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Judgment
Abni Ranjan Kumar Sinha, Member (Judicial)
The present application is filed under Section 9 of Insolvency 86 Bankruptcy Code, 2016 for initiation of the Corporate Insolvency Resolution Process against the Corporate Debtor i.e. Unipower Projects Private Limited.
We have heard the Ld. Counsel for the applicant on the point of issuance of notice to the respondent.
Ld. Counsel for the applicant, in the course of arguments submitted that the present application is maintainable and well within the period of limitation.
He further submitted that the Notification dated 24.03.2020 in respect of enhancement of minimum threshold from Rs. 1 lakh to Rs. 1 crore is not applicable in this case on the ground that default has occurred prior to the issuance of the notification.
He further submitted that so far as the limitation is concerned, the Hon'ble Supreme Court in Suo Moto matter, excluded the period of limitation commencing since 23.03.2020.
In the light of the submissions, we have perused the averments made in the application. We observe that in Part-IV of the application, the total amount of default mentioned is of Rs. 3,00,438/- and the date of default are of 17.07.2018 for the site Sector-48, Gurgaon and 04.09.2018 for site Emerald Plaza, Sector-65 Gurgaon.
Now coming to the first point, whether the application is maintainable in terms of the Notification dated 24.03.2020, by which the minimum threshold has been enhanced from Rs. 1 lakh to Rs. 1 Crore by making amendment in Section 4 of IBC, 2016
Before considering the prayer, we would like to refer to the decision of Hon'ble NCLAT in the Company Appeal (AT) (Insolvency) No. 813 of 2021 in the matter of Jumbo Paper Products Vs. Hansraj Agrofresh Pvt. Ltd. The scanned copy of relevant portion (paragraph 10) of the decision is reproduced below:-
The other judgments cited by learned Counsel for Appellant broadly liy down that any statute/law can be applied retrospectively only if explicit orovision regardinu its retrospective application is made in the statute. It is seen that notification dated 24.3.2020 (supra) makes it unambiguously clear that the threshold limit to be considered for section 9 application will be Rs. 1 crore. This threshold limit will be applicable for application filed u/s 7 or 9 on or after 24_3.3020 even if debt is of a date earlier than 24.3.2020. Since the application under section 9 which is the subject m atter of this appeal was filed on 13.9.2020, therefore the threshold limit of Rs. 1 crore of debt will be applicable in the present case.
When we consider the case in hand, in the light of the decision referred to Supra, we are of the considered view, the present application is filed on 11.09.2021, much after the issuance of the notification. Of course, the date of default mentioned in Part-IV of the application, according to the applicant, is prior to the issuance of the notification, i.e relates to the month of September 2018.
In course of hearing, Ld. Counsel for the applicant has placed reliance upon the decision of this Bench in Company Petition No. IB/340/ ND/2021. In view of the decision of Hon'ble NCLAT referred to Supra, the earlier decision of this bench on this issue is not applicable.
Hence, we hold, since vide Notification dated 24.03.2020 the minimum threshold for initiation of CIRP as per Section 4 of IBC is Rs. 1 crore, and the defaulted amount as per Part-IV of the application is of only Rs. 3,00,438 / -, therefore, the application does not fulfil the minimum threshold limit to trigger the Corporate Insolvency Resolution Process. Hence, in our considered view the present application is not maintainable in terms of Section 4 of IBC. Therefore, it is needless to consider the issue of limitation.
Accordingly, the present application stands dismissed.