2019 (8) TMI 1599 - AT - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - Financial Creditor or not - time limitation - HELD THAT - As the present case has admittedly the right to apply accrued to the appellant (financial creditor) since December 1 2016 i. e. the date when I and B Code came into force the application under section 7 of the I and B Code is well within the time and maintainable. The corporate debtor while borrowing the amount also mortgaged its immovable property on March 10 2005. The corporate guarantee/personal guarantee was also given by the corporate debtor on March 5 2005 - it is clear that there is a continuous cause of action. Further we find that the corporate debtor by its letter dated June 23 2016 also requested the financial creditor to accept one-time settlement. Thus the claim of the respondent (financial creditor) was not barred by limitation. Further there being mortgaged property the period of limitation to enforce payment of money secured will be 12 years when money sued for becomes due. For the reason aforesaid the claim of the financial creditor is not barred by limitation. Appeal disposed off

Summary

Issues:
1. Applicability of limitation period under section 7 of the Insolvency and Bankruptcy Code, 2016.
2. Completeness of the application under section 7.
3. Admissibility of the claim of the financial creditor.
4. Barred by limitation for the financial creditor's claim.
5. Request for settlement and negotiation by the appellant.
6. Benefit of section 12A of the Insolvency and Bankruptcy Code.

Analysis:

Issue 1: Applicability of limitation period under section 7 of the Insolvency and Bankruptcy Code, 2016
The appellant contended that the application under section 7 of the Insolvency and Bankruptcy Code was time-barred. However, the Tribunal held that the right to apply accrued to the appellant since December 1, 2016, when the Code came into force. Therefore, the application was deemed to be within the time and maintainable.

Issue 2: Completeness of the application under section 7
The appellant raised concerns about the completeness of the application under section 7, citing the lack of appointment of an interim resolution professional. The appellant argued that the application was incomplete. However, the Tribunal did not find merit in this argument and proceeded with the case.

Issue 3: Admissibility of the claim of the financial creditor
The Tribunal noted that the corporate debtor had admitted the debt through various communications proposing settlements and mortgaging properties. The continuous cause of action was evident, and the Tribunal found the claim of the financial creditor to be admissible.

Issue 4: Barred by limitation for the financial creditor's claim
Considering the actions and communications of the corporate debtor, including requests for settlements and mortgage of properties, the Tribunal concluded that the claim of the financial creditor was not barred by limitation. The Tribunal highlighted the 12-year limitation period for enforcing payment of money secured by mortgaged property.

Issue 5: Request for settlement and negotiation by the appellant
The appellant had sought time for negotiation and settlement with the financial creditor, but no settlement was reached. The Tribunal, however, did not find sufficient grounds to keep the appeal pending solely based on ongoing negotiations.

Issue 6: Benefit of section 12A of the Insolvency and Bankruptcy Code
In the given circumstances, the Tribunal decided not to interfere with the impugned order and allowed the appellant to take benefit of section 12A of the Insolvency and Bankruptcy Code. The interim order was vacated, and the appeal was disposed of without costs.

This comprehensive analysis covers the key issues addressed in the judgment by the National Company Law Appellate Tribunal, New Delhi, providing a detailed overview of the legal considerations and decisions made in the case.