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TMI Blog2023 (11) TMI 313X X X X Extracts X X X X X X X X Extracts X X X X ..... fault, and which lies beyond the period prohibited under Section 10A of the IBC, 2016. In the light of the detailed discussion, it is concluded that the date of default lies beyond the prohibited period prescribed under Section 10A of the IBC, 2016. The Adjudicating Authority is directed to hear and decide the Application of the Financial Creditor under Section 7 by treating it as a case not covered by the provisions of Section 10A of the IBC, 2016. Considering the loss of time, it is expected that the said Application will be decided by the Adjudicating Authority expeditiously - appeal allowed. - [ Justice Anant Bijay Singh ] Member ( Judicial ) And [ Ajai Das Mehrotra ] Member ( Technical ) For the Appellant : Mr. Prasannan S. Namboodiri , Advocate For the Respondent : Mr. Ravi Raghunath , Advocate JUDGMENT [ Per : Ajai Das Mehrotra , Member ( T ) ] 1. The present Appeal has been filed under Section 61 of the Insolvency and Bankruptcy Code, 2016, (hereinafter called `IBC, 2016 ) on 12.05.2023, by `Mr. Ashok Tiwari (hereinafter called the `Appellant ) against the Impugned Order dated 21.03.2023 read with Order dated 17.01.2023 passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should have been pursued before filing of the Appeal before the Tribunal. The copy of the Order is reproduced below for ready reference: An error appears to have crept in the minutes of proceedings recorded on 23rd January, 2020 by inadvertently observing that the Liquidator will proceed in accordance with the decision of this Appellate Tribunal rendered in Y. Shivram Prasad v. S. Dhanapal - Company Appeal (AT) (Insolvency) No. 224 of 2018 disposed of on 27th February, 2019 . This is actually and factually, incorrect as no order of liquidation has been passed in the application filed under Section 10 of the Insolvency and Bankruptcy Code, 2016 by the Corporate Applicant. The error is rectified by recalling such observation. After hearing learned counsel for the parties for a while, we find that the Appellant has filed an application for rectification of some errors stated to have crept in the Impugned Order passed by the learned Adjudicating Authority, National Company Law Tribunal, New Delhi, Court - III. But at the same time the instant appeal has been preferred against the Impugned Order. This is not a happy situation. The Appellant may either pursue the application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed due diligence and applied for a certified copy upon pronouncement of the order in terms of Rule 22(2) of the NLCAT Rules 2016. The certified copy was provided to the appellant on 15 September 2022. Hence, the period of 10 days between 5 September 2022 and 15 September 2022 taken by the court to provide a certified copy of the order ought to be excluded when determining the period of limitation under Section 61(2) of the IBC. (Emphasis Supplied) 6. Thus, considering the Order of the Hon ble Supreme Court cited supra and provisions of sub-Rule (2) of Rule 22 of NCLAT Rules, 2016 and Section 12 of the Limitation Act, 1963, the period spent in obtaining certified copy of the Impugned Order is to be excluded while calculating the period of 30 days prescribed for filing Appeal under Section 61 of the IBC, 2016. Further, following the Order of this Tribunal cited supra, the Appellant cannot be faulted with for seeking rectification of the Order dated 17.01.2023 before filing the Appeal before this Tribunal. Considering the above facts, we hold that Appeal under Section 61 of the IBC, 2016, filed before this Tribunal is within time and the rectification Order dated 21.03.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s is beyond the period covered by provisions of Section 10A of the IBC, 2016. 9. Learned Counsel for the Respondent submitted that there is no error in the Order of the Adjudicating Authority and the loan was to be originally repaid during the period 15.02.2021 to 15.03.2021 which is the period excluded by Section 10A of the IBC, 2016, for which Corporate Insolvency Resolution Process (`CIRP ) cannot be initiated. The Respondent also submitted that the name of the Corporate Guarantor does not figure as a party in the personal Loan Agreement dated 10.12.2020, that the Corporate Guarantor is not a surety in the Contract of Guarantee to the Corporate Debtor as the personal Loan Agreement dated 12.10.2020 in Clause VI states that the Respondent is a Guarantor towards (loan taken by the Directors). It is submitted that Respondent is not a Guarantor to any loan taken by the Corporate Debtor/Tattva Properties LLP and therefore Insolvency Petition is not maintainable against the Respondent. The Respondent also submitted that the alleged Guarantee was never invoked by the Appellant. Respondent relied upon the Judgements in the case of `Ramesh Kymal Vs. `Siemens Gamesa Renewable Power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Order dated 28.04.2023 in the case of `Pooja Ramesh Singh Vs. `State Bank of India Anr. in Comp. App. (AT) (Ins.) No. 329/2023, this Tribunal has held that date of default in the case of Corporate Guarantor shall be the date on which the Corporate Guarantee was invoked. In this case the Principal Borrower s account was declared as NPA on 05.12.2019 and the Guarantee was invoked by Notice dated 01.10.2020. It was held that the date of default is 01.10.2020 in the case of Corporate Guarantor, which is within the period declared as prohibited period under Section 10A of the IBC, 2016. This Judgement was followed in Judgement dated 03.05.2023 in Comp. App. (AT) (Ins.) No. 486/2023 in the case of `JC Flowers Asset Reconstruction Private Limited Vs. `Deserve Exim Private Limited . Para 8 of the said Judgement states as under: The question as to when the default on part of the Guarantor is to considered has been decided by this Tribunal in a recent judgment pronounced on 28.04.2023 in Company Appeal (AT) (Ins.) No.329 of 2023, Pooja Ramesh Singh vs. State Bank of India , where it has been held that default on the part of the Corporate Guarantor shall be held to have been c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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