The Tribunal examined whether the application filed by IFCI on 02.06.2021 was valid and complete. The Appellant argued that the application was incomplete and should not be considered filed until it was registered and numbered. The Tribunal referred to the NCLT Rules, 2016, which define "filing" as the act of presenting the application at the filing counter or electronically. The Tribunal emphasized that the statutory consequences of filing, including the interim moratorium, commence from the date of filing, not registration. The Tribunal noted that the application filed by IFCI was complete and included all relevant documents, thus validating the filing date of 02.06.2021. Conclusion: The Tribunal dismissed the appeal, affirming the jurisdiction of the Adjudicating Authority and the validity of the filing date of IFCI's application. The Tribunal held that the interim moratorium under Section 96 commenced from the date of e-filing, as per the NCLT Rules, 2016, and not from the date of registration. The Tribunal also noted that the judgment of the Kerala High Court in Jeny Thankachan's case did not consider the statutory scheme of the NCLT Rules and was not binding in light of the Tribunal's three-member bench decision in Krishan Kumar Basia's case. Consequently, the order dated 01.05.2024, appointing the RP, was upheld, and the appeal was dismissed.
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