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TMI Blog2023 (11) TMI 313X X X X Extracts X X X X X X X X Extracts X X X X ..... xcluded as per the provisions of Section 10A of the IBC, 2016, vide Order dated 17.01.2023 of the Adjudicating Authority. The Appellant herein had applied for rectification of the said Order vide filing dated 15.02.2023, which was partly allowed vide Order dated 21.03.2023. 2. The Learned Counsel for the Respondent have questioned the maintainability of the present Appeal on the grounds of period of Limitation under Section 61(2) of the IBC, 2016. The Respondents have submitted that the Appellant had not filed Appeal against the substantive Order dated 17.01.2023, the period of filing of Appeal for this Order expired on 16.02.2023 and the condonable period of 15 days expired on 03.03.2023 and therefore, the Appellant cannot challenge the findings rendered by the Learned Adjudicating Authority in the Order dated 17.01.2023. It is submitted that the present Appeal is filed only on 12.05.2023 and therefore the present Appeal is only against the Order dated 21.03.2023 which partly allowed and partly refusing to rectify the Order dated 17.01.2023. 3. The Appellant had submitted that the present Appeal is filed on 12.05.2023, which is within the period of 30 days form the date of Impug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rayer not being entertained by learned Adjudicating Authority. We accordingly, dismiss this Appeal with the aforesaid liberty. Learned Adjudicating Authority, National Company Law Tribunal, be informed of this order. It would advised to do well by first taking up the Applicant application for rectification before considering the application for passing of order of Liquidation." 4. We have considered the submissions made by both sides and we find that the Appellant herein had filed for rectification of Order dated 17.01.2023 on 15.02.2023 which is within 30 days of the said Order. The Order dated 17.01.2023 was partly rectified vide Order dated 21.03.2023 and, excluding the period taken for obtaining the certified copy, the Appeal has been filed within 30 days of the said Order. The Order dated 17.01.2023 has merged with the Order dated 21.03.2023 due to partial rectification. 5. Regarding exclusion of period taken for obtaining certified copy of the Order in computing the period, reference is invited to sub-Rule (2) of Rule 22 of the NCLAT Rules, 2016, regarding presentation of Appeal, which provides that every Appeal shall be accompanied by a certified copy of the Impugned O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereinafter called the `Principal Borrower') for development of a Project known as Bombay XI located at Mumbai vide Loan Agreement dated 12.10.2020, which was executed by and between the Appellant, the Principal Borrower and the Respondent/Tattva Mittal Lifespaces Private Limited (hereinafter referred to as the `Corporate Guarantor'). The Corporate Guarantor was signatory to the Loan Agreement and had given two cheques as security. As per Clause V of the Loan Agreement, the Principal Borrower was required to pay the loan amount between the period 15.02.2021 to 15.03.2021. On failure of the Principal Borrower to pay the loan amount as per repayment Plan, the loan facility was to be extended as per Clause VI of the Loan Agreement dated 12.10.2020, which states that in case of delay in repayment, the interest charges applicable will be 24% per month and further the Principal Borrower will provide security in the form of Residential Flat to the Appellant in the said Project Bombay XI. For the period from April, 2021 to December, 2021 the Principal Borrower failed to repay the loan amount and failed to provide the Residential Flat as security, leading to event of acceleration in terms o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Debtor had taken loan of Rs.1,50,00,000/- from the Appellant, Financial Creditor. Though the name of the Respondent/Corporate Guarantor is not included in the name of the parties listed on page 1 of the Agreement, as per Clause VI of the Agreement, the Corporate Guarantor M/s. Tattva Mittal Lifespaces Pvt. Ltd. has undertaken to act as a Guarantor towards loan. On page 4 of the Agreement, the Borrower is shown as the Corporate Debtor M/s. Tattva Properties LLP and Guarantor is shown as Tattva Mittal Lifespaces Pvt. Limited. Similarly, Schedule 1 & 2 on page 5 of the Agreement are signed by the Respondent Corporate Guarantor. Thus, it is clear that the Respondent Tattva Mittal Lifespaces Pvt. Ltd. has stood as a Guarantor to the loan taken by Tattva Properties LLP for which they have also issued two security cheques of Rs. 75,00,000/- each. As per certificate of the IDFC First Bank dated 19.01.2022, the cheques were not encashed due to insufficient funds. Vide Notice dated 31.01.2022 issued to both the Corporate Debtor and the Corporate Guarantor, the Appellant herein had brought to their Notice that the cheques have been dishonoured and had demanded the repayment from the Guarant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of 'Vikram Kumar Proprietor Vs. `Arcana (Mumbai) Private Limited' in Comp. App. (AT) (Ins.) No.836 of 2023, it was held that the date of default in the case of the Guarantor is the date on which the Guarantee was invoked. 14. By its action of depositing the security cheques and issue of Notice dated 31.01.2022, the Financial Creditor, the Appellant herein, is deemed to have invoked the Corporate Guarantee in the month of January, 2022, which is to be considered as the date of default, and which lies beyond the period prohibited under Section 10A of the IBC, 2016. In the light of the aforesaid detailed discussion, and relying on the Judgements of this Tribunal quoted supra, it is concluded that the date of default lies beyond the prohibited period prescribed under Section 10A of the IBC, 2016. The Adjudicating Authority is directed to hear and decide the Application of the Financial Creditor under Section 7 by treating it as a case not covered by the provisions of Section 10A of the IBC, 2016. Considering the loss of time, it is expected that the said Application will be decided by the Adjudicating Authority expeditiously. 15. With these directions Comp. App. (AT) (In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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