Ms. Sangita Arora . Versus IFCI Limited CA AT 1102 of 2024
Facts:
1) IFCI advanced a Rupee Term Loan of Rs.150 crores and a Corporate Loan of Rs.100 crores to the Corporate Debtor. The Appellant executed Deed of Personal Guarantees in favour of the IFCI securing of Rupee Term Loan of the Corporate Debtor, Supertech Limited. (ii) Supertech Limited committed default in payment of loan, IFCI recalled both the loans and both the Personal Guarantees issued by the Appellant and Demand Notice was issued.
2) Application under Section 95 was filed by IFCI on 02.06.2021 for initiating CIRP against the Appellant. (iv) Another Financial Creditor, i.e., PNB Housing Finance Ltd. (“PNBHFL”) filed Application under Section 95 on 24.07.2021, which, was registered on 02.08.2021. However, no order has yet been passed in the Application filed by PNBHFL. The Appellant aggrieved by the order dated 01.05.2024 has filed this Appeal.
Issue: Whether the appeal can be allowed ?
Arguments:
Appellant:
1) Counsel submitted an Application was filed by PNBHFL against the Personal Guarantor, which was registered on 02.08.2021 and when the Application of the PNBHFL was registered on 02.08.2021, the Application was complete and interim moratorium was enforced on the Application filed by PNBHFL, hence, no order could have been passed by the Adjudicating Authority in the Application filed by IFCI.
2) It is submitted that after interim moratorium is triggered, there is prohibition from initiating any proceedings against the Personal Guarantor by any of its creditors. It is submitted that the order passed by Adjudicating Authority, impugned in the Appeal is without jurisdiction. It is submitted that mere filing of the Application does not make the Application complete, unless it is defect free and registered by the Adjudicating Authority.
Respondent:
1) Counsel submitted that Application filed by IFCI was prior in time to the Application filed by PNBHFL. The Appellant e-filed the Application on 02.06.2021, which e-filing was complete and e-filing number itself was generated on 02.06.2021. The Application was, however, registered on 09.08.2021 and the Application by PNBHFL was filed subsequently on 24.07.2021 and was registered on 02.08.2021. It is submitted that moratorium under Section 96 shall commence immediately after filing of the Application. The filing of the Application contemplated under the NCLT Rules 2016 is the date of e-filing and moratorium shall not be suspended till the Application is registered and numbered.
Decision: NCLAT dismissed the appeal.
Rationale:
1) It relied on judgment of three Member Bench of Tribunal in Krishan Kumar Basia’s wherein it held that Adjudicating Authority that filing of the Application under Section 95 by the State Bank of India is on the date when the Application was filed and the date shall not be the date when the Application is numbered.
2) It held that filing of the Application by IFCI, was prior in time and the mere fact that Application filed by PNBHFL was registered earlier is inconsequential and moratorium shall commence on filing of the Application by IFCI. It is further to be noticed that present is not a case that any skelton Application was filed by IFCI. The date of filing the Application has to be determined as per statutory Rules governing for filing of Application under Section 95.
Order:
