2022 (2) TMI 1262 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT - Upon a detailed consideration of the application and documents filed by the Applicant it is apparent that the payment of the claim amount has been defaulted by the Corporate Debtor. Hence this Adjudicating Authority is inclined to commence CIRP against the Corporate Debtor as envisaged under the provisions of IBC 2016. Petition admitted - moratorium declared.

Summary

Issues Involved:
1. Financial Creditor's claim and initiation of CIRP under Section 7 of IBC.
2. Validity of the application considering the principle of Res Judicata.
3. Nature of the transaction: Loan vs. Share Application Money.
4. Admissibility of evidence without a certificate under Section 65(b) of the Indian Evidence Act.
5. Applicability of Section 18 of the Limitation Act.
6. Appointment of Interim Resolution Professional (IRP) and commencement of CIRP.

Detailed Analysis:

1. Financial Creditor's Claim and Initiation of CIRP under Section 7 of IBC:
The Applicants, claiming to be Financial Creditors, filed an application under Section 7 of the Insolvency and Bankruptcy Code (IBC), 2016, seeking the initiation of Corporate Insolvency Resolution Process (CIRP) against the Respondent due to default in repayment of a loan amounting to Rs. 3.50 crores. The Financial Creditor had entered into a settlement agreement with the Corporate Debtor, acknowledging the loan. The Corporate Debtor's balance sheet and various email communications confirmed the debt and default.

2. Validity of the Application Considering the Principle of Res Judicata:
The Respondent argued that the application was barred by Res Judicata as a previous application on the same matter was withdrawn without permission to file a fresh application. The Tribunal distinguished the present case from cited judgments, noting that the withdrawal was due to a settlement between the parties, and thus, the principle of Res Judicata did not apply.

3. Nature of the Transaction: Loan vs. Share Application Money:
The Respondent contended that the amount advanced was not a loan but share application money for acquiring equity in a US-based firm. The Tribunal, however, found that the transaction had the commercial effect of borrowing, as the amount was treated as a loan in the Corporate Debtor’s balance sheet and was acknowledged as such in various communications.

4. Admissibility of Evidence Without a Certificate under Section 65(b) of the Indian Evidence Act:
The Respondent challenged the admissibility of balance sheet extracts and emails relied upon by the Applicant, citing the absence of a certificate under Section 65(b) of the Indian Evidence Act. The Tribunal referred to the Supreme Court's ruling in Assets Reconstruction Company Limited Vs. Bishal Jaiswal, which held that entries in the balance sheet amount to an acknowledgment of debt for extending the limitation period under Section 18 of the Limitation Act.

5. Applicability of Section 18 of the Limitation Act:
The Tribunal noted that the acknowledgment of debt in the balance sheet extended the limitation period under Section 18 of the Limitation Act, thus making the application timely and maintainable.

6. Appointment of Interim Resolution Professional (IRP) and Commencement of CIRP:
The Tribunal appointed Mr. Deepak Arora as the Interim Resolution Professional (IRP) and directed the commencement of CIRP against the Corporate Debtor. The moratorium under Section 14 of IBC was invoked, and the IRP was instructed to carry out CIRP as per the timelines specified in IBC, 2016. The Applicant was directed to deposit Rs. 2,00,000/- to cover the IRP's expenses.

Conclusion:
The Tribunal admitted the application under Section 7 of IBC, initiating CIRP against the Corporate Debtor. The IRP was appointed, and the moratorium was invoked, marking the commencement of the insolvency resolution process.