RAMESH KYMAL versus M/S SIEMENS GAMESA RENEWABLE POWER PVT. LTD.

RAMESH KYMAL versus M/S SIEMENS GAMESA RENEWABLE POWER PVT. LTD.

Section 10A bars the filing of any application for initiation of the Corporate Insolvency Resolution Process in respect of defaults occurring on or after 25 March 2020 for a period of six months (extendable up to one year as notified); this embargo applies to applications filed before the insertion of Section 10A where the default occurred on or after 25 March 2020, and the date of default as disclosed in the demand notice cannot be re-characterised contrary to the notice. The distinction between 'initiation date' and 'insolvency commencement date' supports that the statutory bar operates on initiation/filing.

Parties
Appellant; Operational Creditor: Ramesh Kymal; Respondent; Corporate Debtor: M/s Siemens Gamesa Renewable Power Pvt. Ltd.
Jurisdiction
India
Judgment Date
09 February 2021
Procedural Posture
Civil Appeal (civil Appeal No. 4050 of 2020) Under Section 62 of the Insolvency and Bankruptcy Code, 2016 / Appeal From National Company Law Appellate Tribunal Judgment and Order Dated 19.10.2020 Affirming NCLT Order Dated 9.7.2020
Outcome
Appeal dismissed; NCLAT judgment affirmed
Legal Topics
Section 10 a IBC, Section 9 IBC (operational Creditor), Retrospective Application of Statute, Date of Default, Initiation Date Vs Insolvency Commencement Date, COVID 19 Lockdown Impact on Insolvency
Insolvency and Bankruptcy Law Statutory Interpretation Corporate Law Section 10 a IBC Section 9 IBC (operational Creditor) Retrospective Application of Statute Date of Default Initiation Date Vs Insolvency Commencement Date +1 more

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Parties

Ramesh Kymal

Appellant; Operational Creditor

M/s Siemens Gamesa Renewable Power Pvt. Ltd.

Respondent; Corporate Debtor

Procedural Posture

Civil Appeal (civil Appeal No. 4050 of 2020) Under Section 62 of the Insolvency and Bankruptcy Code, 2016 / Appeal From National Company Law Appellate Tribunal Judgment and Order Dated 19.10.2020 Affirming NCLT Order Dated 9.7.2020

Legal Issues

  1. 1 Whether Section 10A of the IBC applies to an application under Section 9 filed before 5 June 2020 in respect of a default occurring on or after 25 March 2020
  2. 2 Whether the date of default as stated in the demand notice can be set back to earlier dates contrary to the notice
  3. 3 Whether Section 10A is to be given prospective or retrospective effect and how expressions like "shall be filed" and "from such date" are to be construed

Ratio Decidendi

Section 10A bars the filing of any application for initiation of the Corporate Insolvency Resolution Process in respect of defaults occurring on or after 25 March 2020 for a period of six months (extendable up to one year as notified); this embargo applies to applications filed before the insertion of Section 10A where the default occurred on or after 25 March 2020, and the date of default as disclosed in the demand notice cannot be re-characterised contrary to the notice. The distinction between 'initiation date' and 'insolvency commencement date' supports that the statutory bar operates on initiation/filing.

Court Disposition

Appeal dismissed; NCLAT judgment affirmed

Orders

  • Appeal dismissed.
  • Conclusion of the National Company Law Appellate Tribunal dated 19.10.2020 affirmed.