The court established the date of default in insolvency proceedings as critical, affirming that defaults occurring during the exclusion period under Section 10A of the IBC bar any initiation of corporate insolvency resolution process.

ORDER

Per : Manoj Kumar Dubey, Member (Technical)

1. The present petition is filed on 30.08.2022, under section 7 of the Insolvency and Bankruptcy Code, 2016 (for brevity ‘IBC’/Code), r/w. Rule 4 of the I&B (Application to Adjudicating Authority) Rules 2016, by Piramal Capital and Housing Finance Limited inter alia seeking to initiate Corporate Insolvency Resolution Process in respect of Marvel Infrabuild Private Limited (for brevity ‘Corporate Debtor/Respondent’).

2. However, I.A No. 360 of 2023 was filed on 07.03.2023 by Omkara Assets Reconstruction Private Limited seeking substitution of Piramal Capital and Housing Finance Limited with Omkara ARC and the Tribunal vide order dated 03.07.2023 allowed the I.A by substituting the name of ‘Piramal Capital and Housing Finance Ltd’ ( for brevity ‘erstwhile Financial Creditor’ )with ‘Omkara Assets Reconstruction Pvt. Ltd’ (for brevity ‘Applicant/Financial Creditor’) as the Financial Creditor of the Present Company Petition.

3. The facts of the case are discussed below:

a. The present application has been filed by the erstwhile Financial Creditor against the Corporate Debtor in respect of the default amount of Rs. 36,63,13,482/- (Rupees Thirty-Six Crores, Sixty-Three Lakhs, Thirteen Thousand, Four Hundred and Eighty-Two Only) as on 14.07.2022 together with the applicable interest, penal interest, charges.

b. It is submitted that Debt towards a project loan aggregating to INR 65,00,00,000/- (Rupees Sixty-Five Crores Only) was sanctioned by DHFL in favour of the Corporate Debtor. Sanction Letter dated 22.05.2017 was addressed by DHFL in favour of the Corporate Debtor wherein the total principal amount OF Rs. 65,00,00,000/- was sanctioned by the Financial Creditor and further Loan agreement dated 26.05.2017 was executed between DHFL and the Corporate Debtor.

c. Further, in terms of the sanction letter and the Loan agreement, the erstwhile Financial Creditor, sanctioned financial assistance up to Rs. 65,00,00,000/- as per the terms and conditions set forth in the Loan Agreement and the ancillary documents executed. Pursuant to the loan agreement the amount was disbursed in the following manner:

d. Subsequent to the disbursement of loan amount by the erstwhile Financial Creditor, the Corporate Debtor failed to adhere to the terms of the Loan Agreement and defaulted in making repayments. Thereafter, the Financial Creditor addressed a Demand Notice dated 29.06.2021 to the Corporate Debtor and the Personal Guarantors calling upon them to repay the outstanding amount of Rs. 30,88,46,973/- as on 11.06.2021 together with other charges and interest accured till the date of the Loan closure within 7 (seven) days from the receipt of the Demand Notice.

e. It is submitted that despite receipt of the demand notice, the Corporate Debtor failed to repay the outstanding amounts and thus the date of default is 08.07.2021 i.e., expiry date of Demand Notice period of 7 days from the receipt of notice. It is clarified by the Applicant that the date of default as per NeSL Report is 15.09.2020, however last part payment was received until 02.02.2021.

f. It is submitted that Post receipt of the Legal Notice dated 29.06.2021, the Corporate Debtor has neither made any payment nor has disputed its liabilities pursuant to the Legal Notice.

4. The Learned Counsel for the Respondent filed its objection stating as under:

a. It is submitted that the Corporate Debtor entered into a Loan Agr