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2023 (3) TMI 1333 - AT - Insolvency and BankruptcyInitiation of CIRP - Priority of consideration and admission of application - Effect of Interim Moratorium - It is the main case of the Appellant that the Section 95 Application was filed by them three days prior to the date when the State Bank of India, had filed their Application and therefore their Application, ought to have been admitted first - whether Interim Moratorium, ought to have commenced from the date of filing of the defective Application, as it would amount to violation of natural justice? HELD THAT:- It is seen from the Record that the Adjudicating Authority, has not yet admitted or rejected the Application, filed by the State Bank of India, under Section 95. It is seen from the record that the Section 95 Application has not been admitted against the said Personal Guarantor. Liberty has also been given in accordance with law to the Appellant/Union Bank of India in the Impugned Order dated 07.06.2022 in the event that the Section 95 Application filed by SBI is admitted, the Adjudicating Authority under Section 102 of the Code would issue a Public Notice within 7 days of passing of the Order inviting Claims from all the Creditors. The Appellant in the instant case namely Union Bank of India, can also file their Claim under Section 103 of the Code with the RP. Hence, no prejudice would be caused to the Appellant herein. Further, it is seen from the Impugned Order that though both the Counsels were present, it was not brought to the notice of the Bench that the Application, filed by the Appellant/Union Bank of India, was three days prior to the Application, filed by the SBI. This Tribunal, is of the considered view that indeed, the Date of Filing of the Application, under Section 95 is, what is to be taken into account and not the date when the Application is numbered. There is no appreciable evidence on record to state that the said Application was defective - in the present case, though the Section 95 Application was filed on 31.12.2021 and was assigned a Registration No. and SBI had filed an Application on 03.01.2022, the Registry, had registered the Section 95 Application of SBI, on 12.01.2022 and that of Union Bank of India on 09.02.2022. Though the Appellants’ Section 95 Application came up ‘for Hearing’ on 04.03.2022, 01.04.2022, 02.05.2022 and on 07.06.2022, a perusal of the Order copies establishes that the Appellant/Union Bank of India, had never brought to the notice of the Bench that another Application, was also filed by SBI. The case of the Appellant that they had no opportunity, to bring to the notice of the Bench that the Appellant’s Section 95 Application was filed in prior point of time i.e., three days prior to the SBI’s Application, is untenable. Section 96(1)(a) provides that an interim-moratorium, shall commence on the date of the Application, in relation to all the debts. Section 96(1)(b) of the Code, also specifies that during the Moratorium period (i) any legal action or proceeding pending in respect of any debt shall be deemed to have been stayed; and (ii) the Creditors of the Debtor, shall not initiate any legal action or proceedings in respect of any debt - when an Insolvency Resolution Process, commences against the Personal Guarantor, all Creditors of the Personal Guarantor, are taken care of in the proceedings under Chapter-III. The Code does not contemplate multiplicity of Applications, against the same Personal Guarantor. This Tribunal, is of the earnest view that when the Insolvency Resolution Process, commences against a Personal Guarantor, Claims of all Creditors, are taken care of under the scheme of the I & B Code, 2016. Keeping in view that the Order of Admission, has not yet been passed by the Adjudicating Authority, and also that no prejudice would be caused to the Appellant herein, as they can file their Claim, with the Resolution Professional, and also having regard to the fact that they were given Liberty, in accordance with Law by the Adjudicating Authority, this Tribunal, is not inclined to set the clock back on this ground. Application dismissed.
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