TMI Blog2023 (3) TMI 1333X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 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 App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any Law Tribunal , Division Bench I, Chennai) in C.P. (IB) 33/CHE/2022, the Financial Creditor / M/s. Union Bank of India (erstwhile Andhra Bank ), preferred this Appeal . While dismissing the Application , under Section 95 of the Insolvency and Bankruptcy Code, 2016 (hereinafter, referred to as The Code ), the Adjudicating Authority , has observed as follows: 1. It is an Application filed under Section 95 of IBC, 2016 seeking Initiation of Insolvency Resolution Process as against Mr. P.K. Balasubramanian. An Application as already been filed against the personal guarantor in CP/5/CHE/2022 and this Tribunal vide its order dated 07.06.2022 has already appointed an IRP under Section 97 of IBC, 2016. 2. As per Section 96, IBC, 2016 on filing of an Application under Section 95 of the Code, Interim Moratorium will commence and hence no Application against the same Respondent can be filed before any forum. 3. In view of the same, the present CP/IB/33/CHE/2022 stands dismissed with liberty in accordance with law. 2. It is the main case of the Appellant / Union Bank of India that an Application was filed against the Personal Guarantor of the Corporat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the case of Krishan Kumar Basia Vs. State Bank of India (2022) ibclaw.in 500 NCLAT in support of his submission that expression filing and date of Application , could be construed to mean the date of filing of an Application , manually and electronically and allotting of number electronically and not the date of numbering by the Registry finding it to be defect free. The relevant portion of the Judgement relied upon by the Learned Counsel for the Appellant is extracted below: 24. The above judgement of the Hon'ble Supreme Court also clearly laid down the principle that even if there is any defect in the Application, which is subsequently cured, the date of presentation of the Application shall remain the same and shall not be dependent on the date when defects are cured. We, thus, are of the considered opinion that the Adjudicating Authority after due consideration has taken correct view of the matter in holding that filing of the Application under Section 95 by the State Bank of India is on a date when Application was filed and allotted number electronically and the submission of the Appellant that date of filing of the Application shall be the date when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 022 were listed. The Application under Section 95 of the I B Code, 2016, preferred by the Appellant / Union Bank of India , was dismissed on the ground that CP 5/CHE/2022, filed by the State Bank of India, against the same Personal Guarantor , vide Order dated 07.06.2022, an IRP was appointed under Section 97 of the Code. Even in the Order , dated 07.06.2022, passed in CP 5/CHE/2022, it is pertinent to mention that the Report , by the RP , was called for, to recommend for the acceptance or rejection of the Application . 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. Sections 96, 97, 99 100 of the Code , reads as follows: 96. Interim moratorium. (1) When an application is filed under section 94 or section 95 (a) an interim-moratorium shall commence on the date of the application in relation to all the debts and shall cease to have effect on the date of admission of such application; and (b) during the interim-moratorium period (i) any legal action or proceeding pending in respect of any debt shall be deemed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r rejection of the application. (2) Where the application has been filed under section 95, the resolution professional may require the debtor to prove repayment of the debt claimed as unpaid by the creditor by furnishing (a) evidence of electronic transfer of the unpaid amount from the bank account of the debtor; (b) evidence of encashment of a cheque issued by the debtor; or (c) a signed acknowledgment by the creditor accepting receipt of dues. (3) Where the debt for which an application has been filed by a creditor is registered with the information utility, the debtor shall not be entitled to dispute the validity of such debt. (4) For the purposes of examining an application, the resolution professional may seek such further information or explanation in connection with the application as may be required from the debtor or the creditor or any other person who, in the opinion of the resolution professional, may provide such information. (5) The person from whom information or explanation is sought under sub-section (4) shall furnish such information or explanation within seven days of receipt of the request. (6) The resolution prof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation 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. 8. 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. 9. A three Judge Bench of this Tribunal in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted mandating that the person verifying the pleading was also required to furnish an affidavit in support of its pleadings. In addition to the above, Order 4 of the Code, which deals with the institution of suits, was also amended and sub-rule (3) was added to Rule 1 and it was specifically stipulated that the plaint to be filed in compliance with the provisions of Orders 6 and 7 would not be deemed to have been duly instituted unless it complied with the requirements specified in sub-rules (1) and (2). It was the further case of the appellants that having regard to the provisions of Chapter 7 Rule 1 of the Original Side Rules, the reference made in sub-rule (3) of Rule 1 Order 4 of the Code would also include the amendments brought about in the said orders with effect from 1-7-2002. Consequently, it was urged that since the amended requirements of sub-rule (4) of Rule 15 Order 6 had come into operation with effect from 1-7-2002 and since the suit had been instituted thereafter on 26-7-2002, the same could not be said to have been duly instituted within the meaning of sub-rule (3) of Rule 1 Order 4 of the Code. It was urged that the entire proceedings from the filing of the plaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that had been passed by the learned Single Judge at a point of time when the suit had not been duly instituted could not survive. The judgment of the Division Bench of the Calcutta High Court was questioned before the Hon ble Supreme Court and submission was made that the defect, if any, in the plaint is a mere irregularity and can be cured by the amendment and consequently when the verification in the plaint is amended, the plaint must be taken to be presented not on the date of the amendment, but on the date when it was first presented. It was submitted that Division Bench of the Calcutta High Court erred in holding that having regard to the provisions of sub-rule (3) of Rule 1 Order 4 of the Code, the suit will be deemed to have been instituted on the date on which the defects stood cured and not from the date of initial presentation of the plaint. The Hon ble Supreme Court allowed the Appeal and set-aside the Division Bench judgment of the High Court holding that any omission in respect of the plaint shall not render the plaint invalid and that such defect or omission was curable and plaint shall also date back to the presentation of the plaint. In paragraph 50, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 . 11. However, 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, keeping in view the fact that the Order copies do not reflect any such submission by the Appellant , despite the fact that admi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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