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TMI Blog2025 (4) TMI 318X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 61 of Insolvency and Bankruptcy Code 2016 ('IBC' in short) by the Appellant arises out of the Order dated 13.01.2025 (hereinafter referred to as 'Impugned Order') passed by the Adjudicating Authority (National Company Law Tribunal, Mumbai Bench) in C.P.(IB) No. 787(MB)/C-II/2022. By the impugned order, the Adjudicating Authority has dismissed the Section 9 application filed by the Operational Creditor. Aggrieved by the impugned order, the present appeal has been preferred by the Appellant-Operational creditor. 2. Coming to the brief factual matrix, a Section 9 petition was filed by Royal Construction-Operational Creditor seeking initiation of CIRP against Gannon Dunkerley & Company Ltd.-Corporate Debtor for an alleged outstan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 9 application was filed by the Appellant which was erroneously rejected by the Adjudicating Authority. 4. It was vehemently contended that the Adjudicating Authority held the section 9 petition to be non-maintainable by misapplying Section 10A of the IBC. It was asserted that the Adjudicating Authority had failed to appreciate that the dates of default were inadvertently and erroneously shown by the Appellant in Part IV of Form 5 as 03.05.2020 for BHEL Sikka Site; as 15.08.2020 for Package-O and 25.11.2020 for Package-17 of the Section 9 application. It was contended that Adjudicating Authority should have considered their pleadings and examined the documents on record to determine the actual date of default instead of relying on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for Rangwasa- Agra- Girota for MPRDC, Package-17 which fell due on 25.11.2020 2. AMOUNT CLAIMED TO BE IN DEFAULT AND THE DATE ON WHICH THE DEFAULT OCCURRED (ATTACH THE WORKING FOR DEFAULT TABULAR FORM) 10,18,16,863/-(Rupees Ten Crores Eighteen Lakhs Sixteen Thousand Eight Hundred Sixty Three Only) Bhel Sikka Site - 03.05.2020, PKG-O Site -15.08.2020 PKG Site- 01.01.2021 Separate sheet enclosed stating Computation of Default and interest claimed thereon from the date of initial refusal to pay for the outstanding amount. (Annexed as Exhibit 'C') When we peruse Part IV of Form 5 as annexed in the Section 9 petition, we find that the dates of default have been clearly shown as 03.05.2020, 15.08.2020 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the said sections before 25th March, 2020. 10. The ambit and scope of Section 10A has been well settled in the landmark judgment of the Hon'ble Supreme Court in Ramesh Kymal Vs Siemens Gamesha Renewable Power Pvt. Ltd. (2021) 3 SCC 224 wherein it was held that no application for initiation of CIRP under Section 9 can be initiated for default which is committed during the Section 10A period. Since the Ramesh Kymal judgment supra has been relied upon by the Adjudicating Authority and paragraph 11 of the Ramesh Kymal judgment supra has been reproduced at para 20 of the impugned order, we do not feel the need of reproducing the same here. It is well settled in terms of this judgement of the Hon'ble Apex Court that if any Corporate Debtor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod covered by Section 10A of the Code. These dates have been mentioned in Part IV of Form 5 as well as in the Demand Notice dated 27.01.2022. Furthermore, the dates of default mentioned in the Demand Notice dated 27.01.2022 were also 03.05.2020, 15.08.2020 and 25.11.2020. We note that, the due date of all the invoices shall be assessed separately and the invoices which fall within the period of 10A shall be excluded. In the present case, all the 3 dates of default mentioned, fall within the period prescribed under Section 10A of the Code, therefore as per the provisions of section 10A of the Code, the present petition cannot be proceeded with on this ground also. " 13. No liability can be fastened on the Corporate Debtor for default com ..... X X X X Extracts X X X X X X X X Extracts X X X X
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