9911796707
TMI Blog2023 (3) TMI 646X X X X Extracts X X X X X X X X Extracts X X X X ..... ted - whether an application filed under Section 65 of the Code is maintainable after the filing of the application under Section 7, 9 or 10 of the Code or could be maintainable only after the admission of such an application? HELD THAT:- The application under Section 65 has been filed at the stage of initiation of the proceedings for the purpose of CIRP and is not maintainable after the admission of the application as has been held by the Learned Tribunal. The question posed herein before, is answered in favour of the Appellant and against the Respondents. It is hereby held that in case where application is filed under Section 65 of the Code, it would be maintainable after the application is filed either under Section 7, 9 or 10 of the Cod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. (Corporate Debtor) for the resolution of an amount of Rs. 5 Crore. The said application was assigned Petition No. (IB)-849 (PB)/2020. 3. During the pendency of this application, the present Appellant (Ashmeet Singh Bhatia) a Homebuyer in one of the companies of the Corporate Debtor, namely, M/s. Granite Gate Properties Pvt. Ltd. undergoing Corporate Insolvency Resolution Process (CIRP) before the Tribunal in C.P. (IB)-1248(PB) of 2018, under Section 60(1) read with Rule 11 of the NCLT Rules, 2016 sought issuance of the directions, namely, "a. Allow the impleadment of the Applicant in the present Company Petition. b. Dismiss the present Company Petition, under Section 65 of the I & B Code, 2016 as it has been filed with malicious int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich read as under :- "65. Fraudulent or malicious initiation of proceedings. - (1) If, any person initiates the insolvency resolution process or liquidation proceedings fraudulently or with malicious intent for any purpose other than for the resolution of insolvency, or liquidation, as the case may be, the Adjudicating Authority may impose upon such person a penalty which shall not be less than one lakh rupees, but may extend to one crore rupees. (2) If, any person initiates voluntary liquidation proceedings with the intent to defraud any person, the Adjudicating Authority may impose upon such person a penalty which shall not be less than one lakh rupees but may extend to one crore rupees. 1 [(3) If any person initiates the pre-pac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he has relied upon a decision of the Hon'ble Supreme Court in the case of Ramesh Kymal vs. Siemens Gamesa Renewable Power Private Limited [(2021) 3 SCC 224], in which it has been held that :- "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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... & 10 in respect of defaults arising on or after 25-3-2020 i.e. the date on which Nationwide lockdown was enforced disrupting normal business operations and impacting the economy globally. Indeed, the explanation removes the doubt by clarifying that such bar shall not operate in respect of any default committed prior to 25-3-2020. 35. We are in agreement with the view which has been taken by NCLAT for the reasons which have been set out earlier in the course of this judgment. We affirm the conclusion of NCLAT. The appeal is accordingly dismissed. There shall be no order as to costs. Pending application(s), if any, stand disposed of." 10. On the other hand, Counsel appearing on behalf of the Respondents have vehemently opposed the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licant makes an application with the Adjudicating Authority for the initiation of the process and the insolvency commencement date is the date of the admission of the application. 15. The application under Section 65 has been filed at the stage of initiation of the proceedings for the purpose of CIRP and is not maintainable after the admission of the application as has been held by the Learned Tribunal. 16. Thus, in view of the aforesaid discussion, the question posed herein before, is answered in favour of the Appellant and against the Respondents. It is hereby held that in case where application is filed under Section 65 of the Code, it would be maintainable after the application is filed either under Section 7, 9 or 10 of the Code. 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
