2020 (4) TMI 604 - Tri - Insolvency and Bankruptcy

Admissibility of petition - initiation of CIRP - time limitation - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - whether the petition filed by the financial creditor is within the period of limitation under Article 137 of the Limitation Act? - HELD THAT - There is no impediment for the petitioner/financial creditor to initiate proceedings under the Insolvency and Bankruptcy Code, 2016 simultaneously, along with initiation of proceedings before the Debt Recovery Tribunal. The question of exclusion of time on the ground that proceedings are pending before the Debt Recovery Tribunal, for computation of limitation under Article 137 of the Limitation Act does not arise, for the reason that the Debt Recovery Tribunal proceedings are still pending and the petitioner/financial creditor moved the present application under section 7 of the Insolvency and Bankruptcy Code, 2016 simultaneously. There is no question of any exclusion of time under section 14 of the Limitation Act for initiation of proceedings under section 7 of the Insolvency and Bankruptcy Code, 2016 by the petitioner/financial creditor against the corporate debtor - In the present case the account was declared as NPA on 30-4-2013, whereas the present petition under section 7 of the I B Code was filed on 12-9-2018, which was filed beyond three years. As such the present application is liable to be rejected. Petition dismissed.

Issues Involved:
1. Whether the application filed by the financial creditor under Section 7 of the Insolvency and Bankruptcy Code, 2016 (IBC) is maintainable.
2. Whether the application is barred by limitation under Article 137 of the Limitation Act.
3. Whether the person who signed the application on behalf of the financial creditor was authorized.
4. Whether the documents filed by the financial creditor comply with the Bankers' Books Evidence Act, 1891.

Issue-wise Detailed Analysis:

1. Maintainability of the Application:
The application was filed by the State Bank of India (SBI) under Section 7 of the IBC, seeking initiation of the Corporate Insolvency Resolution Process (CIRP) against the corporate debtor for defaulting on a sum of ?327,03,72,501.81. The financial creditor provided various financial facilities to the corporate debtor, including cash credit, corporate loan, and term loans. The corporate debtor defaulted, and its account was classified as a non-performing asset (NPA) on 30-4-2013. The corporate debtor argued that the IBC is prospective and should not apply to defaults occurring before its enactment. However, the tribunal noted that the IBC does not explicitly restrict its application to post-enactment defaults. The tribunal emphasized that the primary consideration is whether the debt and default are established, which was not disputed by the corporate debtor.

2. Limitation under Article 137 of the Limitation Act:
The corporate debtor contended that the application was barred by limitation as it was filed more than five years after the default date (30-4-2013). The tribunal referred to the Supreme Court's decision in B.K. Educational Services (P.) Ltd. v. Parag Gupta & Associates, which held that Article 137 of the Limitation Act applies to applications under Sections 7 and 9 of the IBC. The right to sue accrues when a default occurs, and if the default occurred more than three years before the application, it would be barred by limitation. The tribunal found that the application, filed on 12-9-2018, was beyond the three-year limitation period from the default date. The financial creditor's argument that the debt was acknowledged through a revival letter dated 6-2-2014, extending the limitation period, was rejected as the application was still filed beyond three years from the acknowledgment date.

3. Authorization of the Signatory:
The corporate debtor challenged the authority of the Assistant General Manager (AGM) who signed the application on behalf of SBI. The tribunal noted that SBI provided a letter of authority dated 31-8-2018 from the Deputy General Manager, authorizing the AGM to file the application. The tribunal found this authorization to be valid and sufficient to maintain the application.

4. Compliance with the Bankers' Books Evidence Act, 1891:
The corporate debtor argued that the documents filed by the financial creditor were not properly certified under the Bankers' Books Evidence Act, 1891. The tribunal found that SBI had enclosed the necessary certificates as required by the Act, establishing compliance with the provisions.

Conclusion:
The tribunal concluded that the application was barred by limitation under Article 137 of the Limitation Act, as it was filed beyond three years from the default date and the acknowledgment date. The application was dismissed on this ground, rendering other contentions irrelevant for the decision. The tribunal emphasized that the right to sue accrues from the date of default, and any application filed beyond the limitation period cannot be entertained.

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