2021 (2) TMI 53 - AT - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - operational debt, due and payable or not - Frustration of contract by efflux of time - time limitation - HELD THAT - It is seen from the correspondences between the parties and from the perusal of the clauses/articles as enumerated under the EPC contract that the contract has not been terminated by either parties and the contract still subsists. Therefore, the Adjudicating Authority rightly held that there is no termination of contract and the issue raised with regard to barred by limitation cannot be accepted. Therefore, we hold that the Application filed by the Respondent under Section 9 of IBC before the Adjudicating Authority is not barred by limitation. Whether the claim of the Respondent is an Operational Debt? - HELD THAT - Admittedly, the claim of the Respondent is an operational debt. Therefore, the arguments of the Appellant that the claims of the Respondent is not an operational debt does not hold any field. Frustration of contract by efflux of time - HELD THAT - The EPC contract between the Appellant and Respondent still subsists and there is no such clause in the contract regarding frustration or termination by efflux of time, it is held that there is no merit in this point and accordingly, we negate this point issue also. From the perusal of the facts it is evident that the default has arisen out of EPC Contract, which itself is a continuing contract. Even from the Demand Notice dated 02.07.2018 in particulars of operational debt at column-1, the Respondent had clearly stated that the debt fell due on 24.12.2010 and the last payment made to the Respondent was on 25.02.2011 through RTGS. It is also mentioned that the debt continues to fall even today as the EPC contract between the Appellant and Respondent never terminated by either parties - the Adjudicating Authority had rightly admitted the Application of the Respondent which in our considered opinion does not require any interference in the instant Appeal. Appeal dismissed.

Summary

Issues Involved:
1. Whether the Company Petition is maintainable.
2. Whether the debt owed to the Respondent is an operational debt.
3. Whether the Company Petition is barred by limitation.
4. Whether the contract was frustrated by efflux of time.

Detailed Analysis:

1. Maintainability of the Company Petition:
The appeal challenged the order of the Adjudicating Authority (National Company Law Tribunal, Amaravati Bench) which admitted the Application filed by the Respondent under Section 9 of the Insolvency and Bankruptcy Code, 2016 (IBC) and initiated the Corporate Insolvency Resolution Process (CIRP). The Appellant argued that the Application was barred by limitation and that the contract was frustrated by efflux of time. The Tribunal found that the Application was not barred by limitation and the debt owed was an operational debt, thus maintaining the Company Petition.

2. Operational Debt:
The Tribunal examined whether the claim of the Respondent constituted an operational debt under Section 5(21) of the IBC, which defines operational debt as a claim in respect of the provision of goods or services. The Tribunal concluded that the claim of the Respondent was indeed an operational debt, as it arose from the provision of services and goods under the EPC contract.

3. Limitation:
The Appellant contended that the Application was barred by limitation under Article 137 of the Limitation Act, 1963. However, the Tribunal observed that the contract between the parties was still subsisting and had not been terminated by either party. The Tribunal held that the continuous correspondence and the lack of termination indicated that the claim was within the limitation period. The Tribunal referenced the amendment to the IBC incorporating Section 238A, which applies the Limitation Act to applications filed under the IBC, and concluded that the Application was not barred by limitation.

4. Frustration of Contract by Efflux of Time:
The Appellant argued that the contract was frustrated by efflux of time, but the Tribunal found no clause in the EPC contract regarding frustration or termination by efflux of time. The Tribunal noted that the contract still subsisted and that the Respondent had suspended work due to non-payment by the Appellant, but had not terminated the contract. The Tribunal rejected the argument of frustration by efflux of time, holding that the contract was still in effect.

Conclusion:
The Tribunal upheld the decision of the Adjudicating Authority to admit the Application under Section 9 of the IBC, concluding that the Application was maintainable, the debt was an operational debt, the claim was not barred by limitation, and the contract was not frustrated by efflux of time. The appeal was dismissed as devoid of merit.