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TMI Blog2024 (11) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... use 5.1.1 of the agreement deals with the dues to be repaid by the CD in which schedule 1 of the agreement states that due date shall be as per the repayment schedule and schedule 2 and repayment schedule in schedule 2 reproduced hereinabove, clearly shows the due date of the amount of instalment etc. There is no dispute that the amount of instalment was to be paid on monthly basis. The CD did not pay the monthly instalment from Jan, 2020 which was due to be paid on 20th Jan, 2020 rather it was paid in month of Feb, 2020 but without the penal interest, therefore, the entire amount due was not paid - The CD cannot be permitted to take advantage of the fact that the FC had issued a notice of recall dated 06.11.2020, giving 15 days time, to the CD to pay the same and to calculate the date of default as 21.11.2020 which falls within the cut off period of Section 10A because issuance of recall notice, in pursuance of the clause 10.3 of the agreement, was on the occurrence of any of the events of default, which had already occurred in the month of January or at the most February. It does not mean that the default has occurred with the issuance of recall notice as the notice was a consequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on thereon and all actual legal and other costs, increased cost as mentioned in clause 3.7, charges payments re-imbursements and expenses relating thereto and payable hereunder and incidental to the facility as on the due date (herein collectively referred to as said date ) may, if not demanded earlier by the Lender as mentioned in terms of his Term Loan Agreement, be repaid by the Borrower on such dates as more particularly described in the attached Schedule 1 (the due dates). If the due date is not a business day, the borrower shall be liable to make the payment or discharge of such other obligations on the previous business day 4. Clause 18 of schedule 1 defines the due dates i.e. as per repayment schedule with schedule 2. Schedule 2 is also relevant which is reproduced as under:- 5. According to the aforesaid repayment schedule, the due date for repayment of each monthly instalment was 20th of each month, failing which interest at the rate of 14% was applicable. 6. It is alleged by the Appellant that the amount of Rs. 3,75,954/- paid by the CD on 18.02.2020 was towards the monthly instalment for the month of January that too without additional interest which was to be paid by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the Appellant that the recall notice was issued on 06.11.2020, granting a period of 15 days, which expired on 21.11.2020 which means that the default had occurred only on 21.11.2020 when the period granted by the FC for repayment of loan amount was not adhered to. It is the case of the Appellant that the date 21.11.2020 falls within the period of 25.03.2020 to 25.03.2021, therefore, the application filed under Section 7 is hit by Section 10A of the Code. In this regard, he has relied upon a decision of this Court, rendered in the case of Plus Corporate Ventures Pvt. Ltd. Vs. Transational Growth Fund Ltd., CA (AT) (Ins) No. 1270 of 2022, in which the application under Section 9 of the Code having been filed on the basis of default committed from 16.09.2020 to 28.02.2021, falling within the period of Section 10A, which provides that no application under Section 7, 9 or 10 would be filed for initiation of CIRP of the CD for any default arising on or after 25.03.2020 for a period of six months or such further period, not exceeding one year from such date as may be notified in this behalf. 14. On the other hand, Counsel for the Financial Creditor has submitted that the application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the financial debt for which the proceeding under Section 7 was initiated, therefore, the Appellant cannot be allowed to blow hot and cold in the same breath. 16 We have heard Counsel for the parties and perused the record with their able assistance. 17. The only issue involved in this appeal is as to whether the recall notice dated 06.11.2020 by which a period of 15 days was given to the CD to pay off the defaulted amount has to be considered to be the date of default as 21.11.2020 to hold that the application filed under Section 7 is hit by Section 10A of the Code? 18. As we have already mentioned that the loan was advanced by the FC to the CD in two tranches, based on the agreement to which both the parties were bound, Clause 5.1.1 of the agreement deals with the dues to be repaid by the CD in which schedule 1 of the agreement states that due date shall be as per the repayment schedule and schedule 2 and repayment schedule in schedule 2 reproduced hereinabove, clearly shows the due date of the amount of instalment etc. There is no dispute that the amount of instalment was to be paid on monthly basis. The CD did not pay the monthly instalment from Jan, 2020 which was due to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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