2019 (11) TMI 1401 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - scope of time limitation as per explanation (a) of Section 18 of Limitation Act, 1963 - HELD THAT - The explanation (a) of Sec. 18 of Limitation Act, 1963 is wide in scope and has to be interpreted in the background of the current commercial environment and in accordance with the nature of proceedings of Insolvency Bankruptcy Code, 2016 - In this chain, lastly a proposal by way of application under Sec.391 of the Companies Act, 1956 has also been made on 26/4/2016. Hence, if counted from this date, the petition filed under section is also not barred by limitation. We are further of the view of such claims/ proposals also amount to enforceable promise under Sec.25(3) of Indian Contract Act, 1872. Hence, for this reason also neither the claim nor application filed under section is barred by limitation. We are further of the view that in the present case continuous cause of action exists. Accordingly, we reject this claim of the corporate debtor. Non-enforceability of this petition because of reference of winding up being made by BIFR and which is pending for consideration of Hon ble High Court, Calcutta - HELD THAT - It is noted that no order of the Hon ble High Court has been brought on record to show that winding up order has actually been passed before filing of petition under Sec. 7 of Insolvency Bankruptcy Code, 2016. It is now a settled proposition that mere pendency of a proceedings of win g up before any High Court would not preclude/prevent a creditor to file a petition under Sec. 7 of Insolvency Bankruptcy Code, 2016, hence, this contention of the corporate debtor is also rejected as provision of Sec. 11 (d) of Insolvency Bankruptcy Code, 2016 do not come into play in the present case. The application filed by the Financial Creditor under section 7 of the Insolvency Bankruptcy Code, 2016 for initiating Corporate Insolvency Resolution Process against the Corporate Debtor, Ispat Profiles India Limited is hereby admitted - Moratorium declared.

Summary

Issues Involved:
1. Initiation of Corporate Insolvency Resolution Process (CIRP) under Section 7 of the Insolvency and Bankruptcy Code, 2016.
2. Determination of the date of default and whether the debt is barred by limitation.
3. Validity of the acknowledgment of debt and its impact on the limitation period.
4. Effect of pending winding-up proceedings on the maintainability of the CIRP application.
5. Completeness and defectiveness of the application under Section 7 of the Insolvency and Bankruptcy Code, 2016.

Detailed Analysis:

1. Initiation of Corporate Insolvency Resolution Process (CIRP) under Section 7 of the Insolvency and Bankruptcy Code, 2016:
The financial creditor, Stressed Assets Stabilization Fund, filed an application under Section 7 of the Insolvency and Bankruptcy Code, 2016, to initiate CIRP against the corporate debtor, Ispat Profiles India Limited, for a default amounting to ?29524031704/- plus interest. The Tribunal admitted the application and declared a moratorium in accordance with Sections 13 and 15 of the IBC, 2016.

2. Determination of the date of default and whether the debt is barred by limitation:
The financial creditor argued that the date of default was 31/3/2004 when the account was classified as NPA. The corporate debtor contended that the debt became time-barred before the filing of the reference under SICA. However, the Tribunal noted continuous acknowledgment of liability by the corporate debtor through revival proposals, balance sheet presentations, and letters to lenders, which constituted an acknowledgment of debt under Section 18 of the Limitation Act, 1963. Therefore, the debt was not barred by limitation.

3. Validity of the acknowledgment of debt and its impact on the limitation period:
The Tribunal emphasized that various acknowledgments of debt by the corporate debtor, including revival proposals and balance sheet entries, extended the limitation period. The Tribunal referred to several judicial decisions, including Hari Omm Transport vs. MSP Metallics Ltd., Trinetra Electronics Limited vs. McNally Bharat Engineering Co. Limited, and Asset Reconstruction Company (India) Ltd. vs. Dagcon (India) Private Limited, which supported the view that acknowledgment of debt in balance sheets and other communications constituted a fresh cause of action, extending the limitation period.

4. Effect of pending winding-up proceedings on the maintainability of the CIRP application:
The corporate debtor argued that the pending winding-up proceedings before the High Court precluded the CIRP application. However, the Tribunal held that mere pendency of winding-up proceedings did not prevent the filing of a CIRP application under Section 7 of the IBC, 2016. The Tribunal cited the decision of the Hon’ble Supreme Court in Jaipur Metals and Electricals Employees Organisation vs. Jaipur Metals and Electricals Limited, which supported this view.

5. Completeness and defectiveness of the application under Section 7 of the Insolvency and Bankruptcy Code, 2016:
The corporate debtor claimed that the application was defective as it did not mention the date of default in Part IV of Form 1. The Tribunal found that the particulars of default were provided in Annexures G and H of the Paper Book, thus rejecting this contention. The Tribunal also noted that the letter of authorization for the applicant was enclosed, and procedural technicalities should not be given undue weightage in economic legislation.

Conclusion:
The Tribunal admitted the application under Section 7 of the Insolvency and Bankruptcy Code, 2016, for initiating CIRP against the corporate debtor. A moratorium was declared, and an Interim Resolution Professional (IRP) was appointed. The Tribunal directed the financial creditor to pay an advance fee to the IRP and instructed the IRP to conduct the CIRP in a time-bound manner as per the regulations. The matter was listed for filing a progress report on 14/1/2020.