ORDER

1. The present application has been filed by Sumer Buildcorp Private Limited (“the Applicant/ Corporate Debtor”) under 60(5) of the Insolvency and Bankruptcy Code, 2016 (“IBC/the Code”), seeking dismissal of C.P.(IB)/136/MB/2022 (“main Petition”) on the ground of non-maintainability in terms of section 10A of IBC.

2. Since the primary ground canvassed by the Applicant pertains to non-maintainability of the main petition on the basis of section 10A of IBC, this Tribunal proposes to deal only with the said issue in the present order.

Brief relevant Facts and Submissions of the Applicant :

3. Omkara Asset Reconstruction Pvt Ltd (“The Petitioner/Financial Creditor”) has instituted the main Petition based on the following purported Corporate Guarantees: a) Corporate Guarantee dated 30.07.2018 executed in pursuance of a Sanction Letter dated 27.07.2018 and a Loan Agreement dated 30.07.2018 sanctioning a Mortgage Loan for an amount of Rs.1100 Crores to Radius Estate Project Pvt. Ltd (REPPL). b) Corporate Guarantee dated 30.07.2018 executed in pursuance of a Sanction Letter dated 27.07.2018 and a Loan Agreement dated 30.07.2018 sanctioning a Mortgage Loan for an amount of Rs. 439.25 Crores to Sumer Radius Realty Pvt. Ltd (SRRPL).

4. The Learned Counsel for the Applicant, Mr. Feroze Patel has submitted that the main Petition filed is in express contravention of the provisions of the Code including Section 10A and that the Financial Creditor has at Sr. No. 2, Part IV of Form 1 at Pgs. 5 to 7 of the present Petition interalia mentioned that owing to the alleged default by REPPL and SRPPL (“the Principal Borrowers”), it had issued the Invocation Notices dated 10.02.2021 and 16.02.2021 calling upon the Respondent to make payment within 15 days. Further as per the main petition, the purported defaults took place after the lapse of 15 days of the Invocation Notices. Therefore, the alleged lapses would have taken place on 25.02.2021 and 03.03.2021. The Applicant submits that Section 10A of the Code suspended initiation of CIRP for defaults arising between 25.03.2020 and 24.03.2021, and expressly bars the filing of any application in respect of such defaults. The suspension period concluded on 24.03.2021. As per the Financial Creditor’s own case, default occurred on 25.02.2021 and 03.03.2021, falling squarely within the ambit of Section 10A of the Code.

5. The Ld. Counsel submits that the Hon'ble Supreme Court has in Ramesh Kymal v/s Siemens Gamesa Renewable Power Pvt. Ltd., (2021) 3 SCC 224, inter alia held that the expression "shall ever be filed" is a clear indicator that the intent of the legislature is to bar the institution of any application for commencement of CIRP for the period of upto 1 year.

6. The Ld. Counsel for the Applicant states that the Financial Creditor, having expressly stated that the defaults occurred on 25.02.2021 and 03.03.2021 (i.e., upon expiry of 15 days from the invocation notices), is bound by such disclosure and cannot retrospectively alter the date of default. In Ramesh Kymal (supra), the Hon’ble Supreme Court held that any attempt to shift the date of default contrary to the demand notice under Sections 8(1) and 9 of the Code is impermissible, as the demand notice triggers subsequent CIRP proceedings.

7. It is also submitted that this position has been consistently affirmed in Archana Deepak Wani v. Indian Bank &Ors. and J.C. Flowers Asset Reconstruction Pvt. Ltd. v. Deserve Exim Pvt. Ltd., Company Appeal (AT) (Insolvency) No.486 of 2023 wherein it was held that although a guarantor becomes liable upon the principal borrower’s default, enforcement against the guarantor requires a prior demand, and the date of default for the guarantor cannot relate back to the borrower’s default.

In the present case, the corporate guarantees are on-demand guarantees, and default, by the Financial Creditor’s own case, arose only upon non- payment within 15 days of invocation—squarely within the period covered by Section 10A of the