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2022 (10) TMI 702 - Tri - Insolvency and BankruptcyMaintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - time limitation - HELD THAT - It is clear that the Corporate Debtor s contention that the instant petition is barred by limitation is not a valid one. In light of the acknowledgements dated 31.03.2014, 01.04.2014, 06.08.2014, 12.08.2014, 22.01.2015, 31.08.2017, 01.09.2017 and 17.02.2018 on the part of the Corporate Debtor for its liability towards the Financial Creditor, section 18 of the Limitation Act, 1963 will come into play, thereby starting fresh limitation period from the date of each acknowledgment successively. Therefore, the limitation period would start afresh from the last date of acknowledgment being 17.02.2018 and end on 17.02.2021. The Corporate Debtor has also contended that the instant petition is not maintainable since there is no record of default with any information utility. In this regard, section 7(3) of the Code needs to be referred, which states that the Financial Creditor shall, along with the application, furnish the record of the default recorded with the information utility or such other record or evidence of default as may be specified. As such, the Financial Creditor has sufficiently established the existence of debt and its default on the basis of the CIBIL report, the acknowledgments of debt by the Corporate Debtor, and the OTS - the Corporate Debtor s contention that the OTS was valid till 31.03.2020 is also not maintainable since point 9 of the OTS proposal dated 27.11.2019 (attached as Annexure C to the Supplementary Affidavit) specifically mentions that in case of default of any installments as stipulated in the said sanction, the OTS shall get lapsed. The Corporate Debtor has on several instances, admitted to the existing Financial Debt and its default and the same is also reflected in the report issued by CIBIL. Further, the petition is within the period of limitation and above the pecuniary threshold for the relevant period of time i.e Rupees One Lakh. The present petition made by the Financial Creditor is complete in all respect as required by law. The petition establishes that the Corporate Debtor is in default of a debt due and payable - Petition admitted - moratorium declared.
Issues Involved:
1. Maintainability of the petition under Section 7 of the Insolvency and Bankruptcy Code, 2016 (IBC). 2. Limitation period for filing the petition. 3. Authorization to file the petition. 4. Multiplicity of proceedings and forum shopping. 5. Validity and impact of One Time Settlement (OTS) on the petition. 6. Pendency of recovery proceedings before the Debt Recovery Tribunal (DRT). 7. Admissibility of the petition based on the acknowledgment of debt. 8. Application of Section 10A of IBC during the COVID-19 period. Detailed Analysis: 1. Maintainability of the Petition: The Financial Creditor filed the petition under Section 7(1) of the IBC to initiate the Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor. The Corporate Debtor contended that the petition is defective and not maintainable due to the lack of record of default with any information utility and improper authorization. However, the Tribunal found that the Financial Creditor had sufficiently established the existence of debt and its default through various documents, including the CIBIL report and acknowledgments of debt by the Corporate Debtor. The Tribunal also noted that the general power of attorney given to Mr. Tusar Kanti Roy by the Financial Creditor was sufficient to file the petition. 2. Limitation Period: The Corporate Debtor argued that the petition is barred by limitation since the account was declared Non-Performing Asset (NPA) on 30.09.2012, and the petition was filed on 11.03.2019. The Tribunal found that the Corporate Debtor had acknowledged its liabilities multiple times, as evidenced by letters dated 31.03.2014, 01.04.2014, 06.08.2014, 12.08.2014, 22.01.2015, 31.08.2017, 01.09.2017, and 17.02.2018. These acknowledgments extended the limitation period under Section 18 of the Limitation Act, 1963. Therefore, the petition was within the limitation period. 3. Authorization to File the Petition: The Corporate Debtor contended that there was no valid authorization for the petition as it was filed based on a power of attorney without a board resolution. The Tribunal found that the general power of attorney given to Mr. Tusar Kanti Roy by the Financial Creditor was sufficient to file the petition. The power of attorney holder had the authority to grant letters of credit and file legal proceedings, including the instant petition under Section 7 of the IBC. 4. Multiplicity of Proceedings and Forum Shopping: The Corporate Debtor argued that the Financial Creditor was indulging in multiplicity of proceedings and forum shopping as recovery proceedings were pending before the DRT. The Tribunal noted that proceedings under the IBC are not merely recovery proceedings but aim at the revival of the Corporate Debtor from insolvency. Therefore, the pendency of recovery proceedings before the DRT does not bar the initiation of insolvency proceedings under the IBC. 5. Validity and Impact of One Time Settlement (OTS): The Corporate Debtor submitted that an OTS proposal was approved, and payments were made, which should estop the Financial Creditor from proceeding with the petition. The Tribunal found that the OTS was revoked due to the Corporate Debtor's failure to meet the terms, specifically the payment due on 31.12.2019. The OTS proposal explicitly mentioned that it would lapse upon default of any installment. Therefore, the OTS stood lapsed on 31.12.2019, and the Financial Creditor was within its rights to initiate CIRP proceedings. 6. Pendency of Recovery Proceedings Before DRT: The Corporate Debtor argued that the petition should be dismissed due to the pending recovery proceedings before the DRT. The Tribunal reiterated that insolvency proceedings under the IBC are distinct from recovery proceedings and aim at the revival of the Corporate Debtor. Thus, the pendency of recovery proceedings does not affect the maintainability of the CIRP petition. 7. Admissibility Based on Acknowledgment of Debt: The Tribunal found that the Corporate Debtor had acknowledged its debt multiple times through various letters, which extended the limitation period. The acknowledgment of debt by the Corporate Debtor was sufficient to establish the existence of debt and its default, making the petition admissible. 8. Application of Section 10A During COVID-19: The Corporate Debtor contended that the petition is not maintainable due to the suspension of CIRP initiation during the COVID-19 period under Section 10A of the IBC. The Tribunal found that the default occurred before the COVID-19 period and the introduction of Section 10A. The OTS was revoked on 06.12.2019, and the default occurred on 31.12.2019, which was prior to the COVID-19 period. Therefore, Section 10A was not applicable in this case. Conclusion: The Tribunal admitted the petition under Section 7 of the IBC, initiating CIRP against the Corporate Debtor. A moratorium under Section 14 of the IBC was imposed, and Mr. Anil Agarwal was appointed as the Interim Resolution Professional (IRP). The interlocutory application filed by the Corporate Debtor for rejection of the petition was dismissed. The Tribunal directed the IRP to carry out his functions as per the IBC and submit periodical reports on the progress of the CIRP.
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