Rechtsanwalt Dr. Christian Bachmann Vs Coffee Day Global Limited (NCLT Bengaluru)
The National Company Law Tribunal (NCLT), Bengaluru Bench, allowed an application seeking amendment of the date of default in a pending petition under Section 9 of the Insolvency and Bankruptcy Code, 2016 (IBC) against Coffee Day Global Limited. The applicant sought permission to amend the date of default in Form-5 from 27.11.2020 to 30.09.2019, contending that the original date had been mentioned because the Vienna Commercial Court awarded interest from 27.11.2020, whereas the actual first default occurred when the Corporate Debtor stopped making payments after the last payment dated 28.08.2019 under a Letter of Comfort dated 02.05.2019. According to the applicant, the amendment was only clarificatory and did not introduce any new claim or cause of action, as the factual basis regarding cessation of payments after August 2019 was already part of the pleadings and supporting documents.
The respondent opposed the amendment, contending that it was an afterthought made only after the respondent pointed out that the originally pleaded date of default fell within the period covered by Section 10A of the IBC. It argued that the proposed amendment was an attempt to overcome the statutory bar under Section 10A. The respondent also submitted that the Record of Default obtained from NeSL continued to reflect 27.11.2020 as the date of default, that no documentary evidence established any payment obligation due on 30.09.2019, and that the amendment sought to introduce a fresh cause of action. Additional objections were raised regarding the enforceability of the Letter of Comfort, the foreign judgment of the Vienna Commercial Court, the authority of the applicant’s representatives, and the nature of the alleged operational debt.
