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2021 (6) TMI 702 - Tri - Insolvency and BankruptcyReopening/Revival of application on account of default in payment by the Corporate Debtor - HELD THAT - In the present case, the prayer of the operational creditor becomes pertinent in light of the fact that the minimum threshold of default under section 4 of IBC 2016 has been raised from Rupees One Lakh to Rupees One Crore vide Notification F. No. 30/09/2020 dated 24th March, 2020 issued by the Ministry of Corporate Affairs. Further, if we did not revive the IBA, it will give further room to the Corporate Debtor to violate settlement arrived before 24.03.2020, they defeat the very spirit of IBC. Hence, if terms of compromise are not honoured, there the IBA shall be reverted to its original position and the Adjudicating Authority shall take up the same for Adjudication. The Hon'ble Supreme Court also in the matter of Ess Investments vs. Lokhandwala Infrastructure 2020 (6) TMI 597 - SUPREME COURT held that the National Company Law Tribunal can restore a 'Petition' which was dismissed as an 'infructuous one'. Application allowed.
Issues:
1. Reopening of insolvency application due to default in payment by the Corporate Debtor. 2. Determination of default date and amount under the Insolvency and Bankruptcy Code, 2016. 3. Contention regarding the procedure for reopening applications under the I&B Code. 4. Application of the minimum threshold of default under Section 4 of the IBC 2016. 5. Authority of the Adjudicating Authority to restore original applications on breach of consent terms. Analysis: 1. The Applicant sought to reopen the insolvency application under Section 60(5) of the Insolvency and Bankruptcy Code, 2016, due to default in payment by the Corporate Debtor as per the Joint Memo of Compromise. The Applicant, an Operational Creditor, filed the initial application under Section 9 of the Code, claiming a specific amount. The Corporate Debtor made partial payments and issued post-dated cheques. However, the cheques were dishonored due to insufficient funds, leading to the Applicant's request to reopen the application based on the default (para 2). 2. The Corporate Debtor contended that the default occurred only after a specific date and disputed the Applicant's claim regarding the default amount and date. The Respondent cited previous judgments to argue against the reopening of the application, emphasizing the absence of a specific procedure for such cases. Additionally, the Respondent highlighted the threshold amount for initiating Corporate Insolvency Resolution Process (CIRP) under the IBC (para 3). 3. The Tribunal considered the arguments from both sides and noted the change in the minimum default threshold under Section 4 of the IBC 2016. The Tribunal emphasized the importance of upholding settlement terms and preventing Corporate Debtors from violating agreements post the threshold revision. The Tribunal decided in favor of reopening the application to maintain the spirit of the IBC and ensure adherence to compromise terms (para 4). 4. The Tribunal referred to the NCLAT and Supreme Court judgments regarding the authority of the Adjudicating Authority to restore original applications despite consent terms or dismissal. The Tribunal acknowledged the power to revive applications in cases of breach of compromise terms, reinforcing the authority to restore applications that were previously dismissed (para 5). 5. Ultimately, the Tribunal allowed the instant application to reopen the insolvency application and directed the Registry to list the matter for further proceedings. The decision was based on the need to uphold the compromise terms and prevent Corporate Debtors from circumventing settlement agreements post the revision of the default threshold under the IBC (para 7-8).
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