Barun Mitra ORDER
1. Heard learned counsel for the Appellant. This Appeal has been filed against order dated 10.02.2023 by which order the Adjudicating Authority has rejected the Section 7 application filed by the Financial Creditor on the ground that application is barred by Section 10A.
2. Learned counsel for the Appellant challenging the order contends that the Adjudicating Authority has not adverted to the terms and conditions of the Guarantee Deed before coming to the conclusion that application is barred by 10A. It is further submitted that date of default mentioned in the application was 01.08.2019 and 01.02.2019 which was prior to 10A period, hence, application under Section 7 ought not to have been rejected. It is further submitted that there were clauses of Guarantee Deed also including indemnity, which has not been adverted to. It is submitted that even after 10A period was over, no payments were made and default still continues by the Corporate Debtor.
3. We have considered the submissions of learned counsel for the Appellant and perused the record.
4. The Section 7 application, which was filed by the Financial Creditor has been brought on the record. In Part IV of the application following details have been given:
"Part IV
5. The Corporate Debtor-Deserve Exim Private Limited was the Corporate Guarantor to a loan sanctioned to two different Principal Borrowers i.e. Radius & Deserve Builders LLP and Raghuleela Builders Pvt. Ltd. For Radius & Deserve Builders, there was one disbursement and for Raghuleela Builders there were two disbursements. The Corporate Debtor stood Guarantor to the disbursement to both the Principal Borrowers. Default was committed by the Principal Borrowers on 01.08.2019 and 01.02.2019, respectively. The Financial Creditor chose to invoke corporate guarantee given by the Corporate Debtor on 07.08.2020 and 26.06.2020, which has been specifically mentioned in the Part IV of the application. The Adjudicating Authority took the view that since the bank guarantee against the Corporate Debtor were invoked on 07.08.2020 and 26.06.2020, which were within the period covered under Section 10A, the application is barred by 10A.
6. There is no dispute between the facts of the present case. Admittedly, the bank guarantee which was given by the Corporate Debtor was invoked on 07.08.2020 and 26.06.2020 which dates have been mentioned in Part IV. Whether the default on the part of the Corporate Debtor i.e. Corporate Guarantor can be on any date prior to when the guarantee w........