Tribunal says petition was defective for including Section 10A-protected invoices and an unsupported interest claim; creditor’s refusal to amend Form 5 proved fatal.
Mumbai, Sept. 24, 2026: The National Company Law Tribunal (NCLT), Mumbai Bench, has dismissed a Section 9 insolvency petition filed by Alliance Advertising and Marketing Pvt. Ltd. against Eduisfun Technologies Pvt. Ltd., holding that the application was not maintainable in its present form.
The Bench of Mr. Nilesh Sharma, Member (Judicial), and Mr. Sameer Kakar, Member (Technical), found that the operational creditor had filed a composite claim covering 38 invoices, some of which related to the protected period under Section 10A of the Insolvency and Bankruptcy Code, 2016. The Tribunal noted that defaults arising on or after March 25, 2020, during the COVID-19 suspension window, cannot form the basis of a CIRP initiation petition.
According to the Tribunal, Alliance Advertising’s claim also included a substantial interest component of about Rs. 2.80 crore, calculated at 3% per month on the strength of a stipulation printed on invoices. However, the underlying agreement between the parties did not contain any clause for interest, and the creditor failed to show any basis for treating the invoice term as binding. The Tribunal observed that such a large interest claim could not be presumed and required proper adjudication.
The Bench further held that later balance confirmations issued by the corporate debtor in 2021, 2022 and 2023 could not revive defaults that were already hit by Section 10A. The statutory bar, the Tribunal said, is absolute and cannot be overcome by subsequent acknowledgments or continued non-payment.
A key factor in the dismissal was the creditor’s refusal to amend Form 5 despite being specifically given an opportunity by the Tribunal to exclude Section 10A-hit invoices and clarify the interest claim. The NCLT said it could not itself reconstruct the case, segregate invoices, determine separate dates of default, or recalculate the debt on behalf of the petitioner.
Relying on the Supreme Court’s ruling in Ramesh Kymal v. Siemens Gamesa Renewable Power Pvt. Ltd., the Tribunal reiterated that no insolvency application can be filed for defaults covered by Section 10A. Since the petition mixed barred and unbarred claims without proper segregation, it was dismissed as not maintainable.
Bottom Line :
Insolvency and Bankruptcy Code, 2016 - Section 9 petition held not maintainable where operational creditor presented a composite claim including invoices/defaults falling within the protected period under Section 10A and a substantial interest claim based only on invoice stipulation though the underlying agreement contained no interest clause - Subsequent balance confirmations cannot revive or shift defaults hit by Section 10A - Adjudicating Authority cannot reconstruct the creditor's case when creditor declined opportunity to amend Form 5.
Statutory provision(s): Section 9, Section 10A, Section 5(21) of the Insolvency and Bankruptcy Code, 2016
