9911796707
TMI Blog2022 (2) TMI 1176X X X X Extracts X X X X X X X X Extracts X X X X ..... in a sum of Rs. 17,91,112/-. On and from 24.03.2020 the pecuniary jurisdiction for entertaining the Petition under the provisions of Sections 7, 9 and 10 of the IBC, 2016 stands in relation to threshold limits increased from Rs. 1,00,000/- to Rs. 1,00,00,000/-. It is evident from the seal of the Registry affixed that the Petition has been filed on 12.03.2021 before this Tribunal much after 24.03.2020 being the date of increase of the threshold limit as already stand which has been increased from Rs. 1,00,000/- to Rs. 1,00,00,000/-." and opined that in the circumstances, the 'Tribunal' has no jurisdiction to entertain the Petition and was constrained to dismiss the same for 'lack of pecuniary jurisdiction', but proceeded to observe that this will not detract the right of the Petitioner to proceed before the 'Appropriate Forum' as may be advised in relation to the claim. APPELLANT'S SUBMISSIONS 3. Challenging the dismissal of the application/petition in CP/IB/23/CHE/2021, passed by the 'Adjudicating Authority', (National Company Law Tribunal, Division Bench, Court No.1, Chennai), the Learned Counsel for the Appellant contends that the Appellant/Operational Creditor had sold and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ully and with great circumspection, ongoing through the contents of the notification dated 24.03.2020 issued by the Ministry of Corporate Affairs, Government of India, whereby and whereunder the minimum amount of default limit was specified as Rs. one crore (obviously raising the minimum amount from Rs. one lakh to one crore) unerringly comes to a definite conclusion that the said notification is only 'Prospective in nature' and not a 'retrospective' one because of the simple reason the said notification does not in express term speaks about the applicability of 'retrospective' or 'retroactive' operation. Suffice it for this Tribunal to point out that from the tenor, spirit and the plain words employed in the notification dated 24.03.2020 of the Ministry of Corporate Affairs, Government of India, one cannot infer an intention to take or make it retrospective as in this regard, the relevant words are conspicuously absent and besides there being no implicit inference to be drawn for such a construction in the context in issue. That apart, if the notification dated 24.03.2020 of the Ministry of Corporate Affairs, Government of India, is made applicable to the pending applications of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .7.2021. 11. The Learned Counsel for the Respondent contends that the issue of 'Prospective' and 'Retrospective' would not apply and that the Appellant/Applicant had mistaken the date on which the 'Debt' accrued with the date on which the Application was filed. 12. The Learned Counsel for the Respondent comes out with the plea that the date of initiation of 'CIRP proceedings' under Section 9 of the Code, shall be the date on which the application is made and that the date of 'default' does not come into question and ought not to be taken into consideration for anything but calculating the limitation period. In fact, Section 4 of the Code sets the minimum threshold, which an application can be made. 13. The Learned Counsel for the Respondent emphatically points out that the minimum threshold limit of Rs. 1,00,00,000/- shall apply and that the application fails to fulfil the requirement of the Section 4 of the I&B Code. RESPONDENT'S DECISION: 14. The Learned counsel for the Respondent refers to the judgement of this Tribunal in Jumbo Paper Products Vs. Hansraj Agro Fresh Pvt Ltd wherein it is observed that threshold limit of Rs. 1,00,00,000/- will be applicable for an applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke up the process of the resolution of insolvencies (this as we have seen was referred to in the recitals to the Ordinance), which would lead to instances of the corporate debtors going under liquidation and no longer remaining a going concern. This would go against the very object of the IBC, as has been noted by a two-Judge bench of this Court in its judgment in Swiss Ribbons (P) Ltd V. Union of India 7. 33. The date of the initiation of the CIRP is the date on which a financial creditor, operational creditor or corporate applicant makes an application to the adjudicating authority for initiating the process. On the other hand, the insolvency commencement date is the date of the admission of the application. This distinction is also evident from the provisions of sub-section (6) of Section 7, sub-section (6) of Section 9 and sub-section (5) of Section 10. Section 7 deals with the initiation of the CIRP by a financial creditor; Section 8 provides for the insolvency resolution by an operational creditor; Section 9 provides for the application for initiation of the CIRP by an operational creditor; and Section 10 provides for the initiation of the CIRP by a corporate applicant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs. 5,36,880/- being the interest at 24% per annum, as per outstanding invoice from the due date i.e. 29.12.2018 till 10.10.2020, in respect of the outstanding invoice dated 02.07.2018. 20. The Appellant/Applicant/Operational Creditor had issued a 'Demand Notice' dated 10.10.2020 as per Section 8 of the I&B Code, to the Respondent/Corporate Debtor and that no 'Dispute' was raised even after issuing of the 'Demand Notice.' In fact, the Respondent/Corporate Debtor, in its Reply dated 02.11.2020 had prayed for 5-6 months' time to pay the dues of Rs. 12,54,232/-. 21. The clear cut stand of the Appellant/Applicant is that the notification dated 24.03.2020 issued by the Central Government does not save the Respondent/Corporate Debtor and in case of 'Default' that took place on or after 24.03.2020, the threshold limit shall be Rs. 1,00,00,000/- and even if a 'Default' was committed by the Respondent/'Corporate Debtor', earlier to the notification i.e. prior to 24.03.2020 then, for initiating the 'Corporate Insolvency Resolution Process' under Section 9 of the I&B Code, the threshold limit shall be considered as Rs. 100,000/- only. 22. The plea of the Appellant/Applicant is repelled b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24% per annum) from the due date i.e. 29.12.2018 till 10.10.2020, in regard to the outstanding invoice dated 02.07.2018 (as evident from the Demand Notice dated 10.10.2020), the threshold limit under Section 10A of the Code for initiation of CIRP is Rs. 1 crore (vide Notification to Section 4 of the Code dated 24.03.2020), this 'Tribunal' taking note of the fact that the Section 4 of the Code which specifies the minimum threshold of Rs. 1 crore, the same shall apply and since the sum claimed in the 'Application' was Rs. 17,91,112/-, below the sum of Rs. 1 crore and the present 'application' having been filed on 12.03.2021, before the 'Adjudicating Authority' after the Notification dated 24.3.2020 in and by which, the threshold limit was increased from Rs. 1 lakh to Rs. 1 Crore, this 'Tribunal' comes to an inevitable, inescapable and consequent conclusion that the 'Application' filed by the 'Appellant' in CP/IB/23/CHE/2021 is not per se maintainable because of the lack of pecuniary jurisdiction to the 'Adjudicating Authority, (National Company Law Tribunal, Division Bench, Court No.1, Chennai). Looking it from that perspective, this 'Tribunal' unhesitatingly holds that the conclusio ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
