2018 (3) TMI 1455 - Tri - Insolvency and Bankruptcy

Initiation of Corporate Insolvency Resolution process - default in making repayment of the loan facility availed from the Bank on 31.05.2011 - Held that - Referring to material papers filed by the petitioner it is no doubt fact that the corporate debtor availed loan facilities from the Petitioner and thereafter defaulted in making repayment to the Petitioner Bank therefore the only consideration left to be decided by this Bench is as to whether this claim is barred by limitation or not. This Bench being satisfied that the Petitioner furnished all the material papers reflecting existence of debt and default within limitation and the name of the Resolution Professional proposed to act as Interim Resolution Professional this Bench hereby admits this application

Summary

Issues Involved:
1. Default in repayment of loan.
2. Classification of account as NPA.
3. Limitation period for filing insolvency application.
4. Acknowledgement of debt and part payments.
5. Admissibility of evidence and documents.
6. Appointment of Interim Resolution Professional (IRP).

Detailed Analysis:

1. Default in Repayment of Loan:
The Financial Creditor, Punjab National Bank (PNB), filed a petition under Section 7 of the Insolvency and Bankruptcy Code (IBC) against the Corporate Debtor, Anand Distilleries Pvt. Ltd., for defaulting on repayment of a loan facility. The Corporate Debtor had availed multiple loan facilities from PNB, including term loans and cash credit facilities, aggregating to ?30,00,75,000. Despite several notices and demands, the Corporate Debtor failed to repay the outstanding amount, leading to the initiation of the Corporate Insolvency Resolution Process (CIRP).

2. Classification of Account as NPA:
The account of the Corporate Debtor was classified as a Non-Performing Asset (NPA) on 31.05.2011, as per RBI guidelines. The Petitioner issued a notice under Section 13(2) of the SARFAESI Act, 2002, to the Corporate Debtor and guarantors, demanding repayment of ?32,65,09,799.27 as of 31.05.2011. The Corporate Debtor's failure to comply with this notice led to further legal actions, including filing an application before the Debt Recovery Tribunal (DRT).

3. Limitation Period for Filing Insolvency Application:
The primary contention was whether the petition was barred by limitation. The Corporate Debtor argued that the limitation period had expired, as the account was classified as NPA on 31.05.2011, and the petition was filed after more than three years. However, the Tribunal held that the limitation period was arrested due to the pending lis before the DRT and continuous acknowledgments of debt by the Corporate Debtor, thereby keeping the claim within the limitation period.

4. Acknowledgement of Debt and Part Payments:
The Tribunal examined various acknowledgments and part payments made by the Corporate Debtor, which included letters and proposals for one-time settlement (OTS). Notably, letters dated 16.07.2014 and 30.03.2016, and several part payments were considered acknowledgments under Sections 18 and 19 of the Limitation Act, 1963. These acknowledgments and payments extended the limitation period, making the claim valid and within the prescribed time frame.

5. Admissibility of Evidence and Documents:
The Petitioner submitted numerous documents, including loan agreements, hypothecation agreements, balance confirmation letters, and correspondence between the parties. The Tribunal accepted these documents as valid evidence of the debt and default. The Corporate Debtor's arguments against the admissibility of certain documents, such as the subsidy granted by the Central Government, were dismissed.

6. Appointment of Interim Resolution Professional (IRP):
The Tribunal appointed Mr. Dushayant C. Dave as the Interim Resolution Professional (IRP) to carry out the functions as specified under the IBC. The order included provisions for the moratorium, which prohibited the institution or continuation of suits or proceedings against the Corporate Debtor, transferring or disposing of assets, and recovery actions under the SARFAESI Act.

Conclusion:
The Tribunal admitted the petition, initiating the CIRP against the Corporate Debtor. The order included a moratorium period effective from 14.02.2017 until the completion of the CIRP or approval of the resolution plan. The Registry was directed to communicate the order to both parties within seven days.