2018 (12) TMI 1847 - AT - Insolvency and Bankruptcy

Disqualification of Corporate Debtor to file an application under Section 7 or 9 to initiate Corporate Insolvency Resolution Process against its own debtor - HELD THAT - Taking into consideration the fact that 270 days has already over and further time of 90 days under Section 55 of I B Code is also over and as the moratorium period has come to an end, we are not inclined to deliver on the claim of S. N. Plumbing Pvt. Ltd. qua IL FS Engineering and Construction Company Ltd. If S. N. Plumbing Pvt. Ltd. initiates proceeding under Section 7 or Section 9 against IL FS Engineering and Construction Company Ltd., in such case, the Adjudicating Authority will decide the question uninfluenced by the observations made in the impugned order. If M/s Mandhana Industries Ltd. through its present proprietor files any application under Section 7 or Section 9 of the I B Code against M/s Instyle Exports Pvt. Ltd., the Adjudicating Authority will decide the matter uninfluenced by the observations made in the impugned order. Appeal disposed off.

Summary

Issues involved:
1. Interpretation of Section 11 of the Insolvency and Bankruptcy Code, 2016 regarding the disqualification of a Corporate Debtor from filing an application to initiate Corporate Insolvency Resolution Process (CIRP) against its debtor.
2. Whether a Corporate Debtor represented by a Resolution Professional can file an application under Section 7 or 9 to initiate CIRP against its own debtor.
3. The eligibility of a Corporate Debtor to trigger CIRP against another party after the completion of the resolution process and the moratorium period.

Analysis:
1. The judgment addresses the interpretation of Section 11 of the Insolvency and Bankruptcy Code, 2016, which disqualifies a Corporate Debtor undergoing CIRP from filing an application to initiate CIRP against its debtor. The Tribunal emphasized that the objective of CIRP is to revive the company and not involve it in multiple litigations. While Section 14 does not bar suits by the Corporate Debtor, the Resolution Professional must not initiate proceedings to recover debts during CIRP. The Tribunal held that a Corporate Debtor undergoing CIRP is not entitled to file a petition against its debtor based on Section 11 of the Code.

2. The judgment also discusses whether a Corporate Debtor, represented by a Resolution Professional, can file an application under Section 7 or 9 to initiate CIRP against its debtor. The Appellant argued that Section 11 applies only to the initiation of CIRP against the Corporate Debtor itself and not against a third-party debtor of the Corporate Debtor. The Tribunal acknowledged this argument and clarified that Section 11 does not disqualify a Corporate Debtor from filing an application against its debtor, provided the Corporate Debtor is not the subject of the CIRP.

3. Furthermore, the judgment deliberates on the eligibility of a Corporate Debtor to trigger CIRP against another party after the resolution process and moratorium period have ended. The Tribunal noted that a prima facie case was made by the Resolution Professional regarding the right to trigger CIRP against another party. However, considering the completion of the 270-day period and the end of the moratorium, the Tribunal did not entertain the claim. It was decided that if the party initiates proceedings under Section 7 or 9 against the other party, the Adjudicating Authority will decide the matter independently, unaffected by previous observations. The judgment provides clarity on the eligibility of Corporate Debtors to file applications under Section 7 or 9 against their respective debtors post-resolution process, emphasizing the need for a case-specific determination in such scenarios.