Vinod Kumar vs Omkara Asset Reconstruction Pvt Ltd & ...

NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH, NEW DELHI Company Appeal (AT) (Insolvency) No.2265 of 2024 (Arising out of Order dated 28.11.2024 passed by the Adjudicating Authority (National Company Law Tribunal), Chandigarh Bench (Court-I) in IA No.120 of 2022 and CP(IB) 171/CHD/HRY/2021)

IN THE MATTER OF: Vinod Kumar ...Appellant

Versus Omkara Asset Reconstruction Pvt. Ltd. & Anr. ...Respondents

Present: For Appellant : Mr. Abhijeet Sinha, Sr. Advocate with Mr. Abhishek Anand, Mrs. Priyadarshini Dewan, Ms. Shankari Mishra, Ms. Heena Kochar, Ms. Devna Soni, Mr. Ashish Garg, Mr. Shubham Aggarwal, Ms. Simran Bajaj, Ms. Niti Khanna, Ms. Devna Soni, Mr. Jatin Sehgal, Advocates. For Respondents : Mr. Arun Kathpalia Sr. Advocate with Mr. Siddhant Kant, Ms. Diksha Gupta, Mr. Aditya Dhupar, Mr. Satyajit Bose and Ms. Sanyukta Fauzdar, Advocates.

JUDGMENT

ASHOK BHUSHAN, J.

This Appeal by Suspended Director of the Corporate Debtor ("CD")

has been filed challenging order dated 28.11.2024 passed by National

Company Law Tribunal, Chandigarh Bench (Court-I), admitting Section 7

Application and direction for commencement of Corporate Insolvency

Resolution Process ("CIRP") against CD. Aggrieved by which order this

Appeal has been filed.

2. Brief facts of the case to be noticed for deciding the Appeal are:

Company Appeal (AT) (Ins.) No.2265 of 2024 1

i. Indusland Bank sanctioned a Term Loan Facility of Rs.300

crores for financing the development of an IT-SEZ Project at

Golf Course Extension Road, Gurgaon, Haryana to the CD -

G.P. Realtors Pvt. Ltd. in the year 2016. Sanction Letter was

issued on 29.06.2016. In continuance of the Sanction Letter,

an Original Fee Letter dated 29.06.2016 was issued,

capturing the interest rate. A Master General Terms

Agreement and Multi-Facility Loan Agreement, laying down

the terms and conditions were also executed on 04.08.2016.

Various ancillary documents were executed along with the

execution of the Facility Agreement and Master General

Terms Agreement on 04.08.2016. As per the Sanction Letter,

the repayment of the loan was to be made in one-shot bullet

payment of Rs.300 crores at the end of 48 months. The

interest was payable as per the negotiated rates. Default

interest rate was provided as 18.75% per annum. The

interest was payable monthly.

ii. Addendum was issued by the Financial Creditor extending

the availability period of the Credit Facility from 04.02.2019

to 31.07.2019 and subsequently shifting the Date of

Commencement of Commercial Operation from 10.08.2018 to

31.07.2019.

iii. On 25.03.2020, suspension period as per Section 10A of the

Insolvency and Bankruptcy Code, 2016 (hereinafter referred

Company Appeal (AT) (Ins.) No.2265 of 2024 2 to as the "IBC") began. The Reserve Bank of India ("RBI")

issued first Covid-19 Regulatory Package, permitting

Financial Institutions to grant moratorium of three months of

payment on installment, falling between 01.03.2020 to

31.05.2020. The CD requested for moratorium of three

months from repayment under the credit facility. Therefore,

the 48 months tenure for repayment, which was to end on

11.08.2020, stood extended by three months to 11.11.2020.

Under second Covid-19 Regulatory Package, the CD further

sought extension of moratorium by three months. Thus, the

48 months tenure, which was to end on 11.11.2020, stood

extended to 11.02.2021.

iv. On 11.02.2021, repayment schedule of 48 months as

stipulated under the Term Loan Facility for principal amount

came to an end, which date fell during the period indicated

under Section 10A of the IBC. On 01.06.2021, Demand

Notice was issued by erstwhile Financial Creditor, demanding

payment of Rs.272,66,31,168/- as principal amount and an

amount of Rs.15,40,73,336/- towards additional interest as

on 31.05.2021. On 03.09.2021, Demand Notice under

Section 13(2) of the SARFAESI Act, 2002 was issued. On

09.06.2021, Section 7 Application was filed before the NCLT

Chandigarh Bench, claiming default of Rs.282,04,75,836/- as

on 31.05.2021 towards principal amount and

Company Appeal (AT) (Ins.) No.2265 of 2024 3 Rs.9,38,44,668/- towards the interest/ default interest

accrued from 26.03.2021 till 31.05.2021.

v. The Financial Creditor - Indusland Bank Ltd. vide assignment

dated 30.09.2021, assigned the Loan Facility in the name of

Omkara Asset Reconstruction Pvt. Ltd. - Respondent No.1 in

the present Appeal. Omkara Asset Reconstruction filed an

Application for its substitution in the proceeding on the

strength of assignment, which was allowed by the

Adjudicating Authority on 24.01.2024.

vi. IA No.122 of 2020 was filed by the CD, seeking dismissal of

Section 7 Application on account of default date falling within

the excluded period under Section 10A of the IBC.

vii. Adjudicating Authority heard the parties on IA 120 of 2022

and CP(IB)171/CHD/HRY/2021 and by the impugned order

dated 20.11.2024 admitted Section 7 Application. The

Adjudicating Authority held that interest/ default interest

calculated from 26.03.2021 to 31.05.2021 is

Rs.9,38,44,668/-, which is much beyond the threshold

amount of Rs.1 crore, therefore, the petition deserve to be

admitted. Order of admission was passed on 20.11.2024,

against which this Appeal has been filed.

3. When the Appeal was heard, Learned Counsel for the Appellant

offered to deposit the defaulted amount of interest without prejudice to

any rights and contentions. This Tribunal recorded the above statement

Company Appeal (AT) (Ins.) No.2265 of 2024 4 of the Appellant and passed an interim order on 06.12.2024, directing

that no further steps shall taken in pursuance of the impugned order.

Notices were issued on 06.12.2024, on which notice, the CD has appeared

and filed the reply, to which rejoinder has also been filed.

4. We have heard Shri Abhijeet Sinha, learned Senior Counsel and

Shri Abhishek Anand, Learned Counsel for the Appellant; Shri Arun

Kathpalia, learned Senior Counsel appearing for the Financial Creditor.

5. Shri Abhijeet Sinha, learned Senior Counsel appearing for the

Appellant submits that when default of payment of entire loan of Rs.300

crores fell on 11.02.2021, i.e. during Section 10A period, the Application

filed by Financial Creditor was clearly barred by Section 10A and deserve

to be rejected. It is submitted that when default of entire loan account fell

on 11.02.2021, no default regarding interest can be considered, interest

being clearly related to principal loan amount. It is submitted that

default took place on 11.02.2021, hence the deemed date of default as

26.03.2021 treated by Financial Creditor is unacceptable. The

Adjudicating Authority has not given any finding on the debt and default

of the CD. The Adjudicating Authority having accepted that date of

default as 11.02.2021, it erred in admitting Section 7 Application, relying

on interest amount due from 26.03.2021 to 31.05.2021. The filing of

Section 7 Application falls foul on the very ethos and legislative intent of

Section 10A, where the interest component on account of non-payment

would continue to accrue. The interest component on account of non-

payment is not separately identifiable as a default of its own. The

Company Appeal (AT) (Ins.) No.2265 of 2024 5 judgment relied by Adjudicating Authority of Harish Raghavji Patel vs.

Clearwater Capital Partners Singapore Fund IV Private Ltd. - (2023)

SCC OnLine NCLAT 2367 is distinguishable and does not help the

Financial Creditor in the present case, since the term of loan/ credit

facility in the above judgment is distinctive from the term of repayment in

the Appellant's loan, which was a one-shot bullet payment, which could

only have one date of default. The Respondent cannot be allowed to setup

an alternative case in the Appeal. The Appellant is ready to deposit the

entire defaulted amount of interest as claimed in Part-IV, which has

actually been deposited. No case has been made out to permit

continuance of Section 7 proceeding. It is submitted that date of default

cannot be shifted or changed by the Financial Creditor. The statutory bar

under Section 10A cannot be avoided.

6. Shri Arun Kathpalia, learned Senior Counsel appearing for

Respondent refuting the submission of the Appellant submits that total

debt disbursed to the CD was Rs.300 crores and interest rate was fixed @

11% per annum payable monthly and interest rate upon default in

repayment was fixed at 18.75% per annum and interest was to be

capitalized upon any default in payment. The CD has not contested the

existence of default and default in relation to the credit facility. The CD's

financial statements clearly record an outstanding liability that is payable

in respect of the credit facility. There is no dispute that the threshold for

filing of Section 7 Application has been met and Section 7 Application has

rightly been admitted. The interest defaults after the expiry of the

Company Appeal (AT) (Ins.) No.2265 of 2024 6 suspension period under Section 10A are independent and can be severed

from default in principal. The interest default from 26.03.2021 to

31.05.2021 was Rs.9,38,44,668/-. It is submitted that the Appellant's

assertion that there can only be one date of default and there can be no

separate and distinct date of default for interest is contrary to the settled

law. Each default in repayment of principal or interest, constitutes a

separate event of default. The legislative intent behind Section 10A was

not to grant permanent immunity to defaulting borrowers. The

Adjudicating Authority has rightly come to the conclusion that interest

default subsequent to 10A period was more than the threshold of Rs.1

crore. It is submitted that willingness of the Appellant to make payment

of interest amount of Rs.9,38,44,668/- cannot be a reason to compel the

Financial Creditor to settle with the Appellant. Total interest default

between 01.06.2021 to 24.12.2024 is more than Rs.9.38 crores. After

admission of Section 7 Application the proceedings are now in rem.

7. We have considered the submissions of learned Counsel for the

parties and have perused the records.

8. The Sanction Letter dated 29.06.2016 has been brought on record

by the Appellant in the Appeal, which sanctioned Term Loan Facility of

not exceeding Rs.300 crores. With regard to interest rate, it is mentioned

as per negotiated rates. Repayment schedule is mentioned to the

following effect:

"Repayment Loan will be repayable in bullet installment of Schedule Rs.300 crs at the end of 48th month from date of first disbursement. Company to intimate IBL 30 days in

Company Appeal (AT) (Ins.) No.2265 of 2024 7 advance before making payment.

Bank shall have a put option at the end of 36 months and 42 months from first disbursement on the borrower. In case the borrower fails to repay the loan within 15 days from the date of invocation, the Bank shall have the right to invoke the Securities. The Bank has Right of First Offer "ROFO" for LRD facility to take out the construction loan at the time of leasing and payment of the construction loan."

9. Default interest rate is also provided in Sanction Letter to the

following effect:

"Default interest Applicable rate + 1% for non-compliance of sanction rate terms.

For irregularities in the account(s) - 18.75% p.a."

10. Vide letter dated 29.06.2016, Indusland Bank communicated

interest rate as 11% p.a. for facility of Rs.300 crores. The Master General

Terms Agreement was also executed between the parties on 04.08.2016.

Multi-Facility Loan Agreement was also executed on the same day, i.e.

04.08.2016. Annexure A-1, 'Term Loan Facility' in paragraph dealt with

'Interest'. Paragraph 2.1, 2.2, 2.3 and 2.4 are as follows:

"2. INTEREST

2.1 The Borrower shall pay to the Bank interest on the principal amount of the Term Loan Facility outstanding from time to time, and on all fees, costs, commissions, charges and other amounts due under or in respect of this Agreement/ Term Loan Facility (the "Outstanding Amounts) at the Interest rate ('Interest Rate) as mentioned in the Schedule to Annexure A-1 hereto or at such other rate as may be notified by the

Company Appeal (AT) (Ins.) No.2265 of 2024 8 Bank from time to time on the date(s) as mentioned in the Schedule 1. The Interest Rate shall be calculated with reference to the Bank's Marginal Cost of Funds based lending rate (MCLR) and shall comprise of MCLR plus margin. The MCLR shall be reviewed and reset from time to time as specified in Sanction Letter.

2.2 In default of payment of interest as stated above, the same shall be capitalised and added to the principal and shall be treated as an advance to the Borrower and the Bank shall be entitled to charge interest at the aforesaid rate/Interest Rate on the debit balance / outstanding capitalised as aforesaid

2.3 In the event of default on the part of the Borrower in making payment of the Outstanding Amounts as and when the same are due to be paid, the Borrower shall pay to the Bank additional interest at the additional interest rate (Additional Interest Rate) as mentioned in the Schedule to Annexure A-1. such additional interest to be payable on and from the date of default to and including the date on which such delay / default is rectified. The Bank's riht to claim such additional interest shall be without prejudice to the Bank's right to take any other action available to it under the terms of this Agreement or at law in respect of such event of default

2.4 All interest payable under this Term Loan Facility shall accrue in the manner set forth in the Schedule"

11. There is no dispute between the parties that period of 48 months

after extension came to an end on 11.02.2021. Thus, the date for

repayment of Rs.300 crores fell on 11.02.2021, which admittedly is a

date, which falls within 10A period. We need to notice the Part-IV of

Section 7 Application. In Column-2 of Part-IV, Financial Creditor has

pleaded following:

Company Appeal (AT) (Ins.) No.2265 of 2024 9

"2. AMOUNT CLAIMED TO BE The total amount in debt in default on part of IN DEFAULT AND THE the Corporate Debtor as on 21st May 2021, is DATE ON WHICH THE Rs.282,04,75,836/- (Rupees Two Hundred DEFAULT OCCURRED Crores Four Lakhs Seventy Five Thousand Eight (ATTACH THE WORKINGS Hundred Thirty Six Only) comprising of a FOR COMPUTATION OF default in repayment of Rs.272,66,31,168/- AMOUNT AND DAYS OF (Rupees Two Hundred Seventy-Two Crores Sixty DEFAULT IN TABULAR Six Lakhs Thirty One Thousand and One FORM) Hundred Sixty Eight Only) towards the principal amount and Rs.9,38,44,668/- (Rupees Nine Crores Thirty-Eight Lakhs Forty Four Thousand Six Hundred Sixty Eight only) towards the interest/ default amount accrued from 26 March 2021 till 31 May 2021.

It may be noted that the amount of debt under the Credit Facility was repayable by the Corporate Debtor at the end of 48 (Forty-Eight) months from the date of drawdown i.e. 12 August 2016 in the present cae. Thus, the repayment under the Credit Facility by the Corporate Debtor was due and payable on 11 August 2020. However, in light of the Covid-19 Regulatory Package introduced by RBI (whereby moratorium was permitted to be granted by the banks, financial institutions to the borrowers in respect of repayments under the credit facilities), the Corporate Debtor was also granted the benefit of moratorium for a period of six months from 1 March 2020 to 31 August 2020. As a result thereof, the repayment date under the Financing Documents was extended by six months from 11 August 2020 to 11 February 2021.

However, despite the grant of moratorium by the Financial Creditor to the Corporate Debtor, the Corporate Debtor defaulted on its obligations to repay the principal amount under the Credit Facilities amounting to Rs.272,66,31,168/- (Rupees Two Hundred Seventy-Two Crores Sixty Six Lakhs Thirty One Thousand and One Hundred Sixty Eight Only) along with the applicable interest and default interest in terms of the Financing Documents and the same continues to be in default till date.

At this juncture, it would be pertinent to highlight for the purpose of filing the present application, keeping in view the provisions of Section 10A of the Code, while the amounts under the Credit Facility became due on 11 February 2021, the present application is being filed deeming 26 March 2021 as the date of default as the amounts under the Credit Facility have continued to remain in default.

Accordingly, the default interest payable by the Corporate Debtor in terms of the Financing Documents has also been calculated deeming 26 March 2021 as the date of default and the amount of default interest due and payable by the Corporate Debtor to the Financial Creditor as on 31 May 2021 is Rs.9,38,44,668/- (Rupees Nine Crores Thirty-Eight Lakhs Forty Four

Company Appeal (AT) (Ins.) No.2265 of 2024 10 Thousand Six Hundred Sixty Eight only).

Whereas in view of Section 10A the default in interest between 11 February to 25 March 2021, has not been accounted for. It is Financial Creditor's respectful stand that the principal repayment being due as one bullet repayment in accordance with the terms or the Financial Documents, and the said default continuing beyond the period of suspension ending on 25 March 2021 under Section 10A of the Code. The Financial Creditor is entitled to treat the principal amount as due and payable as on 26 March 2021, and is entitled to prefer the present application on the basis of such default and that it is sufficient compliance of Section 10A of the Code, as long as the Financial Creditor does not claim default qua the interest default during 11 February 2021 to 25 March 2021.

Without prejudice in the aforestated in case, it is held that gien that the principal repayment amount became due prior to 25 March 2021, during the period or suspension under Section 10A of the Code, even then, the Corporate Debtor is in default of its obligation to pay the interest amount to the extent of Rs.9,38,44,668/- (Rupees Nine Crores Thirty- Eight Lakhs Forty Four Thousand Six Hundred Sixty Eight only) between 26 March 2021 to 31 May 2021 which default being in excess of the threshold of Rs.1 Crore prescribed under Section 4 of the Code, is also sufficient to file the present application and that the corporate insolvency resolution process can be initiated on this basis alone.

Accordingly, in the alternative the amount of default for the purpose of satisfaction of Section 10A read with Section 4 of the Code may be treated as Rs.9,38,44,668/- (Rupees Nine Crores Thirty-Eight Lakhs Forty Four Thousand Six Hundred Sixty Eight only) on account of interest default between 26 March 2021 and 31 May 2021.

The details regarding the date amount and the days of defaults with respect to the facilities granted by the Financial Creditor to the Corporate Debtor, in a tabular form, are annexed along with the present Application as ANNEXURE 6.

As highlighted above, the Financial Creditor is filing the present application deeming 26 March 2021 as the date of default. Accordingly, the Financial Creditor reserves its liberty to file claim to the extent of full amount of default including the principal amount along with interest from 11 February 2021 till the date of insolvency commencement date with the Interim Resolution Professional or the Resolution Professional as the case may be, at the time of filing of its claim as Section 10A applies only for

Company Appeal (AT) (Ins.) No.2265 of 2024 11 the purposes of determination of default under Section 7 of the Code and not otherwise.

This application under Section 7 of the Insolvency and Bankruptcy Code, 2016 is being filed without prejudice to the rights to the Financial Creditor as available under Sections 13 and 15 of the Insolvency and Bankruptcy Code, 2016 read with the underlying regulations."

12. From the above, it is clear that without prejudice to claim made in

Part-IV, it was pleaded that the Corporate Debtor is in default of its

obligation to the interest amount to the extent of Rs.9,38,44,668/-

between 26.03.2021 to 31.05.2021, which default in excess of threshold

amount of Rs.1 crore, which is sufficient to entitle Financial Creditor to

present Section 7 Application.

13. There can be no dispute to the proposition that no Application

under Section 7 can be entertained for any default which occurred during

10A period, which is law settled by Hon'ble Supreme Court in Ramesh

Kymal vs. Siemens Gamesa Renewable Power Pvt. Ltd. - (2021) 3

SCC 224. In the impugned order, one of the question framed by the

Adjudicating Authority for consideration was, "Whether CIRP can be

initiated for default of interest component on the loan amount after the

Section 10A period". The said issue was considered in paragraph 13 of the

judgment and after noticing the Annexure-6 of the petition, which gave

the details regarding the amount and its default, the Adjudicating

Authority held following in paragraph 13:

Company Appeal (AT) (Ins.) No.2265 of 2024 12

"In the case in hand, Financial Creditor has enclosed at Annexure-6 of the Petition the details regarding date, amount and days of default as below:

*** *** ***

It may be seen from the above that the interest/ default interest calculated from 26 March 2021 to 31May 2021 is Rs.9,38,44,668/-, which is much beyond the threshold amount of Rs.1 crore, therefore the Petition deserves to be admitted."

14. The Adjudicating Authority has relied on judgments of this Tribunal

in Harish Raghavji Patel vs. Clearwater Capital Partners Singapore

Fund IV Private Limited - (2023) SCC OnLine NCLAT 2367 and Beetel

Teletech Ltd. vs. Arcelia IT Services Pvt. Ltd. [Company Appeal (AT)

(Ins.) No.1459 of 2022]. We need to first notice the aforesaid judgments,

which have been referred to and relied by Adjudicating Authority. Harish

Raghavji was a case where Section 7 Application was admitted by the

Adjudicating Authority. In the Appeal, the submission was made that

Application was hit by Section 10A of the Code. In the said case, this

Tribunal held that after the end of 10A period, there was a clear default in

payment of interest, which was more than Rs.1 crore. Following was held

in paragraphs 28 and 29:

"28. For sake of argument if we do not take 1st June, 2021 as date of default, the default on the payment of interest after end of the 10A period i.e. after 24th March, 2021 there is clear default on the payment of interest and payment of default in the interest of both the Financial Creditors is more than Rs. 1 Crore which is threshold amount for filing of the Application under Section 7. The tabular chart given in Exhibit K contains the details of interest accrued interest paid and interest outstanding even if we take period after 10A period i.e. period from 31st March, 2021 as

Company Appeal (AT) (Ins.) No.2265 of 2024 13 mentioned in the tabular chart total overdue interest after 10A period is much more than threshold amount of Rs. 1 Crore. Details of overdue interest has been captured in the tabular form in exhibit K. For example, with regard to Respondent No. 1 overdue interest on 31st March, 2021 was Rs. 4,17,36,492/- and overdue interest on 30th June, 2021 was Rs. 5,45,41,732/- thus the defaulted amount during this quarter was itself more than Rs. 1 Crore. Similarly, with regard to Respondent No. 2 overdue interest on 31st March, 2021 was Rs. 29,47,74,305/- and overdue interest on 30th June, 2021 was Rs. 42,01,93,862/-. The date of default in payment of interest after there are several date of default in payment of interest after Section 10A period which is captured in the tabular form filed as Exhibit K in Part-IV of the Application, Financial Creditors have also filed the working for computation of the amount and days of default in tabular form thus the date of default cannot be confined only to date 1st June, 2021 as mentioned in Part-IV. The date of default which is mentioned in the tabular form cannot be ignored it is clear that there was default of more than Rs. 1 Crore i.e. threshold period in payment of default by the Corporate Debtor after Section 10A period.

29. The above default is very much there even if we ignore the default on the basis of Facility Acceleration Notice dated 30th May, 2021/31st May, 2021. We thus are of the view that even after Section 10A period there being default in payment of interest which was more than threshold amount, the Application under Section 7 deserves to be admitted."

15. Learned Counsel for the Appellant sought to distinguish the above

judgment stating that the term of loan credit facility in the present case is

distinctive from the term of repayment in the above case. It is true that in

the present case, principal amount of loan was payable in one installment

after 48 months, which default fell on 11.02.2021. What is prohibited by

Section 10A is not to initiate any Application for default committed by CD

Company Appeal (AT) (Ins.) No.2265 of 2024 14 during 10A period. In event, the CD defaults after the end of 10A period,

the said default can very well be made basis for any Application under

Section 7 and in the present case, finding of the Adjudicating Authority is

that amount of default from 26.03.2021 to 31.05.2021 was

Rs.9,38,44,668/-. The interest liability shall not come to an end merely

on the ground that default of principal amount fell during 10A period.

The interest was payable on outstanding loan as per the terms of the

Facility Agreement as noted above. Prohibition to initiate Section 7

Application for default under 10A period, cannot mean that liability is

wiped out. If the outstanding amount continues even after 10A period,

the interest liability on outstanding amount on the CD shall not come to

an end.

16. Another judgment relied by Adjudicating Authority was Beetel

Teletech Ltd. (supra), where this Tribunal in the above case held that

object of Section 10A was never to cover any default, which occurred

before Section 10A period and continued thereafter. In paragraph 14,

following was held by this Tribunal:

"14. The present is a case where default has been committed by the Corporate Debtor since 29.02.2020 which is prior to commencement of Section 10A period. Hence, this is a case where the default was undisputedly committed before the bar of Section 10A came into play. There being categorical default by the Corporate Debtor prior to Section 10A period, the Corporate Debtor was clearly not entitled to claim the benefit of Section 10A period."

17. Learned Counsel for the Appellant has also relied on judgment of

this Tribunal in Company Appeal (AT) (Ins.) No.1725 of 2025 - Office

Company Appeal (AT) (Ins.) No.2265 of 2024 15 Beanz Pvt. Ltd. In the said case, Section 7 Application was rejected on

the ground of bar of 10A, which order was challenged in the Appeal.

Dealing with the purpose and object of 10A, this Tribunal made following

observation:

"The mere fact that the observation of the Hon'ble Supreme Court that debt owed by the Corporate Debtor is not extinguished is the law declared by the Hon'ble Supreme Court, but their being clear prohibition for filing an application under Section 7, 9 and 10, for default occurring in 10A period there is apparent case. The language of the statute provides that no application for initiation of Corporate Insolvency Resolution Process of a Corporate Debtor shall be filed for any default arising on or after 25.03.2020. The provision cannot be read to mean that after the period is over the application can be filed. If such interpretation is accepted, the whole purpose and object shall be defeated. The purpose and object of introduction of Section 10A was to give relief to the Corporate Debtor who committed default during the period which is covered by Section 10A. The debt is not wiped out is only for the purpose that other proceedings are not prohibited, but Sections 7, 8 and 10 applications are clearly barred. No application can be filed, even after expiry of the period under Section 10A for the default which occurred during the 10A period."

18. There can be no dispute to the proposition of law as noticed by this

Tribunal in the above case. The present case, however, is founded on the

basis that even after end of 10A period, the CD defaulted in its obligation

to pay monthly interest and liability of interest from 26.03.2021 to

31.05.2021 was more than Rs.9.38 crores.

19. Another judgment relied by the Appellant is judgment of this

Tribunal in Mr. Bhavit Sheth (Through Authorised Representative Ms.

Company Appeal (AT) (Ins.) No.2265 of 2024 16 Nikita Mehta_ vs. Mr. Madan Bajrang Lal Vaishnawa and Anr. -

Company Appeal (AT) (Ins.) No.328 of 2024 decided on 18.04.2024,

which was a case where Adjudicating Authority has admitted Section 9

Application, following was observed by this Tribunal in paragraph 11:

"11. Section 10A of the Code prohibited filing an application under Sections 7, 9 & 10 for any default arising on or after 25.03.2020. The prohibition continues for one year from 25.03.2020 i.e., upto 24.03.2021. When we look into the Part IV of the application as well as the statement showing particulars of claim it is clear that apart from lease rental from April 2021, all claim was within the 10A period. For lease rental of April 2021, no CIRP can be commenced since it did not fulfil the threshold."

20. In the above case, the Application for amendment filed by the CD

was also rejected. In the facts of the said case, this Tribunal held that no

Application could have been filed due to bar of Section 10A. In the above

circumstances, this Tribunal held that Application was clearly barred

under Section 10A and except the lease rent of April 2021, all operational

debt was barred by Section 10A. The above observations were made in

paragraphs 18, 19, and 20. Lease rent for April 2021 as has been noted

in paragraph 8 was only Rs.49,83,636/- and the Application under

Section 9 filed subsequent to 24.02.2020, which required threshold of

Rs.1 crore. In the above background, this Tribunal held that Application

was barred by 10A. The above judgment was in its own facts and does

not render any help to the Appellant in the present case.

21. The Adjudicating Authority having returned a finding that Section

7 Application was entertainable on the basis of default of interest, which

Company Appeal (AT) (Ins.) No.2265 of 2024 17 is subsequent to the end of 10A period, i.e. with effect from 26.03.2021 to

31.05.2021, we do not find any error in the order admitting Section 7

Application. The question as to what should be the amount of claim of

the Financial Creditor is not to be determined at the time of admission of

Section 7 Application and that is the subject matter of collation and

verification by the RP in the CIRP. We make it clear that while upholding

the decision of the Adjudicating Authority admitting Section 7

Application, we are not expressing any opinion on the amount of claim of

the Financial Creditor, which need to be determined in the CIRP in

accordance with relevant statutory provisions. Subject to observations as

made above, we dismiss the Appeal. There shall be no order as to cost.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical)

NEW DELHI

4th April, 2025

Ashwani

Company Appeal (AT) (Ins.) No.2265 of 2024 18