TMI Blog2020 (9) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... , even though, pegging the disability to file an application for initiation of CIRP to the defaults arising on or after 25th March 2020. At this juncture, it will be essential to understand as to why the relevant date has been fixed as 25th March 2020 and not some other date in between 25th March 2020 and the date of notification or for that matter the date of notification itself, namely 05.06.2020. This can be best explained again by looking into the objects and reasons for promulgation of the Ordinance (No. 9 of 2020) wherein it seen that the relevant date, namely 25.03.2020 happens to be the date when the nation-wide lockdown came into force to combat the spread of COVID-19. Thus, while the prevalence of the global pandemic caused uncertainty and stress for business for reasons beyond their control, the lockdown which came into force additionally caused a disruption to the normal business operations. Retrospective application of the statute - HELD THAT:- The main provision of Section 10A taken together with objects reasons resulting in the promulgation of Ordinance (No. 9 of 2020) demonstrates that it is to be made applicable retrospectively to the defaults arising on or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e retrospectivity of the applicability of Section 10A by relating it back to 25.03.2020 being the relevant date to be reckoned in relation to suspension of filing of application seeking for initiation of CIRP in the affirmative, it is only required of this Tribunal to ascertain as to whether the date of default falls within or outside the 'Lakshman Rekha', namely 25.03.2020 drawn by the legislation by way of the Ordinance (No. 9 of 2020) promulgated on 05.06.2020 in the present case. Whether the date of default falls prior to or on or after 25.03.2020 to determine whether the application is to be proceeded any further or alternatively this Tribunal is to restrain itself from the exercise of its Jurisdiction available to it under section 9 due to the applicability of Section 10A? - HELD THAT:- Though rejection of the plaint under Order VII Rule 11 does not preclude the plaintiffs from presenting a fresh plaint in terms of Rule 13 thereof, in the case of I B Code, 2016 in view of the express terms of proviso to Section 10A of the Code the same may not be possible. Be that as it may, what is material to be noted is that in relation to the rejection of a plaint the focus o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.03.2020 is to be made applicable retrospectively from the said date. The Explanation given under Section 10A only reinforces the retrospectivity in the applicability of Section 10A in as much as providing that the defaults which had occurred prior to the date of 25.03.2020, Section 10A will not apply thereby clearly demarcating defaults arising on or after 25.03.2020 and till such period as may be extended as given in the main provision of Section 10A not exceeding a year, as a class in itself due to the prevalence of the extraordinary situation as stated in the objects and reasons leading to the promulgation of the Ordinance. Thus, as a consequence of the applicability of the newly inserted Section 10A of the I B Code to the instant case, in view of the alleged default if any, had occurred even according to the own admission of the respondent/operational creditor as to be that of 30.04.2020, both in the petition/main application filed in Form 5 in IBA/215/2020 as well as the demand notice issued prior to it in Form 3, both forms statutorily prescribed under the AAA Rules and as required to be completed and filed by an Operational Creditor while approaching this Tribunal, this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section shall not apply to any default committed under the said sections before 25th March, 2020 (emphasis supplied) 2. In the light of the insertion of Section 10A to I B Code, 2016 as extracted above, it is averred in the Application to the effect that prima facie from the Application (i.e. IBA/215/20) it is evident even as per the statement made by the Operational Creditor in Form 5 filed on 11.05.2020 before this Tribunal making a claim of INR 104.11 Crore against the Applicant/Corporate Debtor, the date of alleged default of the claim amount is stated to be 30th April 2020 and since the stated case of the Respondent/Operational Creditor itself being a date subsequent to that dealt with by Section 10A of the I B Code, 2016 wherein the suspension of proceedings are made applicable for any default arising on or after 25th March 2020 and in the circumstances given the Promulgation of the Ordinance and taking into consideration the intent as can be gathered from the objects and reasons behind the Ordinance whereby Section 10A of the I B Code, 2016 has been newly inserted, the Corporate Insolvency Resolution Process (CIRP) cannot be initiated against the Applicant in fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties as can be gathered from the records of the Tribunal. 5. Upon a combined consideration of the respective oral as well as written submissions of the parties and from the averments made by the Applicant in the application under consideration as well as for the limited purpose of dealing with the application on hand of the petition filed by the respondent, it is evident that while the applicant canvasses for the suspension of the proceedings in the main petition in IBA No. 215 Of 2020 on the ground that the default even as per the admission of the Respondent/Petitioner is stated to be of the date 30.04.2020 as can be gathered from the following records pointed out in paragraph 8 of the application under consideration, namely:- 8. The Applicant has made numerous statements in relation to the date of alleged default being 30 April, 2020. An overview of the same is set out hereinbelow: a. Insolvency Application @, Pages 18 and 19 of the Insolvency Application): Under the headings and the date from which such debt fell due and the date on which the default occurred , the Applicant has stated 30 April 2020 to be the said date. b. Demand Notice dated 30 April 2020 @ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the provisions of Section 10A minutely to demonstrate the situations under which the suspension of the proceedings under Sections 7, 9 and 10 of I B Code for triggering an insolvency process on the part of a creditor to a default occurring on the part of the Corporate Debtor can be invoked or otherwise taking into consideration, so to say the relevant date i.e. 25.03.2020. To better appreciate the submissions made on the part of the Applicant, it will be first necessary to consider the arguments in opposition made by Learned Senior Counsel appearing for the respondent. 8. Interpreting the newly inserted Section 10A of I B Code, Learned Senior Counsel for the respondent endeavours to draw a distinction in relation to already filed applications/petitions under either of the provisions falling under Section 7, 9 and 10 of I B Code, 2016 on or before the date when the amendment ordinance was promulgated, namely 05.06.2020, in relation to the defaults arising prior to it on the one hand, and in relation to yet to be filed or ever to be filed applications/petitions in relation to defaults arising during the period of default falling on or after 25.03.2020 and within the releva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 27.03.2020 filed in page No. 142 of the typed set filed along with the petition and has also admitted vide communication dated 02.04.2020 filed in page No. 144 of the typed set to the petition that COVID situation is not having any impact in relation to the arrangement with the respondent/Operational Creditor. 10. To draw support to the submissions made by Learned Senior Counsel for the Respondent, the following case laws as listed in the written submissions and of which full extracts have also been provided as are sought to be relied on, namely:- i) Gokuldas Pagaria vs. Parmanand Chaurasia MANU/MP/0081/1967: Right to continue a proceeding already instituted is in the nature of a vested or substantive right and cannot be taken away except by clear indication of intention to that effect by an express provision or clear indication in the Statute. ii) Chandrasingh Manibhai vs. Surjit Lal Ladhamal Chhabda, AIR 1951 SC 199 For the proposition that the term 'shall be filed' is to be construed as construed by the Hon'ble SC in the above decision in relation to suits which may be instituted after the Act comes into force. It cannot apply to suits wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance (a) shall be laid before both House of Parliament and shall cease to operate at the expiration of six weeks from the reassemble of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions; and (b) may be withdrawn at any time by the President Explanation Where the Houses of Parliament are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause (3) If and so far as an Ordinance under this article makes any provision which Parliament would not under this Constitution be competent to enact, it shall be void. 13. A similar power to legislate in relation to the States of the Union has been vested with the Executive of the State under Article 213 of our Constitution, however subject to certain restrictions as contained in the proviso to the said Article 213(1). Both the Articles, namely Article 123 as well Article 213 of our Constitution lay down that the Ordinances promulgated under these Articles shall have the same force and effect as an Act of the Legislature, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on hand for interpreting the provisions of the Ordinance in relation to its applicability of the newly inserted Section 10A to I B Code is the compelling circumstance necessitating the Executive to take such immediate action to subserve the interest of the public arising out of the inability of the Legislature (i.e. the Parliament) to make the law since its not being in session; however in order to meet an emergent situation. 14. This is best explained by the introductory portion of the Ordinance itself promulgated on 05.06.2020 giving out the Objects and reasons for the promulgation of the said Ordinance which is extracted as below: An Ordinance further to amend the Insolvency and Bankruptcy Code, 2016. WHEREAS the entire ecosystem for implementation of the Insolvency and Bankruptcy Code, 2016 is in place; AND WHEREAS the provisions relating to corporate insolvency resolution process and liquidation process for corporate persons under the Code are in operation; AND WHEREAS COVID-19 pandemic has impacted business, financial markets and economy all over the world, including India, and created uncertainty and stress for business for reasons beyond their control ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessity for immediate action, in exercise of the powers conferred by 'clause (1) of Article 123, the promulgation of the Ordinance with a view to amend the Principal Act, namely I B Code by insertion of Section 10A in order to achieve the above objects. 16. Thus the intendment of the Executive in the promulgation of the Ordinance has been explicitly spelt out in clear terms arising out of the prevalent pandemic and the extra ordinary situation it has created in not only seriously affecting the businesses as a whole by creating a stress and also additionally causing disruption due to nationwide lock down to the businesses all of which leading to likely defaults on the part of the corporate persons thereby enabling it to be taken under the relevant provisions of Section 7, 9 and 10 of I B Code as the case may be and with a view to prevent such a situation from happening and thereby pushing the businesses to the insolvency proceedings, having the said sections suspended for a period of six months in relation to defaults arising on or after 25th March 2020. 17. The Executive, as manifest from the Objects and reasons, seems to have also been concerned about proper suitors b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bar which had been put up for the defaults committed on or after the relevant date of 25.03.2020. 21. While the main provision of Section 10A taken together with the Explanation makes it clear that a 'Lakshman Rekha', so to say, has been demarcated by providing the relevant date of 25.03.2020 in relation to a default' and for filing an application for the initiation of CIRP against the corporate persons for the defaults occurring on or thereafter, however it must be noted that the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2020 (No. 9 of 2020) inserting Section 10A was in itself notified only on 05.06.2020 in the Gazette of India, even though, pegging the disability to file an application for initiation of CIRP to the defaults arising on or after 25th March 2020. 22. At this juncture, it will be essential to understand as to why the relevant date has been fixed as 25th March 2020 and not some other date in between 25th March 2020 and the date of notification or for that matter the date of notification itself, namely 05.06.2020. This can be best explained again by looking into the objects and reasons for promulgation of the Ordinance (No. 9 of 2020) wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereafter, namely, 15.06.2020 the Executive of the Union of India chose to promulgate the Ordinance (No. 9 of 2020) inserting inter alia Section 10A to I B Code published on 05.06.2020 which already seen in the opening paragraph of the instant order has provoked the Applicant/Corporate Debtor to file this Application seeking for the main petition in IBA/215/2020 to be dealt with accordingly in terms of the newly inserted provision. 24. Thus, the question effectively posed before this Tribunal is as to whether the Ordinance (No. 9 of 2020) will have applicability to the main petition in IBA/215/2020 or otherwise, taking into consideration the fact: and circumstances more fully delineated in the preceding paragraphs. 25. In relation to contention' of its non-applicability, already this Tribunal has dealt with the same in paragraphs supra as raised by the Respondent. Now turning to the submissions of the Applicant in more detail as projected by Learned Senior Counsel Mr. Gopal Jain, Advocate followed up with the written submissions, all of which were only touched upon briefly in the earlier paragraphs in relation to the applicability of Section 10A of I B Code to the instan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rue the provisions of Section 10A taken as a whole, in particular the proviso as construed on the part of Applicant, will lead to absurdity and irrationality by subjecting similarly placed corporate debtors and creditors to different treatment without any cogent basis for the same and in the circumstances the date of filing cannot determine the rights of the parties in view of the prevalent extraordinary situation which will wholly defeat the object of the promulgation of the Ordinance in protecting the interest of the corporate persons. 27. Further on facts, in relation to date of default to be anterior to the relevant date of 25.03.2020, as contended belatedly by the respondent for which certain correspondences have been pointed out, it is submitted on the part of the applicant that the said position is a paradigm shift on the part of the respondent/operational creditor made in the rejoinder only as compared to the stated position at the time of filing the application, namely IBA/215/2020 and the documents annexed therewith, all made with a view to give self-serving interpretation as sought to be given presently clutching on to a straw with a view in effect to wriggle out of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne Organic Products Pvt. Ltd. vs. Rockwell Industries Ltd., IA/341/2020 in IBA 1031/2019, wherein one of us sitting singly (R. Varadharajan) had delivered the judgment to the effect that the Central Government Notification dated 24.03.2020 enhancing the minimum pecuniary limits from ₹ 1 Lakh to ₹ 1 crore in order to maintain a petition before this Tribunal by virtue of the power delegated by the Legislature while enacting I B Code, 2016 under Section 4 of the Code can be only prospective and not retrospective after citing several authorities in relation to the same and at paragraph 30 of the said order it has been observed essentially drawing a distinction between the exercise of the power of the Central Government as delegate under a Statute to that of the power of the Parliament granted to it under the Constitution and within the constitutional limits provided therein in enacting a legislation as follows: 30. However, from the catena of decisions cited across the bar in relation to the applicability of a law retrospectively, it is discernable there from that Courts in India including the Apex Court, have sought to draw a distinction in relation to the legislative c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raph supra for ready reference taken together with the observations relating to Ordinances as made by the Hon'ble SC in D.P. Wadhwa's case also extracted in paragraph supra clearly establishes that, save the time limit of its validity, for all other intents and purposes it is required to be treated at par with a piece of legislation as may be enacted by the Legislature, namely the Parliament. Thus, this essential distinction is required to be kept in mind and in the circumstances, the respondent cannot seek to rely on the decision as passed by this Tribunal in Arrowline's case rendered in an altogether different context. 28.3. Proceeding further to the other two cases cited by the respondent, namely Chandrasingh Manibhai vs. Surjit Lal Ladhamal Chhabda, AIR 1951 SC 199 and Gokuldas Pagaria vs. Parmanand Chaurasia MANU/MP/0081/1967: following the ratio of Chandrasingh' case cannot also be relied on by the respondent, as it is seen that the propositions laid down in the said decisions and in those cases, the learned Judges therein were concerned with the interpretation of sub-sections (2) and (3) of Section 12 of the respective concerned Act only, which, as the wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e it is clear that in relation to defaults arising on or after 25th March 2020, no application for initiation of CIRP shall be filed for a period of six months or such further period not exceeding one year as may be notified in this behalf. The duration of suspension in relation to filing of application initially is pegged at six months extendable to a further period not exceeding one year. It is to be noted that in relation to Sections 7, 9 and 10 it is the 'default' on the part of the Corporate Debtor to pay the debt due which can trigger the filing of a petition and not otherwise. Where there is no debt as defined in Section 3(11) of the Code which is due and payable and no default as defined under Section 3(12) of the Code which had occasioned in it is payment, there is no question of any cause for a creditor to invoke the provisions of I B Code seeking for the initiation of CIRP. Thus, in the normal run of Section 7, 9 and 10 it is a sine qua non for the existence of a debt and its default and if both stand established this Tribunal is required to initiate the CIRP of the corporate debtor. This is evident from the judgements rendered by the Hon'ble SC in Innoventiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s important is that the existence of the dispute and/or the suit or arbitration proceeding must be pre-existing - i.e. it must exist before the receipt of the demand notice or invoice, as the case may be. In case the unpaid operational debt has been repaid, the corporate debtor shall within a period of the selfsame 10 days send an attested copy of the record of the electronic transfer of the unpaid amount from the bank account of the corporate debtor or send an attested copy of the record that the operational creditor has encashed a cheque or otherwise received payment from the corporate debtor (Section 8(2)(b)). It is only if, after the expiry of the period of the said 10 days, the operational creditor does not either receive payment from the corporate debtor or notice of dispute, that the operational creditor may trigger the insolvency process by filing an application before the adjudicating authority under Sections 9(1) and 9(2). This application is to be filed under Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 in Form 5, accompanied with documents and records that are required under the said form. Under Rule 6(2), the applicant is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility (Section 9(5)(ii)(d)). Section 9(5)(ii)(d) refers to the notice of an existing dispute that has so been received, as it must be read with Section 8(2)(a). Also, if any disciplinary proceeding is pending against any proposed resolution professional, the-application may be rejected (Section 9(5)(ii)(e)). (emphasis supplied) 25. Therefore, the adjudicating authority, when examining an application under Section 9 of the Act will have to determine: (i) Whether there is an operational debt as defined exceeding ₹ 1 lakh? (See Section 4 of the Act)* (ii) Whether the documentary evidence furnished with the application shows that the aforesaid debt is due and payable and has not yet been paid? and (iii) Whether there is existence of a dispute between the parties or the record of the pendency of a suit or arbitration proceeding filed before the receipt of the demand notice of the unpaid operational debt in relation to such dispute? If any one of the aforesaid conditions is lacking, the application would have to be rejected. Apart from the above, the adju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and uses the term shall be filed' whereas the proviso specifies a permanent suspension by the usage of the term shall ever be filed' as above noted. However, endeavour of the Ordinance in relation to the main provision seems to define the Lock Down' period due to the prevalence of the pandemic, however, uncertain it may be, which came to be enforced on 25.03.2020 as stated in the objects and reasons and which explains the said date being specified as the relevant date for reckoning the exclusion of default. This period of lock down enforced, it must be noted is in itself uncertain as to how long it is going to be in vogue as its curtailment or extension depends upon the status on the ground for the arrest of the pandemic and seems to be also fluid in relation to individual States as well, thereby interrupting business activity for reasons beyond their control, the said term as used in the objects and reasons itself of Ordinance (No. 9 of 2020). Thus endeavoring to define the relevant period in the main proviso initially for a minimum fixed period of six months commencing from 25.03.2020, the main provision leaves it open to the Executive to either limit it to the si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is well-known, may serve different purpose; (i) qualifying or excepting certain provisions from the main enactment; (ii) it may entirely change the very concept or the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable; (iii) it may be so embedded in the Act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself; and (iv) it may be used merely to act as an optional addenda to the enactment with the sole object of explaining the real intendment of the statutory provision. (See S. Sundaram Pillai, etc. vs. V.R. Pattabiraman reported in AIR 1985 SC 582) 29.10. With a view to explain the role of a proviso, in the matter of M. Vetri Selvan V. High Court of Judicature at Madras, represented by the Registrar General, High Court of Madras, Chennai-600 104 in W.P. No. 21542 of 2013, Chief Justice Sanjay Kishan Kaul as he then was of the High Court of Judicature of Madras had gone in depth into the aspect extracting extensively from several citations of the Apex Court in this regard including the above cited case of La ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pective of the reasons attributable to such default arising during the said period commencing from 25.03.2020 in relation to an Operational Debt or Financial Debt whether they are admitted or not by the concerned debtors, as otherwise the inclusion of Corporate Debtor itself as a Corporate Applicant under Section 10 would not have been included within the ambit of the main provision. 29.13. At this stage it will be appropriate to also refer to the decision of the Hon'ble Supreme Court rendered in B. K. Educational Services Private Limited -Vs- Parag Gupta case dealing with the applicability of the Law of Limitation to I B Code in relation to financial and operational debts and its default. Since it also deals with the reckoning of dates to ascertain whether a debt is capable of being enforced in law, the observations made by the Hon'ble SC can also be applied effectively to the instant case as well taking into consideration the following observations: - The definition of default in Section 3(12) uses the expression due and payable followed by the expression and is not paid by the debtor or the corporate debtor......... . Due and payable in Section 3(12), there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l settled that where the same word occurs in a similar context, the draftsman of the statute intends that the word bears the same meaning throughout the statute (see Bhogilal Chunilal Pandya v. State of Bombay, 1959 Supp. (1) SCR 310 at 313-314). It is thus clear that the expression default bears the same meaning in Sections 7 and 8 of the Code, making it clear that the corporate insolvency resolution process against a corporate debtor can only be initiated either by a financial or operational creditor in relation to debts which have not become time-barred. 29.14. The most important aspect which is required to be noted in B.K. Educational's case apposite in relation to the present context is the observation of the Hon'ble Supreme Court to the effect that the dispute or pendency of a suit or arbitration would necessarily bring in the Limitation Act, for if a suit or arbitration proceeding is time-barred, it would be liable to be rejected. This again is an important pointer to the fact that when the expression due and due and payable occur in Sections 3(11) and 3(12) of the Code, they refer to a default which is non-payment of a debt that is due and payable in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and there is no ambiguity in this regard. 29.16. Thus, having dealt with the power of the Executive to promulgate laws having retrospective effect based on decided case laws and also answering the question posed in relation to the retrospectivity of the applicability of Section 10A by relating it back to 25.03.2020 being the relevant date to be reckoned in relation to suspension of filing of application seeking for initiation of CIRP in the affirmative, it is only required of this Tribunal to ascertain as to whether the date of default falls within or outside the 'Lakshman Rekha', namely 25.03.2020 drawn by the legislation by way of the Ordinance (No. 9 of 2020) promulgated on 05.06.2020 in the present case. 30. WHETHER THE DATE OF DEFAULT FALLS PRIOR TO OR ON OR AFTER 25.03.2020 TO DETERMINE WHETHER THE APPLICATION IS TO BE PROCEEDED ANY FURTHER OR ALTERNATIVELY THIS TRIBUNAL IS TO RESTRAIN ITSELF FROM THE EXERCISE OF ITS JURISDICTION AVAILABLE TO IT UNDER SECTION 9 DUE TO THE APPLICABILITY OF SECTION 10A - 30.1. As already seen while dealing with the averments made in the instant application by the Applicant, it is the submission of the applicant that since t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plate at any stage when the objections can be raised, and also does not say in express terms about the filing of a written statement. Instead, the word 'shall' is used clearly implying thereby that it casts a duty on the Court to perform its obligations in rejecting the plaint when the same is hit by any of the infirmities provided in the four clauses of Rule 11, even without intervention of the defendant. 30.2. However, though rejection of the plaint under Order VII Rule 11 does not preclude the plaintiffs from presenting a fresh plaint in terms of Rule 13 thereof, in the case of I B Code, 2016 in view of the express terms of proviso to Section 10A of the Code the same may not be possible. Be that as it may, what is material to be noted is that in relation to the rejection of a plaint the focus of the Civil Court is required to be in relation to the plaint and its averments and the written statement, if any filed by the defendant is relegated to irrelevancy. Further, the stage at which the suit is pending is also not material and that the defendant is entitled to challenge the maintainability of a suit at any stage before the conclusion of the trial. In view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30.3. It is important to note that the above mentioned details are again required to be reflected in Form 5, being the form of application to be preferred by an Operational Creditor after due compliance of all the formalities as are required and more fully enunciated by the Hon'ble Supreme Court in Mobilox's case as extracted. Part IV of Form 5 seeks from the Operational Creditor the particulars of an Operational Debt, again under clause 1 and 2 of Part IV which are to the following effect: Clause 1. Total amount of debt, details of transactions On account of which debt fell due, and the Date from which such debt fell due Clause 2. Amount claimed to be in default and the date on which such default occurred 30.4. In the present case as rightly pointed out by the Applicant, the respondent/operational creditor in both Form 3 annexed to the typed set at pages no. 34 to 43 as well Form 5 annexed to the typed set at page nos. 7 to 29 which includes an affidavit as well swearing to the contents of the application explicitly mention as follows:- Form 3 Form of Demand Notice demanding payment under the Insolvency and Bankruptcy Code, 2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e debt fell due, for sake of brevity not repeated, consistently asserts the said date to be the date of default even according to the averments made by the respondent/operational creditor germane for the consideration of the present application filed by the applicant/corporate debtor. Hence the endeavour on the part of the Operational Creditor/respondent, after the promulgation of the Ordinance fixing the cut off or relevant date as 25.03.2020 and to portray as if the default had occurred even prior to the relevant date of 25.03.2020 and in the circumstances the petition in IBA/215/2020 should be proceeded with, cannot be accepted as the petitioner who approaches this Tribunal should be consistent in his pleadings and cannot be allowed to resile from it in order to suit his convenience. 31. Taking into consideration the above discussions, we are of the considered view that the Executive in the Promulgation of the Ordinance to meet an extra-ordinary situation and to avoid causing further stress to the already beleaguered businesses due to the prevalence of COVID pandemics throughout the world, including India and also in addition affected by the lock down enforced by the Union as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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