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TMI Blog2024 (7) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... lication 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aurav Mitra, learned Counsel appearing for the Appellant submits that an Application was filed by PNBHFL against the Personal Guarantor, which was registered on 02.08.2021 and when the Application of the PNBHFL was registered on 02.08.2021, the Application was complete and interim moratorium was enforced on the Application filed by PNBHFL, hence, no order could have been passed by the Adjudicating Authority in the Application filed by IFCI (Respondent No.1 herein). It is submitted that after interim moratorium is triggered, there is prohibition from initiating any proceedings against the Personal Guarantor by any of its creditors. It is submitted that the order passed by Adjudicating Authority, impugned in the Appeal is without jurisdiction. It is submitted that mere filing of the Application does not make the Application complete, unless it is defect free and registered by the Adjudicating Authority. It is submitted that Application filed by Respondent No.1, came to be registered only on 09.08.2021, i.e., subsequent to the registration of Application filed by PNBHFL, hence, no order could have been passed. The learned Counsel for the Appellant has put heavy reliance on the judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation shall be treated from the date of e-filing, or from the date, on which the Application is registered and numbered by the Registry. There is no dispute between the parties regarding the date, on which the Application filed by the PNBHFL, which was subsequent to the Application filed by the IFCI, i.e., on 24.07.2021, but it was registered on 02.08.2021, earlier to 09.08.2021, when the Application of Respondent No.1 registered. The three Members Bench of this Tribunal in Krishan Kumar Basia has considered the same very issue and noted the relevant rules and procedure. In Krishan Kumar Basia s case, the relevant rules, which were considered and applicable for filing the Application were the NCLT Rules, 2016 and the procedure as provided in Rules 20 to 24. In paragraph 12 of the judgment, relevant rules have been noticed. Paragraph 12 is as follows: 12. Now we revert to Rule 20 to 24. Rule 20 deals with the procedure , which is to the following effect: 20. Procedure.-(1) Every appeal or petition or application or caveat petition or objection or counter presented to the Tribunal shall be in English and in case it is in some other Indian language, it shall be accompanied by a copy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bed form with stipulated fee at the filing counter and non-compliance of this may constitute a valid ground to refuse to entertain the same. (2) Every petition or application or appeal may be accompanied by documents duly certified by the authorised representative or advocate filing the petition or application or appeal duly verified from the originals. (3) All the documents filed in the Tribunal shall be accompanied by an index in triplicate containing their details and the amount of fee paid thereon. (4) Sufficient number of copies of the appeal or petition or application shall also be filed for service on the opposite party as prescribed under these rules. (5) In the pending matters, all applications shall be presented after serving copies thereof in advance on the opposite side or his authorised representative. (6) The processing fee prescribed by these rules, with required number of envelopes of sufficient size and notice forms shall be filled alongwith memorandum of appeal. Rule 23, sub-rule (1) provides that every application etc. be presented in triplicate by the appellant in the prescribed form with stipulated fee at the filing counter. 8. Section 96 of the Code uses the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 94 was numbered earlier in point of time, the State Bank of India s petition, which was numbered subsequently is to be treated as non-est and could not have been considered by the Adjudicating Authority. The learned Counsel for the Appellant in support of his submission has relied on judgment of this Tribunal in Ravi Ajit Kulkarni v. State Bank of India in Company Appeal (AT) (Ins.) No.316 of 2021 decided on 12th August, 2021. 16. The expression filing is defined in several statutes. We may first notice the dictionary meaning of filing. In P Ramanatha Aiyar Advanced Law lexicon (6th Edition Vol. 2, D-1) defines the filing as follows: Filing. Delivery of a paper to the proper officer to be kept on file; placing and leaving a paper among the files; placing a paper in the proper official custody; presenting a paper at the proper office and leaving it there, deposited with the papers in such office; placing a paper in the proper official s custody by the party charged with this duty, and the making of the proper indorsement by the officer. 17. The expression filing has been used in NCLT Rules; IBC, as well as 2019 Rules as noted above. Rule 10 deals with filing of application and doc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ences flow immediately after filing of the Application. If we accept the submission of the Appellant that filing is postponed till it is numbered, it will lead to uncertainty and allow the Guarantors and other Respondents to delay the moratorium by pleading that filing is not complete, since the Application has not yet numbered. The statutory scheme, thus, does not in any manner support the submission of learned Counsel for the Appellant. Numbering of Application is essential for different purpose and cannot be equated with the filing as contemplated by the Rules. 10. In Krishan Kumar Basia judgment, the judgment of Hon ble Supreme Court in Vidyawati Gupta and Ors. vs. Bhakti Hari Nayak and Ors. was also noticed in paragraph 23 and 24. Paragraph 23 and 24 of the Krishan Kumar Basia s are as follows: 23. In this reference, we may notice one judgment of the Hon ble Supreme Court in (2006) 2 SCC 777 Vidyawati Gupta and Ors. vs. Bhakti Hari Nayak and Ors. The Hon ble Supreme Court in the above case had occasion to consider the question as to when a plaint is treated to be filed. The High Court had occasion to consider the rules, provisions of CPC as well as Calcutta High Court (Origina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further case of the appellants that having regard to the provisions of Chapter 7 Rule 1 of the Original Side Rules, the reference made in sub-rule (3) of Rule 1 Order 4 of the Code would also include the amendments brought about in the said orders with effect from 1- 7-2002. Consequently, it was urged that since the amended requirements of sub-rule (4) of Rule 15 Order 6 had come into operation with effect from 1-7-2002 and since the suit had been instituted thereafter on 26-7-2002, the same could not be said to have been duly instituted within the meaning of sub-rule (3) of Rule 1 Order 4 of the Code. It was urged that the entire proceedings from the filing of the plaint and the entertaining of the interlocutory applications by the learned Single Judge was without jurisdiction and was liable to be declared as such The findings of the Division Bench of the Calcutta High Court has been noted in paragraph 26: 26. After considering the various provisions of the Code along with the relevant amendments introduced in the Code with effect from 1-7-2002 and the relevant provisions of the letters patent and after considering various decisions cited at the Bar, in particular the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esented. It was submitted that Division Bench of the Calcutta High Court erred in holding that having regard to the provisions of sub-rule (3) of Rule 1 Order 4 of the Code, the suit will be deemed to have been instituted on the date on which the defects stood cured and not from the date of initial presentation of the plaint. The Hon ble Supreme Court allowed the Appeal and set-aside the Division Bench judgment of the High Court holding that any omission in respect of the plaint shall not render the plaint invalid and that such defect or omission was curable and plaint shall also date back to the presentation of the plaint. In paragraph 50, the Hon ble Supreme Court also held that amendments were procedural in nature and noncompliance therewith would not automatically render the plaint as nonest. In paragraph 50 and 55 following has been laid down: 50. The intention of the legislature in bringing about the various amendments in the Code with effect from 1-7- 2002 were aimed at eliminating the procedural delays in the disposal of civil matters. The amendments effected to Section 26, Order 4 and Order 6 Rule 15, are also geared to achieve such object, but being procedural in nature, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Deed of Personal Guarantee; Recall Notice as well as Notice for invocation of Personal Guarantee were also brought on record. Thus, in the present case, there was no such defect in the Application, where it can be termed as a skelton Application. 13. Now, we come to the judgment of the Kerala High Court Jeny Thankachan vs. Union of India Ors. (supra), which has been relied by the learned Counsel for the Appellant. The 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 arguments of Petitioner was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e IBC 2016 cannot oust the operation of the Act, 2002 for the reason that the IBC 2016 and the Act, 2002 operate in different fields. Therefore, unless there is any repugnancy between the provisions of the IBC 2016 and the provisions of the Act, 2002, there is no question of IBC 2016 overriding the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 in totality. 14. We may notice that observations made by Kerala High Court that interim moratorium shall commence only when Application is defect free and has been registered, has been made without noticing the statutory scheme as delineated in NCLT Rules, 2016. The date of filing the Application has to be determined as per statutory Rules governing for filing of Application under Section 95. We have already noticed the judgment of three Member Bench of this Tribunal in Krishan Kumar Basia decided on 14.07.2022, i.e. much before the judgment delivered by the Kerala High Court on 16.11.2023. There being three Members Bench judgment of this Tribunal covering the issue, we see ourselves bound by the said judgment and we are not persuaded to accept the view of the Kerala Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X
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