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Mts(Mahalaxmi Transport) Private ... vs Essel Lucknow Raebareli Toll Road ...

National Company Law Appellate Tribunal30 September 2022Ashok Bhushan

Ratio decidendi

The rule this decision rests on

Where a default occurs within the period from 25.03.2020 to 24.03.2021, the bar in Section 10A of the Insolvency and Bankruptcy Code, 2016 applies, so that no application for initiation of corporate insolvency resolution process under Section 9 may be filed in respect of that default. The fact that the underlying contract was entered into during the COVID period does not take the default outside the protection of Section 10A where the default itself falls within the specified window.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

NATIONAL COMPANY LAW APPELLATE TRIBUNALPRINCIPAL BENCH, NEW DELHICompany Appeal (AT) (Insolvency) No. 1140 of 2022IN THE MATTER OF:

MTS (Mahalaxmi Transport) Pvt. Ltd. ...Appellant

Versus

Essel Lucknow Raebareli Toll Roads Ltd. ...Respondent

Present: For Appellant: Ms. Jagriti Dosi and Ms. Komal Singh, Advocates. For Respondent: Ms. Ritwika Nanda, Advocate.

ORDER

30.09.2022: Heard learned counsel for the parties. This Appeal has

been filed against the order dated 04.07.2022 by which order section 9

application filed by the Appellant has been rejected. Appellant's case is that

Appellant issued contract work (LOA) dated 09.09.2020 and thereafter

Appellant completed the work and issued five invoices between October, 2020

and January, 2021 for which payments were not made, hence, Section 9

application was filed. The Adjudicating Authority in the impugned order has

noticed that the date of default of all the invoices falls between 19.11.2020 to

21.02.2021, hence, the application was held to be barred by Section 10A.

2. Learned counsel for the Appellant submits that since the LOA was

issued during the COVID period, hence the application was not barred.

3. We are not impressed by the submission of learned counsel for the

Appellant. When the default is covered by Section 10A and legislature has

clearly indicated that no application shall ever be filed for initiation of

Cont'd.../ -2-

corporate insolvency resolution process of a corporate debtor for the default

occurring during the 25.03.2020 to 24.03.2021 period, we do not find any

infirmity in the order of the Adjudicating Authority rejecting application under

Section 9. There is no merit in the Appeal. Appeal is dismissed.

4. We make it clear that it shall be open for the Appellant to take such

other remedies as available in law.

.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical) Archana/nn

Company Appeal (AT) (Insolvency) No. 1140 of 2022

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