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

Citation: [2021] 3 S.C.R. 983 · Decided: 09-02-2021 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Dismissed

cites 1 · see the full citation network in Lexace

Judgment (excerpt)

A
B
C
D
E
F
G
H
983
RAMESH KYMAL
v.
M/S SIEMENS GAMESA RENEWABLE POWER PVT. LTD.
(Civil Appeal No. 4050 of 2020)
FEBRUARY 09, 2021
[DR DHANANJAYA Y. CHANDRACHUD AND
M. R. SHAH, JJ.]
Insolvency and Bankruptcy Code, 2016 – Embargo in s.10A
– Applicability of – Application u/s.9 filed before 05 June 2020, in
respect of a default which had occurred after 25 March 2020 –
Maintainability of, in view of insertion of s.10A(inserted by Act 17
of 2020) with retrospective effect from 05 June 2020 – Application
held not maintainable by NCLT – Decision affirmed by NCLAT –
On appeal, held:Language of the provision is not always decisive
of its prospective or retrospective application rather its object must
also be taken into account – Expression “from such date” in s.10A
evidently refers to 25 March 2020 which was consciously provided
by the legislature since it coincides with the date on which the
national lockdown was declared due to the onset of the Covid-19
pandemic – Substantive part of s.10A is to be construed
harmoniously with the first proviso and the explanation – Expression
“shall ever be filed” in the proviso is a clear indicator that the
intent of the legislature is to bar the institution of any application
for the commencement of the Corporate Insolvency Resolution
Process (CIRP) in respect of a default which has occurred on or
after 25 March 2020 for a period of six months, extendable up to
one year as notified – Conclusion of NCLAT affirmed – Interpretation
of Statutes – Harmonious, Purposive Construction.
Insolvency and Bankruptcy Code, 2016 – s.10A – Object of
– Discussed.
Insolvency and Bankruptcy Code, 2016 – ss.5(11), (12), 7(6),
8, 9(6), 10(5) – Difference between “initiation date” and
“insolvency commencement date” – Discussed.
Insolvency and Bankruptcy Code, 2016 – ss.8(1), 9 – Date
of default –Attempt to set back the date of default from 30 April
2020 to either 21 January 2020 or 23 March 2020 –
[2021] 3 S.C.R. 983
983
A
B
C
D
E
F
G
H
984
SUPREME COURT REPORTS
[2021] 3 S.C.R.
Held:Untenable, as it is contrary to the disclosure made by the
appellant in the demand notice issued in pursuance of the provisions
of s.8(1) and s.9 –Insolvency and Bankruptcy (Application to
Adjudicating Authority) Rules, 2016 – r.5.
Words & Phrases:
“shall be filed” in first proviso to s.10A–Plea of the appellant
is that the said expression indicates prospective nature of the
provision so as to apply only to the applications filed after 05 June
2020, the date on which the provision was inserted– Held: Rejected–
Insolvency and Bankruptcy Code, 2016 – s.10A.
“from such date” in s.10A –Intention of Legislature –
Discussed – Insolvency and Bankruptcy Code, 2016 – s.10A.
Dismissing the appeal, the Court
HELD: 1.1 The attempt to set back the date of default to
either 21 January 2020 or 23 March 2020 is plainly untenable for
the reason that it is contrary to the disclosure made by the
appellant in the demand notice which has been issued in
pursuance of the provisions of Section 8(1) and Section 9 of the
IBC.[Para 10][990-F-G]
1.2 The financial distress caused by the outbreak of Covid-
19 provides the backdrop to the insertion of Section 10A. The
underlying rationale for the insertion of Section 10A has been
explained in the recitals to the Ordinance. Section 10A is prefaced
with a non-obstante provision which has the effect of overriding
Sections 7, 9 and 10. The proviso to Section 10A stipulates that
“no application shall ever be filed” for the initiation of the CIRP
of a corporate debtor “for the said default occurring during the
said period”. The explanation which has been inserted for the
removal of doubts clarifies that Section 10A shall not apply to any
default which has been committed under Sections 7, 9 and 10
before 25 March 2020.Section 10A makes a reference to the
initiation of the CIRP.  Clauses (11) and (12) of Section 5 of the
IBC define two distinct concepts. Section 5(11) stipulates that
the date on which a financial creditor, corporate applicant or
operational creditor makes an application to the adjudicating
authority for initiating the CIRP is the “initiation date”.
Distinguished from this is the “insolvency commencement date”,
A
B
C
D
E
F
G
H
985
which is the date on which the application for initiating the CIRP
under Sections 7, 9 or 10, as the case may be, is admitted by the
Adjudicating Authority.The substantive part of Section 10A
adverts to an application for the initiation of the CIRP. It stipulates
that for any 

Excerpt shown. Read the full judgment & AI analysis in Lexace.