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TMI Blog2021 (4) TMI 521X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the payment had to be made on or before 31/03/2020, on failure to do so it would then be held to be in default. The date of default thus has to be construed only as 31/03/2020 and not otherwise. The contention of the Petitioner that the default has occurred on 31/07/2019 cannot be accepted. In view of Section 10A of the Code, no Petition can be filed for the default occurring on or after 25/03/2020. The default in the instant case having occurred after 25/03/2020, this Petition presently would not be maintainable - petition dismissed. - C. P. ( IB ) No. 980/MB/2020 - - - Dated:- 6-4-2021 - Hon ble Janab Mohammed Ajmal, Member (Judicial) And Hon ble Shri V. Nallasenapathy, Member (Technical) For the Petitioner : Mr Darshit Dave with Mr Ativ Patel, Advocates i/b AVP Partners For the Respondent : Mr Karl Tamboly with Mr Areez Gazdar Ms Juhi Bahirwani, Advocates i/b Veritas Legal ORDER Per : Janab Mohammed Ajmal, Member (Judicial) This Company Petition under Section 7 of the Insolvency and Bankruptcy Code, 2016 (the Code) seeks initiation of Corporate Insolvency Resolution Process (CIRP) against the Respondent Corporate Debtor alleging default in m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the aforementioned PDCs shall be presented for payment by the Financial Creditor, only after giving 5 days advance notice in writing to the Corporate Debtor of his intention to do so. After obtaining the express written consent of the Corporate Debtor, the Financial Creditor may proceed to deposit the PDCs with the bank. The Corporate Debtor hereby agrees to provide its written consent within 3 days of receipt of such notice from the Financial Creditor. 6. The Financial Creditor shall give notice to the Corporate Debtor of depositing the PDCs, as stipulated in clause 5 herein above, by way of addressing an email to the Corporate Debtor on the following 3 (Three) email addresses - (i) [email protected]; and (ii) [email protected];and (iii) [email protected] 7. Similarly, the Corporate Debtor shall give written consent to the Financial Creditor, as stipulated in clause 5 herein above, by way of addressing an email to the Financial Creditor on the following email address - [email protected]. 8. It is hereby agreed by and between the parties that in the event the Corporate Debtor fails to make payments in the manner / ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corporate insolvency resolution process of a corporate debtor for the said default occurring during the said period. 7. Counsel for the Petitioner submits that the first instalment as per the Consent Terms, was due on 31/07/2019. The Corporate Debtor issued the cheque in terms of the Consent Terms. However, vide Email dated 26/07/2019 it requested the Petitioner (Financial Creditor) not to deposit the cheque as it had not been able to arrange funds. Thus, it has to be held that the default occurred on 31/07/2019. 8. The Petitioner on 28/08/2019, intimated to the Corporate Debtor that the second instalment was due and payable on 31/08/2019. The Corporate Debtor by E-mail dated 30/08/2019 once again requested the Petitioner not to deposit the second instalment cheque, as they were unable to arrange funds. Further the Corporate Debtor requested three months grace period as provided under Clause 8 of the Consent Terms. 9. It is accordingly submitted that the Corporate Debtor with malicious intention of not making the payments, sought excuses. The Petitioner requested the Corporate Debtor to replace the cheques for the month of July and August 2019 with fresh cheques and to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e amendment on 05/06/2020, was brought about- 1. Inserted by the Insolvency and Bankruptcy Code (Second Amendment) Act, 2020 dated 05.06.2020 w.e.f 05.06.2020. 2. Further extended for 3 months from 25.09.2020 vide Notification No. S.O. 3265(E) dated 24.09.2020 issued by MCA. Further extended for 3 months from 25.12.2020 vide Notification No. S.O. 4638(E) dated 22.12.2020 issued by MCA. 15. In view of the above amendment and the consequential notifications issued by the Ministry of Corporate Affairs, a Petition inter alia under section 7 of the Code cannot be filed for the default occurring between 25/03/2020 and 24/03/2021. The Counsel for the Corporate Debtor submits that, the Consent Terms clearly mention that the Corporate Debtor is required to make payment of the sum agreed on or before 31/03/2020. The consent terms clearly demonstrate that the amount due under the consent terms were payable by 31/03/2020 as per clause 10 thereof. Thus, the default has taken place only on 31/03/2020 and hence Petitioner could not have initiated CIRP against the Corporate Debtor. 16. The Counsel for the Corporate Debtor relied on the judgment of the Hon ble NCLAT in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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