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TMI Blog2023 (8) TMI 1323X X X X Extracts X X X X X X X X Extracts X X X X ..... t the `date of default' in `Form- I', `Part-IV' is specifically mentioned as 30.04.2020 and even in the Rejoinder filed by the Bank it is mentioned that the `date of default' has been backdated from 30.06.2022 to 30.04.2022 as 30.06.2022 is the date of NPA. It is thus submitted that the date of default has never been 28.02.2020 but it has been brough on record during the pendency of the Application before the NCLT and has been relied upon by the Tribunal. On the contrary, Counsel appearing on behalf of the bank, on Caveat, has submitted that the `date of default' dated 28.02.2020 has been uploaded on `Form-D' in terms of an Order of the NCLT dated 03.04.2023. It is submitted that 28.02.2020 is uploaded in the Information Utility i.e., NeSL after giving six opportunities to the Appellant to respond. 3. We have briefly heard Counsel for the Parties and are of the opinion that it would be fair to the both the Parties if they submit their Short Written Submissions of three pages each at this stage in order to decide as to whether the present Appeal deserves to be admitted or not. The arguments of Indusind Bank Ltd. is heard on the issue of admission of the Appeal and the `Judgement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecuted a supplementary memorandum of entry on 02.12.2019 extending the mortgage of the property belonging to M/s Classic Coffee. The Corporate Debtor and the Guarantor also executed a letter of acknowledgement of debt confirming the outstanding payable by them as on 04.12.2019. 7. It is stated that on account of continuous default on the part of the Corporate Debtor, its account was declared as Non-performing Asset (NPA) on 30.06.2020 in terms of prudential guidelines of the Reserve Bank of India on income recognition and asset classification dated 01.07.2015. The Financial Creditor subsequently issued a demand cum loan recall notice on 07.12.2020 calling upon the Corporate Debtor and the Guarantor to make the payment within 15 days but no payment was made, therefore, the amount of Rs. 94,01,79,117.26/- was found due as on 06.04.2022 with interest @ 11.25% per annum with monthly rests from 07.04.2022 apart from penal interest of 2% till repayment of the entire amount. 8. The application under Section 7 of the Code was filed on 08.04.2022. The Financial Creditor, in its application filed under Section 7 of the Code has averred in Part IV of Form I that the amount in default calcul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0. The date of default mentioned as per NeSL report for this loan amount of Rs.50,78,54,032.00/- (Rupees Fifty Crores, Seventy Eight Lakhs Fifty Four Thousand and Thirty Two only) is 28.02.2020; and the instant Company Petition has been filed on 18.04.2022, which is within the period of limitation" 11. Counsel for the Appellant has submitted that the Adjudicating Authority has committed a patent error in respect of the Loan Account No. 603014030038 of Rs. 50,78,54,032.00/- by changing the date of default from 30.04.2020 to 28.02.2020, for taking it out from the purview of Section 10A of the Code. 12. Counsel for the Appellant has submitted that in respect of Account No.603014030038 of Rs.50,78,54,032.00/-, the averment made by the Financial Creditor, in Part IV of Form I, is that the date of NPA of this account is 30.06.2020 and the date of default is 30.04.2020 and has also made an averment in Para 11 of its rejoinder that "and as of 30.04.2022, the amount in default with the Financial Creditor by the Corporate Debtor was more than 94.00 Crores. Hence, for the purposes of compliance of provisioning norms of RBI, the date of default and date of NPA was backdated to 30.04.2020 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce the record of information utility in Form D. The letter dated 03.04.2023 of the NCLT is reproduced as under:- Order It is brought to the attention of all stakeholders that Regulation 20(1A) has been inserted in the Insolvency and Bankruptcy Board of India (Information Utilities) Regulation, 2017 vide notification no. IBBI/2022-23/GN/REG085, dated 14th June, 2022. It reads as follows:- 20. Acceptance and receipt of information [(1A) (Before filing an application to initiate CIRP under Section 7 or 9, as the case may be, the creditor shall file the information of default, with the information utility and the information utility shall process the information for the purpose of issuing record of default in accordance with regulation 21.]" 2. In view of the aforesaid, all the Petitioner(s) of Section 7 and 9 under the Insolvency and Bankruptcy Code, 2016 are requested to comply with the above Regulations and produce the record of information utility (NeSL certificate) at the earliest for effective hearing of their cases. This issues with the approval of Hon'ble President, NCLT." 17. It is submitted that the Financial Creditor procured fresh record of default on 26.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spond to it. Consequently, information utility ad sent three reminders on 21.04.2023, 24.04.2023 & 29.04.2023, though mail dated 21.04.2023 which was opened at 10:58:48 AM but not responded. All these details have been captured in ROD by the IU and the said details are given in a tabulated form which is reproduced as under:- 20. Counsel for the Financial Creditor has further submitted that the process of categorising the submitted information as authenticated, rejected and disputed by NeSL-IU is referred to as time norms for IU services, which is reproduced as under:- Time Norms for IU Services Nature of Service Time Norm 1)User Registration 1. For Entities 2. For Individuals 3. Insolvency Professionals For non-Individual categories, submission of Documents for User Registration on NeSL-IU Portal is on-line. Upon successful submission, the NeSL will scrutinize the details and approve the User Registration within 30 minutes, if the submission is made between 10.00 Hrs and 18.00 Hrs on NeSL Working Days. For submissions made outside the above working hours, approval by NeSL will happen on the next working day. The process of registration for Indivi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entication status would be categorized as " Authenticated" for Financial Creditors which are Banks appearing in the Second Schedule of RBI Act and "Deemed to be Authenticated" for other Financial Creditors and Operational Creditors. (c)NeSL tracks the delivery of e-mails sent to the Debtor and records it in its database. (d)In such Cases, Record of Default would be ready in 16 days from the date of reporting default to NeSL-IU. Scenario 3 - The e-mail id of Debtor furnished by Creditor in Form C may not be a valid one (or) NeSL-IU is not able to reach the Debtor by e-mail for any reason, in delivering the information of default: (a)On noticing that e-mail attempt to reach the Debtor has failed, NeSL sends the Authentication Invitation Request Letter to the postal address of the Debtor by India Posts " Registered Post Acknowledgement due". (b)In case the Debtor does not respond, NeSL reminds the Debtor 3 times by way of reminders letter/s sent by India Posts, by allowing 3 days each time for the Debtor to respond. (c)If the Debtor does not respond, in authenticating the information of default, in spite of all the 4 letters sent as above, after allowing 3 day's time, after th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for the Financial Creditor has argued that the judgment in the case of Ramesh Kymal (Supra) is altogether on different facts and the interim order passed by this Tribunal cannot be treated as a precedent. 24. We have heard Counsel for the parties. 25. From the resume of the facts and the respective contentions, the issue arises for our consideration is as to whether the date of default once mentioned in Part- IV by the Financial Creditor can be changed in view of a decision of the Hon'ble Supreme Court in the case of Ramesh Kymal (Supra) and as to whether the Financial Creditor (Bank) who has already furnished ROD can change the date of default by a subsequent ROD on the basis of circular dated 03.04.2023 issued by the NCLT. 26. Since, we have found that there are arguable points involved in this appeal, therefore, we issue a formal notice to the Respondents who is already on caveat, enabling it to file its reply. 27. Let the reply be filed within two weeks i.e. up to 25th August, 2023 and rejoinder, if any, be filed by the Appellant within two weeks thereafter i.e up to 14th September, 2023. List for hearing on 20th September, 2023. In the meanwhile, till the next date of h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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