TMI Blog2021 (12) TMI 681X X X X Extracts X X X X X X X X Extracts X X X X ..... n 01.08.2020 and further that the said Notice, by way of caution was sent through speed post on 04.08.2020 which was received by the Corporate Debtor on 10.08.2020, as averred by the 1st Respondent/Operational Creditor in Part IV of its application at Sl.No.8 - Corporate Debtor before the Adjudicating Authority had taken a stand that there was no Contract or agreement between the parties in regard to the award of Interest at 18%, as claimed by the Operational Creditor and that the object of I B Code, 2016 is not a recovery of money and the frustration of contract, reasons for failure of export, inspection of goods on account of Covid lock down require detail rumination in fixing the liabilities of the Corporate Debtor. In short, according to the Corporate Debtor , there exists a Dispute and the determination of Default require and elaborate examination of facts and letting in of evidence to be adduced by the respective parties. In regard to the facts of the present case on hand are even though the Date of Default was on 03.01.2020, the application under Section 9 of I B Code was filed by the Operational Creditor/Applicant before the Adjudicating Authority on 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authority while passing the impugned order dated 26.02.2021 in IBA/35/KOB/2020 at paragraph 22 to 35 had observed the following:- 22. Dealing with the aspect as to whether the notification issued by the Jt. Secy. of Ministry of Corporate Affairs, Govt. of India dated 24.03.2020 under Section 4 of the I B Code has a retrospective or prospective effect. At this juncture, this Tribunal makes a useful reference to the said notification which runs to the effect that:- S.O. 1205(E).- In exercise of the powers conferred by the proviso to section 4 of the Insolvency and Bankruptcy Code, 2016 (31 of 2016), the Central Government hereby specifies one crore rupees as the minimum amount of default for the purposes of the said section . 23. In the absence of clear indication of a contrary intention in the notification issued on 24.03.2020 by the Ministry of Corporate Affairs, Government of India, then the substantive rights of individuals to an action is to be decided by the Law that existed when the action was initiated as the case may be. In the present case, notwithstanding the fact, the Central Government is delegated with a power to quantify the amount of default at a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this application is whether the provisions of Section 10A stand attracted to an application under Section 9 which was filed after 5th June 2020 (the date on which the provision came into force) in respect of a default which has occurred after 25 March 2020. 28. On 16th September 2020, the applicant filed an application under Section 9 of the IBC on the ground that there was a default in the payment of his operational dues. During the pendency of the application, an Ordinance was promulgated by the President of India on 5th June 2020 by which Section 10A was inserted into the IBC. Section 10A reads as follows: 10A. Suspension of initiation of corporate insolvency resolution process.- Notwithstanding anything contained in sections 7,9 and 10, no application for initiation of corporate insolvency resolution process of a Corporate Debtor shall be filed, for any default arising on or after 25th March, 2020 for a period of six months or such further period, not exceeding one year from such date, as may be notified in this behalf: Provided that no application shall ever be filed for initiation of corporate insolvency resolution process of a Corporate Debtor for the said defaul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 18. The initiation date is defined in Section 5(11) in the following terms: 5(11) initiation date means the date on which a financial creditor, corporate applicant or operational creditor, as the case may be, makes an application to the Adjudicating Authority for initiating corporate insolvency resolution process; The expression insolvency commencement date is defined in Section 5(12) in the following terms: 5(12) insolvency commencement date means the date of admission of an application for initiating corporate insolvency resolution process by the Adjudicating Authority under sections 7, 9 or section 10, as the case may be: xxxxxx 24. We have already clarified that the correct interpretation of Section 10A cannot be merely based on the language of the provision; rather it must take into account the object of the Ordinance and the extraordinary circumstances in which it was promulgated. It must be noted, however, that the retrospective bar on the filing of applications for the commencement of CIRP during the stipulated period does not extinguish the debt owed by the Corporate Debtor or the right of creditors to recover it. 25 Section 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Debtor is trying to take undue benefits of the lockdown and Section 10A inserted into the IBC. 34. As regards the question of pre-existing dispute, this Tribunal finds that the Demand Notice under Section 8 of the IBC, 2016 was served to the Corporate Debtor through email on 01.01.2020 by speed-post as well which was received by the Corporate Debtor on 10.08.2020. Even after receipt of the same, the Corporate Debtor failed to bring to the notice of the Operational Creditor the existence of any pre-existing dispute within 10 days of the receipt of the Demand Notice as stipulated in Section 8(2) of the IBC, 2016. Lately, on 05.09.2020 the Operational Creditor received a reply to the Demand Notice through email sent by the Corporate Debtor , which was ante-dated as 18.08.2020 to fall under the 10-day period. The Counsel for the Operational Creditor stated that he had also received the same reply to the Demand Notice U/s 8 of the IBC from the Corporate Debtor by speed-post on 10.09.2020 which was posted only on 05.09.2020 as clearly evident from the post receipt attached to the envelope. The same is beyond the 10 days limitation as prescribed U/s 8(2) of the IBC 2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24th April, 2020, the Respondent made a demand for the advance money which was paid to the Corporate Debtor through the proforma invoice raised by the Corporate Debtor on 25.11.2019 5. The stand of the Appellant is that on 27.06.2020, the 1st Respondent sent a notice through WhatsApp for taking legal action against the Corporate Debtor , seeking interest, opportunity cost, Lawyers charges. Apart from that, a Form III as per Section 8 of the I B Code 2016 was issued on 1.8.2020 by the legal representatives of the Respondent for USD 1 lakh together with interest of 18% till date of payment. 6. The Learned Counsel for the Appellant contends that 1st Respondent had admitted in para 9 of the application form V under Section 9 of the I B Code that the debt is due and payable on 30.04.2020, which is after the Code for date of 25.03.2020 under Section 10A of the Code. The clear cut stand of the Appellant is that the 1st Respondent in order to bring the application within Section 10 A of the Code had stated that the date of default was 3.1.2020. In fact, the 1st Respondent had not submitted any evidence that the default was committed on 03.01.2020 except agreeing for a date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al No.4050 of 2020 wherein it was clearly observed and held that the parties are bound by the pleadings, and in any case, when the date of default is after 25.03.2020 the application under Section 9 would be barred by Section 10A of the I B Code, 2016. 12. According to the Learned Counsel for the Appellant the judgement of this Tribunal in Andal Bonumalla V. Tomato Trading LLP (vide Company Appeal (AT)(Ins) No.752 of 2019 where this Tribunal held that amounts paid as Advance would not fall within the term Operational Debt for the purpose of the I B Code, 2016. 13. The Learned Counsel for the Appellant adverts to the Judgement of this Tribunal in Madhusudan Tantia V. Amit Choraria (Comp. App. (AT)(Ins) No.557/2020) wherein it is held that the notification is prospective in nature and it does not apply to pending applications. Moreover, it is projected on the side of the Appellant that the right of a person is decided by Law that existed on the date of filing of the Application . 14. The Learned Counsel for the Appellant proceeds to point out that the 1st Respondent/Operational Creditor has initiated the Corporate Insolvency Proceedings on 16.09.2020 which is after the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant of jurisdiction as per Section 10A of the Code. 18. The Learned Counsel for the Appellant submits that the 1st Respondent will not come under the definition of Operational Creditor as per Section 5(20) of the I B Code, 2016, since it is an admitted fact that the 1st Respondent had only made an advance towards the purchase of goods. 19. The Learned Counsel for the Appellant submits that the 1st Respondent had admitted that the purchase order was issued through various negotiations and sample testing which was during 30th September, 2018 and that the purchase order was placed after period of one year i.e. on 25.11.2019. Indeed, though the Corporate Debtor was willing to deliver the goods, there was complete disruption in the procurement and processing in the month of February, March and April, 2020 and hence the Corporate Debtor could not deliver the goods before the agreed date of 25.04.2020 as the Central Government and State Government imposed lockdown with effect from 25.03.2020. 20. The Learned Counsel for the Appellant brings it to the notice of this Tribunal as against the below purchase order dated 25.11.2019 the 1st Respondent had made an advance of U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was to ensure that Small and Medium Enterprises viz., SMEs and MSMEs are not subjected to Insolvency proceedings during the lockdown or immediately thereafter. The present writ petition accordingly deserves consideration. Prima facie, this is an error by the NCLT, as the notification dated 24th March 2020 was clearly applicable. Subject to the Petitioner depositing an amount of ₹ 10 lakhs with the ld. Registrar General of this Court, the order of the NCLT dated 29th May, 2020 shall remain stayed till the next date of hearing. The deposit shall be made within two weeks. The Company VMA Enterprises Pvt Ltd. is permitted to carry on its day to day operations. However, the IRP is given liberty to approach this Court in case he deems fit for any further directions. 6. Ld. ASG, who is appearing for the Union of India is requested to bring to the notice of the NCLT the notification dated 24th March, 2020 which is placed at page 60 of the present petition. 26. The Learned Counsel for the Appellant refers to the Judgement of this Tribunal in the matter of Madhusudan Tantia V. Amit Choraria (Comp. App. (AT)(Ins) No.557/2020) wherein at paragraph 51 to 56 it is observed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tantive right to file and to initiate CIRP against the Corporate Debtor . It is needless for this Tribunal to point out that upon an application / petition being filed by the concerned person in terms of the ingredients of Section 9(1) of the Code and the default sum is quite in tune with Section 4 of the Code, the application / petition is to be admitted by the Adjudicating Authority , of course subject to the ingredients of Section 9(2) to Section 9(5) of the Code. 56. As far as the present case is concerned, this Tribunal, after carefully and with great circumspection, ongoing through the contents of the notification dated 24.03.2020 issued by the Ministry of Corporate Affairs, Government of India, whereby and whereunder the minimum amount of default limit was specified as Rs. one crore (obviously raising the minimum amount from Rs. one lakh to one crore) unerringly comes to a definite conclusion that the said notification is only Prospective in nature and not a retrospective one because of the simple reason the said notification does not in express term speaks about the applicability of retrospective or retroactive operation. Suffice it for this Tribunal to poi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 03.06.2019 is set aside. 28. The Learned Counsel for the Appellant relies on the Judgement of the Hon ble Supreme Court in the matter of Ramesh Kymal V Seimens Gamesa Renewable Power Ltd (vide CA No.4050 of 2020) wherein at para 23 and 24 it is observed as under:- 23 Adopting the construction which has been suggested by the appellant would defeat the object and intent underlying the insertion of Section 10A. The onset of the Covid-19 pandemic is a cataclysmic event which has serious repercussions on the financial health of corporate enterprises. The Ordinance and the Amending Act enacted by Parliament, adopt 25 March 2020 as the cut-off date. The proviso to Section 10A stipulates that no application shall ever be filed for the initiation of the CIRP for the said default occurring during the said period . The expression shall ever be filed is a clear indicator that the intent of the legislature is to bar the institution of any application for the commencement of the CIRP in respect of a default which has occurred on or after 25 March 2020 for a period of six months, extendable up to one year as notified. The explanation which has been introduced to remove doubt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Mashkour and Kay Bouvet directly, Mashkour had directed the said amount of ₹ 47,12,10,000/ to be adjusted against the supplies to be made to Mashkour Sugar Company Ltd. for the purpose of completing the Project. On the contrary, the documents clarify that the termination of the contract with Overseas would not absolve Overseas of any liability for the balance of the LoC 1st tranche of 25 Million disbursed to them other than USD 10.62 paid to Kay Bouvet. 33. Resultantly, this appeal is allowed and the impugned order dated 21st December 2018, passed by NCLAT is quashed and set aside. The order passed by NCLT dated 26th July 2018, is maintained. 30. The Learned Counsel for the Appellant refers to the Order of this Tribunal dated 25.10.2021 in Jumbo Paper Products V. Hansraj Agrofresh Pvt Ltd (vide Comp.App.(AT)(Ins) No.813/2021) wherein at paragraph 3 and 10 it is observed as under:- 3. The Learned Counsel for the Appellant-Operational Creditor has argued that Operational Creditor used to provide corrugated paper boxes/cartons to the Corporate Debtor and he has claimed that the Corporate Debtor never raised any dispute about quality or quantity of the suppli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which was served to the Appellant through email on 01.8.2020 and received by the Appellant through speed post on 10.08.2020. 33. It is represented on behalf of the 1st Respondent that after the lapse of the statutory period of 10 days, the Learned Counsel for the 1st Respondent/Applicant received a frivolous reply to the demand notice through email sent by the applicant ante dated 18.08.2020 to come under the 10 days period of limitation, as contemplated under Section 8(2) of the Code. 34. The Learned Counsel for the 1st Respondent points out that the Learned Counsel for the 1st Respondent received the same reply to the demand notice under Section 8 of the Code from the Appellant through speed post on 10.09.2020 which was posted only on 05.09.2020 and this was clearly evident from the postal receipt attached to the envelop. Indeed, in the said reply the Appellant had acknowledged and admitted the debt and default and issuance of proforma invoice alongwith the payment received by him. 35. The Learned Counsel for the 1st Respondent points out that the Appellant in reply had stated that having procured and stored different grade of cashew and the same being perishable good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ys when the Appellant had failed to fulfil the obligation of shipping the goods. Besides this, after the default on 03.01.2020, based on the Appellant s requests there was mere Accommodation and not an Extension of the Contract as alleged. 41. The Learned Counsel for the 1st Respondent contends that the communication dated 25.11.2019 and 31.12.2019 between the parties and relied upon by the Appellant confirms the shipment by the Appellant to be despatched in the 1st week of January, 2020 and further that the WhatsApp conversation between the 1st Respondent/Applicant and the Appellant vindicates the 1st Respondent s stand with respect to the Contract , contractual obligations of both sides, delivery time lines and the default in delivery lines and failure on Appellant s side, in satisfying the contractual obligations. 42. It is the stand of the 1st Respondent that the date of refusal to the deliver the goods and return the money is not to be treated as the date of default in view of the fact that the default took place on 03.01.2020 when the promised date of shipment was not satisfied and complied with by the Appellant, which was rightly held so by the Adjudicating A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e information utility. It is clear that such notice must bring to the notice of the operational creditor the existence of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the dispute is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster. However, in doing so, the Court does not need to be satisfied that the defence is likely to succeed. The Court does not at this stage examine the merits of the dispute except to the extent indicated above. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application. 46. The Learned Counsel for the 1st Respondent cites the Order of this Tribunal dated 16.1.2020 in Unistill Alcoblends Pvt Ltd Vs India Brewery and Distillery Pvt Ltd (vide Comp App (AT)(Ins) No.162/2019) wherein at paragraph 6 to 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no appeal is preferred against it, it clearly provides that if it is not challenged in appeal it would be treated as correct and binding on the parties. In such a case an appeal against the final decree would inevitably be limited to the points arising from proceedings taken subsequent to the preliminary decree and the same would be dealt with on the basis that the preliminary decree was correct and is beyond challenge. It would be idle to contend that what is prohibited is a challenge to the factual correctness of the decree on the merits, because if the said decree is voidable, as in the present case, the very point as to its voidable character is a part of the merits of the dispute between the parties. Whether or not 0. 32, r. 7(1) applies to the case would certainly be a matter of dispute in such a case and the object of s. 97 is precisely to disallow any such dispute being raised if the preliminary decree is not challenged by appeal. The whole object which s. 97 intends to achieve would be frustrated if it is held that only the factual correctness of the decree cannot be challenged but its legal validity can be even though an appeal against the preliminary decree has not been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isis et non guieta movere. To adhere to prece- dent and not to unsettle things which are settled. But it applies to litigated facts and necessarily decided ques- tions. Apart from Article 14 of the Constitution 33of India, the policy of courts is to stand by precedent and not to disturb settled point. When court has once laid down a principle of law as applicable to certain state of facts, it will adhere to that principle, and apply it to all future cases where facts are substantially the same. A deliberate and solemn decision of court made after argument on question of law fairly arising in the case, and necessary to its determina- tion, is an authority, or binding precedent in the same court, or in other courts of equal or lower rank in subsequent cases where the very point is again in controversy unless there are occasions when departure is rendered necessary to vindicate plain, obvious principles of law and remedy continued injustice. It should be invariably applied and should not ordinarily be departed from where decision is of long standing and rights have been acquired under it, unless considerations of public policy demand it. But in Nakara it was never required to be decid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - 'no doubt prima facie of questionable policy and contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law.' The courts will not, therefore, ascribe retrospectivity to new laws affecting rights unless by express words or necessary implication it appears that such was the intention of the legislature. The Parliament can delegate its legislative power within the recognised limits. Where any rule or regulation is made by the person or authority to whom such powers have been delegated by the legislature it may or may not be possible to make the same so as to give retrospective operation. It will depend on the language employed in the statutory provision which may in express terms or by necessary implication empower the authority concerned to make a rule or regulation with retrospective effect. But where no such language is to be found it has been held by the courts that the person or authority exercising subordinate legislative functions cannot make a rule, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rospective and retrospective operation should not be given to a statute so as to affect, alter or destroy an existing right or create a new liability or obligation unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only. 53. The Learned Counsel for the 1st Respondent adverts to the decision of the Hon ble Supreme in Director General of Foreign Trade and Anr. Vs Kanak Exports and Anor (2016) 2 SCC 226 wherein at paragraph 110.2 -110.5 it is observed as under:- 110.2 State of Rajasthan Ors. v. Basant Agrotech (India) Ltd.11 21. There is no dispute over the fact that the legislature can make a law retrospectively or prospectively subject to justifiability and acceptability within the constitutional parameters. A subordinate legislation can be given retrospective effect if a power in this behalf is contained in the principal Act. In this regard we may refer with profit to the decision in Mahabir Vegetable Oils (P) Ltd. v. State of Haryana (2006) 3 SCC 620, wherein it has been 41. We may at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration. The idea behind the rule is that a current law should govern current activities. Law passed today cannot apply to the events of the past. If we do something today, we do it keeping in view the law of today and in force and not tomorrow s backward adjustment of it. Our belief in the nature of the law is founded on the bed rock that every human being is entitled to arrange his affairs by relying on the existing law and should not find that his plans have been retrospectively upset. This principle of law is known as lex prospicit non respicit : law looks forward not backward. As was observed in Phillips vs. Eyre, a retrospective legislation is contrary to the general principle that legislation by which the conduct of mankind is to be regulated when introduced for the first time to deal with future acts ought not to change the character of past transactions carried on upon the faith of the then existing law. 29. The obvious basis of the principle against retrospectivity is the principle of 'fairness , which must be the basis of every legal rule as was observed in the decision reported in L Office Cherifien des Phosphates v. Yamashita- Shinnihon Steamship Co. Ltd. Thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the right accrued to the appellant to eject the respondents amending Act 33 of 1952 stepped in and deprived him of that right by requiring him to comply with the statutory requirement as to a valid notice which has to be given for ejecting tenants. 9. In this connection it is relevant to distinguish between an existing right and a vested right. Where a statute operates in future it cannot be said to be retrospective merely because within the sweep of its operation all existing rights are included. As observed by Buckley, L.J. in West v. Gwynne retrospective operation is one matter and interference with existing rights is another. ..If an Act provides that as at a past date the law shall be taken to have been that which it was not, that Act I understand to be retrospective. That is not this case. The question here is whether a certain provision as to the contents of leases is addressed to the case of all leases or only of some, namely, leases executed after the passing of the Act. The question is as to the ambit and scope of the Act, and not as to the date as from which the new law, as enacted by the Act, is to be taken to have been the law. These observations wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to terminate matures; that is the date on which the tenancy stands terminated . 54. The Learned Counsel for the 1st Respondent relies on the Judgement of the Hon ble Supreme Court in Ramesh Kyamel Vs Seimens Ganesa Renewable Power Pvt Ltd (Civil Appeal No.4050 of 2020) wherein at paragraph 25 and 26 it is observed as under:- 25. Section 10A does not contain any requirement that the Adjudicating Authority must launch into an enquiry into whether, and if so to what extent, the financial health of the Corporate Debtor was affected by the onset of the Covid-19 pandemic. Parliament has stepped in legislatively because of the widespread distress caused by an unheralded public health crisis. It was cognizant of the fact that resolution applicants may not come forth to take up the process of the resolution of insolvencies (this as we have seen was referred to in the recitals to the Ordinance), which would lead to instances of the Corporate Debtor s going under liquidation and no longer remaining a going concern. This would go against the very object of the IBC, as has been noted by a two-Judge bench of this Court in its judgment in Swiss Ribbons (P) Ltd. v. Union of India (2019 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... creditor or corporate applicant makes an application to the adjudicating authority for initiating the process. On the other hand, the insolvency commencement date is the date of the admission of the application. This distinction is also evident from the provisions of sub-section (6) of Section 7, sub-section (6) of Section 9 and sub-section (5) of Section 10. Section 7 deals with the initiation of the CIRP by a financial creditor; Section 8 provides for the insolvency resolution by an operational creditor; Section 9 provides for the application for initiation of the CIRP by an operational creditor; and Section 10 provides for the initiation of the CIRP by a corporate applicant. NCLAT has explained the difference between the initiation of the CIRP and its commencement succinctly, when it observed: 13. Reading the two definition clauses in juxtaposition, it emerges that while the first viz. 'initiation date' is referable to filing of application by the eligible applicant, the later viz. 'commencement date' refers to passing of order of admission of application by the Adjudicating Authority. The 'initiation date' ascribes a role to the eligible applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of learned Single Judge in Settu versus The State (supra). It is well settled that a coordinate Bench cannot take a contrary view and in event there was any doubt, a coordinate Bench only can refer the matter for consideration by a Larger Bench. The judicial discipline ordains so. This Court in State of Punjab and another versus Devans Modern Breweries ltd. and another, (2004) 11 SCC 26, in paragraph 339 laid down following:- 339. Judicial discipline envisages that a coordinate Bench follow the decision of an earlier coordinate Bench. If a coordinate Bench does not agree with the principles of law enunciated by another Bench, the matter may be referred only to a Larger Bench.(See Pradip Chandra Parija V. Pramod Chandra Patnaik) , (2002) 1 SCC 1 followed in Union of India Vs. Hansoli Devi, (2002) 7 SCC 273. But no decision can be arrived at contrary to or inconsistent with the law laid down by the coordinate Bench. Kalyani Stores (supra) and K.K. Narula (supra) both have been rendered by the Constitution Benches. The said decisions, therefore, cannot be thrown out for any purpose whatsoever; more so when both of them if applied collectively lead to a contrary decision pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever exported to the Operational Creditor, although substantial sum was transferred to the Corporate Debtor . Therefore, the 1st Respondent/Operational Creditor had requested the Corporate Debtor to return the advance payment on 30.04.2020 to which the Corporate Debtor acknowledged his debt and assured that the same would be transferred soon. 62. The grievance of the 1st Respondent/Operational Creditor is that that the Corporate Debtor had delayed to fulfil its commitment of refunding the due amount to the Operational Creditor . A Demand Notice under Section 8 of the I B Code (vide Form 3 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 to the Corporate Debtor was issued by the 1st Respondent/Operational Creditor, on 1.8.2020 through WhatsApp and email . The notice was also sent through speed post on 04.08.2020 which was received by the Corporate Debtor on 10.08.2020. 63. The plea of the 1st Respondent is that the Corporate Debtor had not made any payment of Debt and also not raised any dispute in terms of the ingredients of Section 8(2) of the I B Code relating to the Debt , within 10 days of the receipt of noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent and the last date agreed for export was on 25.04.2020 and that the Corporate Debtor could not procure and Export the Goods because of the Lockdown before 25.04.2020. In fact, the 1st Respondent/ Operational Creditor had refused the Corporate Debtor from exporting the goods after 25.04.2020 and insisted for the return of the amount paid in advance. 68. The legal plea taken on behalf of the Corporate Debtor in its reply before the Adjudicating Authority is that even assuming, without admitting 25.04.2020 is the date of the refusal of the goods and the return of the money is considered as the date of default, the 1st Respondent/Operational Creditor is ineligible to prefer an application under Section 9 of the Code, since the said date will fall within the period of 25.03.2020 and 25.09.2020. As such the application is liable to be dismissed for want of jurisdiction as per Section 10A of the I B Code. 69. According to the Corporate Debtor , the Application filed by the 1st Respondent/Operational Creditor is not maintainable because of the fact there was a Pre-existing dispute between the parties in respect of the Contract including the purchase terms , ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stock or any similar instrument; (d) the amount of any liability in respect of any lease or hire purchase contract which is deemed as a finance or capital lease under the Indian Accounting Standards or such other accounting standards as may be prescribed; (e) receivables sold or discounted other than any receivables sold on nonrecourse basis; (f) any amount raised under any other transaction, including any forward sale or purchase agreement, having the commercial effect of a borrowing; (g) any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price and for calculating the value of any derivative transaction, only the market value of such transaction shall be taken into account; (h) any counter-indemnity obligation in respect of a guarantee, indemnity, bond, documentary letter of credit or any other instrument issued by a bank or financial institution; (i) the amount of any liability in respect of any of the guarantee or indemnity for any of the items referred to in sub-clauses (a) to (h) of this clause; 76. Adjudicating Authority. As seen from the I B Code, 2016 an Adjudicating Authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Corporate Debtor s where the default has occurred on or after 25 March 2020 outside the pale of protection because the application was filed before 5 June 2020. . 30. Section 10A does not contain any requirement that the Adjudicating Authority must launch into an enquiry into whether, and if so to what extent, the financial health of the Corporate Debtor was affected by the onset of the Covid-19 pandemic. Parliament has stepped in legislatively because of the widespread distress caused by an unheralded public health crisis. It was cognizant of the fact that resolution applicants may not come forth to take up the process of the resolution of insolvencies (this as we have seen was referred to in the recitals to the Ordinance), which would lead to instances of the Corporate Debtor s going under liquidation and no longer remaining a going concern. This would go against the very object of the IBC, as has been noted by a two-Judge bench of this Court in its judgment in Swiss Ribbons (P) Ltd. v. Union of India7. 33. The date of the initiation of the CIRP is the date on which a financial creditor, operational creditor or corporate applicant makes an application to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his/its actionable right of cause of action had arisen earlier to an amendment that has been brought about, increasing the threshold limit to ₹ 1 Crore [vide Notification dated 24.03.2000 issued by the Ministry of Corporate Affairs in S.O. 1205(E)] for considering the Application filed under Section 7 or 9 of I B Code on after 24.03.2020, even if the Debt is of a date prior to 24.03.2020. In law, a Party has no vested right in respect of a Fora , albeit he has a Actionable Right . After all, the impediment in Section 10(A) of the I B Code is to be viewed from the point of view of the purpose and object sought to be achieved in enacting the same by the Parliament in its wisdom. 81. In regard to the facts of the present case on hand are even though the Date of Default was on 03.01.2020, the application under Section 9 of I B Code was filed by the Operational Creditor/Applicant before the Adjudicating Authority on 16.09.2020 wherein the Operational Creditor had claimed a total amount of debt USD 1,13,500 payable by the Corporate Debtor to it including interest at 18% per annum amounting to USD 13,500 as on 31.08.2020, in view of the fact that the contract ..... X X X X Extracts X X X X X X X X Extracts X X X X
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