2020 (1) TMI 1388 - AT - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - barred by time limitation under Section 7 - default enclosed in terms of Section 7(3)(b) or not - HELD THAT - The Appellant denied the said email and letter on the ground that it is forged. An additional affidavit has been filed by the Bank which also produced the cover by which the letter which is typed out copy of email dated 2nd May 2016 was despatched by Mr. M M Ramachandran under his signatures from Dubai on 16th May 2016 and received by the Bank on 25th May 2016. The Original letter is also produced before us therefore we hold that the email dated 2nd May 2016 is genuine. The Appellant has taken wrong plea that it is forged - Appellant submits that the Appellant was in jail in Dubai for having defaulted to pay creditors there and was under travel restrictions. It shows that he is a habitual defaulter. However it is not clear how he has sworn affidavit in India. It is found that Bank has enough records to support that there is a default and therefore the Adjudicating Authority rightly admitted the application under Section 7 - the appeal is dismissed.

Summary

Issues:
1. Barred by limitation under Section 7.
2. Lack of record of default enclosed under Section 7(3)(b).

Analysis:
The judgment by the National Company Law Appellate Tribunal, New Delhi pertains to an appeal challenging the initiation of Corporate Insolvency Resolution Process against a Corporate Debtor by 'South Indian Bank Ltd.' The Appellant, a Promoter, raised two grounds for challenge. Firstly, it was contended that the application under Section 7 was time-barred. The account of the Corporate Debtor was declared a Non-Performing Asset (NPA) on 31st December, 2015, and the application was filed on 10th April, 2019, beyond the three-year period.

The second ground challenged the absence of a record of default enclosed as required by Section 7(3)(b). The Respondent Bank's counsel relied on an email and a subsequent letter received in May 2016 to argue that the Appellant acknowledged the dues, invoking Section 18 of the Limitation Act, 1963. The email and letter revealed the Appellant's acknowledgment of dues amounting to ?220 Crores, which later increased to ?250 Crores with interest. The Appellant, however, denied the authenticity of the email and letter, claiming they were forged.

The Bank presented evidence, including the cover through which the letter was dispatched, validating the authenticity of the email dated 2nd May, 2016. The Tribunal concluded that the email was genuine, dismissing the Appellant's claim of forgery. Additionally, it was noted that the Appellant, despite being in jail in Dubai for defaulting on payments to creditors there, had sworn an affidavit in India, indicating a pattern of habitual default.

Upon review of the records, the Tribunal found sufficient evidence supporting the existence of a default, leading to the Adjudicating Authority's correct admission of the application under Section 7. Consequently, the appeal was dismissed, with no costs imposed.