2017 (7) TMI 580 - HC - Insolvency and Bankruptcy

Proceedings under the Insolvency and Bankruptcy Code, 2016 - press release issued by RBI - Held that - Filing of insolvency proceedings would be a decision of the concerned person, who is entitled to file such application and, therefore, to that extent, it cannot be said either respondent No.2 or 3 can be restrained from filing such application in accordance with law. It is undisputed fact that filing of such application itself cannot be questioned or that action cannot be quashed, but it goes without saying that such filing would not amount to admitting or allowing the petition for insolvency without offering reasonable opportunity to the company, which is requested to be taken into insolvency by any such person. Therefore, the adjudicating authority being NCLT herein, which is constituted in place of the Company Court, needs to decide on its own based upon factual details that whether the insolvency petition is required to be entertained as such or not. For the purpose, adjudicating authority, certainly requires to extend hearing and reasonable opportunity to the company to explain that why such an application should not be entertained. It would be a decision based on judicial discretion by the adjudicating authority to deal with such application in accordance with law and based upon facts, evidence and circumstance placed before it. To that extent, prayers 7(b) and (c) cannot be granted. Then, remains the only issue that whether RBI is empowered to publish press release dated 13.6.2017 or not. So far as directions to the Bank to initiate insolvency proceedings against companies, which are in debt to certain level or extent, the amended provisions of the Banking Regulation Act, 1949 in the form of Sections 35(AA) and (AB), certainly makes it clear that, now, RBI has such powers to issue certain directions to certain Banks and banking companies so as to see that there is proper recovery of public money or for any other such purpose. Therefore, the issuance of press release alone, cannot be quashed and set-aside. So far factual details of Petitioner Company with reference to its activities and exercise of restructuring through JLF is concerned, it would be appropriate not to enter into any determination on such point since that would be the subject matter before the Adjudicating Authority under IBC (i.e. NCLT) and therefore it is left open for it to consider it for its determination in accordance with Law, to avoid any prejudice to either party It cannot be held that Banking Company is not entitled to initiate insolvency proceedings without the directions of the RBI u/s 35AA of BRA. Therefore relief in terms of para 7(b) cannot be granted. It cannot be held that directives of RBI under reference by impugned press release is binding upon SCB and therefore SCB is bound to consider the restructuring proposal by the petitioner, wherein petitioner has offered to start payment of dues only after 25 years and that too only with 1 % interest. Therefore relief in terms of para 7(c) cannot be granted. Only because SCB has corresponded to SBI for its proposal with reference to JLF activities, it cannot be held that SCB could not have initiated insolvency proceedings but it has done it only because of RBI guidelines by way of press release. Therefore relief in terms of para 7(c) cannot be granted. Provisions of IBC may be drastic to some extent, but since it is part of statue which is yet not declared unconstitutional and therefore they are to be followed, but in consonance with Constitutional mandate by all concerned i.e. Without being guided by any advice or directions in any form or nature viz impugned press release. There is reason to say so because RBI has tried to do so and changed its document when called upon to explain their stand; and Thereby it is obvious that adjudicating authority may though proceed in accordance with Law, there should not be undue pressure on it by administration and period of pendency of present petition can certainly be considered as reasonable ground to count the time limit from the date of receipt of writ of this order. No writ can be issued against SCB and therefore petition stands dismissed against Respondent No. 3 SCB. Factual details between the Petitioner and SCB has been avoided to be discussed further because this Court has not to decide the validity or proprietary of action by SCB against the petitioner when petition by SCB against petitioner is pending before the NCLT and therefore discussion and determination on factual issues may prejudice either side.

Summary

Issues Involved:
1. Validity of RBI's press release dated 13.06.2017 directing banks to initiate insolvency proceedings.
2. Classification of companies for insolvency proceedings based on debt and NPA criteria.
3. RBI's authority to issue directions under Section 35AA and 35AB of the Banking Regulation Act (BRA), 1949.
4. The impact of insolvency proceedings on the petitioner's restructuring efforts.
5. The role of National Company Law Tribunal (NCLT) in adjudicating insolvency petitions filed by banks.

Detailed Analysis:

1. Validity of RBI's Press Release:
The petitioner challenged the RBI's press release dated 13.06.2017, which directed banks to initiate insolvency proceedings against certain companies, including the petitioner, under the Insolvency and Bankruptcy Code (IBC), 2016. The court noted that the RBI admitted a drafting error in the press release and issued a corrigendum on 08.07.2017 to delete the statement that such cases would be accorded priority by the NCLT. The court emphasized that the RBI must be careful in issuing press releases to ensure they align with constitutional mandates and legal principles.

2. Classification of Companies:
The press release classified companies into two categories based on debt and NPA criteria: those with outstanding amounts greater than ?5000 Crores with 60% or more classified as NPAs as of 31.03.2016, and others. The petitioner argued that this classification was arbitrary and discriminatory. The court held that the classification was not irrational, unjust, or discriminatory, as it aimed to address the largest and longest-standing NPAs for rapid economic recovery. The RBI's classification was based on objective criteria and had a rational nexus with the IBC's objectives.

3. RBI's Authority under Section 35AA and 35AB of BRA:
The court examined Sections 35AA and 35AB of the Banking Regulation Act, which empower the RBI to issue directions for initiating insolvency resolution processes and resolving stressed assets. The court concluded that the RBI had the authority to issue such directions, and the press release was in accordance with these statutory provisions. The RBI's decision to direct banks to initiate insolvency proceedings was based on the recommendations of its Internal Advisory Committee and objective criteria.

4. Impact on Petitioner's Restructuring Efforts:
The petitioner argued that the restructuring proposal was under active consideration by the banks and that initiating insolvency proceedings would disrupt the company's operations and ongoing restructuring efforts. The court acknowledged the petitioner's concerns but emphasized that the NCLT, as the adjudicating authority, would consider all relevant facts and circumstances before admitting the insolvency petition. The court noted that the NCLT must offer a reasonable opportunity to the company to explain why the insolvency petition should not be entertained.

5. Role of NCLT:
The court clarified that the filing of an insolvency petition does not automatically result in its admission. The NCLT must exercise judicial discretion and consider the merits of the case before admitting the petition. The court emphasized that the NCLT is not a mere rubber-stamp authority and must independently evaluate the evidence and arguments presented by both parties. The court also highlighted that the NCLT should not be unduly influenced by administrative directions or press releases.

Conclusion:
The court disposed of the petition with several observations, including the need for the RBI to ensure its press releases align with constitutional mandates and legal principles. The court upheld the RBI's authority to issue directions under Sections 35AA and 35AB of the BRA and found the classification of companies for insolvency proceedings to be rational and non-discriminatory. The court emphasized the NCLT's role in independently adjudicating insolvency petitions and providing a fair hearing to the affected company. The petition was dismissed against Standard Chartered Bank (SCB), and the court refrained from granting the specific reliefs sought by the petitioner.