2020 (5) TMI 65 - AT - Insolvency and Bankruptcy

Initiation of CIRP - Time limitation - advancement of loan and allied financial facilities to the Corporate Debtor - HELD THAT - In view of there being no controversy as regards facts qua advancement of loan and allied financial facilities to the Corporate Debtor falling within the purview of financial debt , the status of parties before the Adjudicating Authority as Financial Creditor and Corporate Debtor besides the admitted position as regards default in clearing the outstanding amount of debt which according to Financial Creditor stood at ₹ 273,09,68,793/- as on 31st March, 2018, the only issue requiring consideration in the instant appeal relates to limitation, notwithstanding the fact that the issue appears not to have been pressed before the Adjudicating Authority - Section 3 of the Limitation Act, 1963 renders it obligatory upon the Tribunal to address the issue of limitation notwithstanding the fact that the same has not been raised as a ground of defence by the Respondent. The dictum of law enshrined in Section 3 of the Limitation Act is loud and clear and speaks of no exception other than the situations covered under Sections 4 to 24 thereof. This is a mandatory provision of law barring a remedy qua an enforceable right and the effect is that the Creditor s remedy to recover an outstanding debt gets eclipsed though the right itself does not get extinguished. Therefore, notwithstanding the fact that the Corporate Debtor has not raised the issue of limitation and in effect abandoned the plea before the Adjudicating Authority, it is obligatory upon this Appellate Tribunal to examine the issue of limitation, determination whereof has a bearing on the claim itself. If the claim is barred by limitation, the debt will cease to be recoverable and it will not be payable in law or in fact. In such an eventuality, the Corporate Debtor cannot be held to have committed default in respect of the outstanding debt. It is manifestly clear that unless the case of a Creditor falls within the exceptions, exemptions or exclusions as noticed hereinabove or there is no acknowledgment of liability in writing on the part of the Debtor at a time when the claim was enforceable i.e. within limitation period, the claim of the Creditor shall be barred by limitation unless preferred (whether in the form of a suit or such other form as may be prescribed) within the period of limitation prescribed under law - It is therefore necessary to wade through the record to find out as to when the right to sue accrued and whether the application filed by the Financial Creditor was within limitation. Contention raised by Appellant that the power of attorney was executed prior to enactment of I B Code and could not extend the authority to file application under Section 7 of I B Code is bereft of merit both in technique as also in substance. Once the authority was given, inter alia, to file litigation pertaining to recovery of the outstanding debt of the Financial Creditor, it becomes irrelevant whether the law governing such recovery or providing for a mechanism like the resolution process contemplated under I B Code was or was not in force on the date when the authority was given - Any interpretation to the contrary would be absurd. In so far as the contention regarding the application being incomplete is concerned, suffice it to say that the Adjudicating Authority has shown its awareness in regard to the particulars required to be furnished in Form 1. It noticed that the Financial Creditor had provided details of loan sanctioned, Statement of accounts, interest debited and charges debited, etc. in Part 4 of Form 1. It also found that the certificates under Banker s Books Evidence Act and the Information Technology Act had been filed by the Financial Creditor and after recording its satisfaction in regard to the application being complete and there being debt and default and the debt being payable, the Adjudicating Authority passed the impugned order admitting the application with all consequential directions - In so far as joining of issue by the Corporate Debtor qua the quantum of payable debt is concerned, same does not fall for consideration of the Adjudicating Authority at the stage of admission of the application under Section 7 of the I B Code. Appeal dismissed.

Summary

Issues Involved:
1. Existence of default.
2. Quantification of debt and default.
3. Rectification of defects.
4. Competence of the person triggering the Corporate Insolvency Resolution Process.
5. Claim being barred by limitation.

Issue-wise Detailed Analysis:

1. Existence of Default:
The initiation of the Corporate Insolvency Resolution Process (CIRP) was based on the Financial Creditor, Punjab National Bank, advancing loans to the Corporate Debtor, NRC Limited. The loan included working capital fund-based limits, non-fund-based limits, corporate term loans, and short-term loans. The Financial Creditor issued a notice under Section 13(2) of the SARFAESI Act on 31st December 2016, claiming an outstanding amount of ?273,09,68,793 as of 31st March 2018. The Corporate Debtor's objections were overruled by the Adjudicating Authority, which found the application complete and the default established.

2. Quantification of Debt and Default:
The Corporate Debtor argued that the Financial Creditor failed to quantify the debt or its default and that the application lacked material information regarding the occurrence of default. The Adjudicating Authority found that the Financial Creditor had provided sufficient details, including loan sanctions, statements of accounts, and interest debited, in Form 1. The Financial Creditor also filed certificates under the Banker’s Books Evidence Act and the Information Technology Act, which the Adjudicating Authority found satisfactory.

3. Rectification of Defects:
The Corporate Debtor contended that despite directions from the Adjudicating Authority, the Financial Creditor failed to rectify defects in the application. However, the Adjudicating Authority found that the application was complete in all respects. The objections regarding the application not being signed by the authorized person were also dismissed, as the Chief Manager of the Financial Creditor was deemed duly authorized.

4. Competence of the Person Triggering the CIRP:
The Corporate Debtor questioned the competence of the person who filed the application under Section 7 of the Insolvency and Bankruptcy Code (I&B Code). The Adjudicating Authority found that the Chief Manager of the Financial Creditor, who signed Form 1, was duly authorized. The argument that the power of attorney was executed before the enactment of the I&B Code and could not extend to filing the application under the Code was dismissed as irrelevant.

5. Claim Being Barred by Limitation:
The core issue requiring consideration was whether the claim was barred by limitation. The Corporate Debtor was declared a Sick Industrial Unit under SICA, with directions under Section 22(1) of SICA preventing creditors from taking coercive action without BIFR's permission. The period from 16th July 2009 to 1st December 2016, when SICA was repealed, was excluded from the limitation period. The application under Section 7 of the I&B Code was filed in May 2018, within three years from the enforcement date of Section 7. Additionally, there was an acknowledgment of the outstanding debt by the Corporate Debtor in a letter dated 4th August 2018, agreeing to settle dues on a One Time Settlement (OTS) basis. This acknowledgment extended the limitation period. The Financial Creditor's rejection of the OTS proposal on 30th October 2018 did not affect the validity of the claim.

Conclusion:
The appeal was dismissed, with the Appellate Tribunal finding no merit in the arguments presented by the Appellant. The Adjudicating Authority's order admitting the application under Section 7 of the I&B Code was upheld, and all objections raised by the Corporate Debtor were overruled. The Tribunal emphasized that the debt was not barred by limitation and that the application was complete and filed by a duly authorized person.