A default in financial debt has arisen on September 20, 2020. Can a petition be filed in May, 2023 for the same? Explain the legal provision with the help of decided case law.

CS Professional · Corporate Restructuring, Insolvency, Liquidation & Winding-up · PYQS · June 2023
A default in financial debt has arisen on September 20, 2020. Can a petition be filed in May, 2023 for the same? Explain the legal provision with the help of decided case law.

Answer & Explanation:

Section 10A of the Insolvency and Bankruptcy Code provides that notwithstanding anything contained in sections 7, 9 and 10, no application for initiation of corporate insolvency resolution process of a corporate debtor shall be filed, for any default arising on or after 25th March, 2020 for a period of six months or such further period, not exceeding one year from such date, as may be notified in this behalf: Provided that no application shall ever be filed for initiation of corporate insolvency resolution process of a corporate debtor for the said default occurring during the said period. Explanation. - For the removal of doubts, it is hereby clarified that the provisions of this section shall not apply to any default committed under the said sections before 25th March, 2020." In the case of Ramesh Kymal Vs. M/s Siemens Gamesa Renewable Power Pvt Ltd judgement dated February 9, 2021 Hon'ble Supreme Court observed that Section 10A does not contain any requirement that the Adjudicating Authority must launch into an enquiry into whether, and if so to what extent, the financial health of the corporate debtor was affected by the onset of the Covid-19 pandemic. Parliament has stepped in legislatively because of the wide spread distress caused by an unheralded public health crisis. It was cognizant of the fact that resolution applicants may not come forth to take up the process of the resolution of insolvencies which would lead to instances of the corporate debtors going under liquidation and no longer remaining a going concern.

Topics: Insolvency and Bankruptcy Code (IBC)

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