2020 (10) TMI 584 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - Time Limitation - principles of res-judicata - quantum of ineterest. Time Limitation - HELD THAT - The date of default is taken to be 07.02.2013, since in terms of the conditions mentioned in the invoice, interest would be charged if payment is not made within 30 days - This claim pertains to transactions in the financial year 2012-2013, therefore, the question of limitation must be considered - Time which needs to be excluded from calculation of Limitation period in accordance with section 14 of the Limitation Act, 1963 - (a). Time spent in proceedings before the Hon'ble Bombay High Court (Date on which Winding up petition was filed, i.e., 15.12.2014 to Date on which Company Petition was transferred to this adjudicating authority, i.e., 1.04.2017) 779 days (b). Time spent between the transfer of file and the date on which Form 5 was filed with this authority, in terms of the notification number GSR (E) dated 29.06.2017 ibid (1.02.2017 - 21.06.2017) 140 days (c). Time spent in proceedings before this Adjudicating Authority (Date on which Form 5 was filed 21.06.2017 to Date on which Abatement order was passed 03.10.2018) 469 days. Thus, after exclusion of time of 1,388 days (time spent in proceedings before the Hon'ble Bombay High Court and before this Adjudicating Authority), a period of 228 days prevails before limitation period of 3 years come to an end as per the provisions of Art. 137 of the Limitations Act - the petition filed by the Operational Creditor is within limitation. Principle of res judicata - HELD THAT - It is observed that the order dated 03.10.2018 by the Adjudicating Authority, by which the previous proceeding abated, grants the Operational Creditor liberty to initiate a fresh proceeding as per the provisions of IBC. Therefore, that order which noted the abatement in terms of the notification number GSR (E) dated 29.06.2017 ibid, did not decide on the merits of the case. Therefore, the principles of res judicata are not satisfied and hence, this limb of the arguments advanced on the part of the Corporate Debtor deserves to be rejected. Pre-existing dispute - HELD THAT - The Corporate Debtor claims that there existed a dispute relating to the quality of goods supplied and hence no payment for the same had been made. No correspondence has been placed before this Adjudicating Authority regarding the dispute about quality and quantity of supplies - this defence on the part of the Corporate Debtor also deserves to be rejected. Arbitrary and excessive interest at 24% per annum - HELD THAT - Claim about excessive interest cannot be countenanced at this stage long after the invoices were received and acknowledged by the Corporate Debtor. The Petition made by the Operational Creditor is complete in all respects as required by law. It clearly shows that the Corporate Debtor is in default of a debt due and payable, and the default is more than minimum amount of one lakh rupees stipulated under section 4(1) of the IBC. Therefore, the default stands established and there is no reason to deny the admission of the Petition. In view of this, this Adjudicating Authority admits this Petition and orders initiation of CIRP against the Corporate Debtor - Petition admitted - moratorium declared.

Summary

Issues Involved:
1. Limitation period.
2. Principle of res judicata.
3. Pre-existing dispute.
4. Arbitrary and excessive interest.

Issue-wise Detailed Analysis:

1. Limitation Period:
The Corporate Debtor argued that the petition was barred by limitation, asserting that the cause of action arose on 07.02.2013 and the winding-up petition was filed after 950 days, exceeding the 1095 days limitation period. However, the Tribunal referred to Section 14 of the Limitation Act, which allows exclusion of time spent in bona fide proceedings in a court without jurisdiction. The Tribunal calculated the limitation period, considering the time spent in previous proceedings before the Bombay High Court and this Adjudicating Authority. It concluded that after excluding 1,388 days, only 228 days had elapsed, thus the petition was within the limitation period.

2. Principle of Res Judicata:
The Corporate Debtor claimed that the petition was barred by res judicata due to the previous abatement order dated 03.10.2018. The Tribunal noted that for res judicata to apply, there must be a final judgment on the merits. Since the previous order only noted the abatement and granted liberty to file a fresh proceeding under the IBC, it did not decide on the merits. Therefore, the principles of res judicata were not satisfied, and this argument was rejected.

3. Pre-existing Dispute:
The Corporate Debtor contended that there was a pre-existing dispute regarding the quality of goods supplied. The Tribunal found no correspondence or evidence supporting this claim. The Tribunal emphasized that any communication regarding the inferior quality of goods should have been properly addressed to the Operational Creditor. Thus, this defense was also rejected.

4. Arbitrary and Excessive Interest:
The Corporate Debtor argued that the interest rate of 24% per annum claimed by the Operational Creditor was arbitrary and excessive. The Tribunal noted that the claim about excessive interest could not be entertained at this stage long after the invoices were received and acknowledged by the Corporate Debtor. Therefore, this argument was dismissed.

Conclusion:
The Tribunal found the petition complete in all respects as required by law, establishing that the Corporate Debtor was in default of a debt due and payable, exceeding the minimum amount stipulated under Section 4(1) of the IBC. Consequently, the Tribunal admitted the petition and ordered the initiation of the Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor. The Tribunal also ordered a moratorium under Section 14 of the IBC and directed the appointment of an Interim Resolution Professional (IRP) by a separate order. The Operational Creditor was instructed to deposit ?3,00,000 with the IRP for expenses related to issuing public notices and inviting claims. The IRP/RP was mandated to submit periodical reports to the Tribunal indicating the progress of the CIRP. The Registry was directed to communicate the order to the Operational Creditor and the Corporate Debtor and send a copy to the Registrar of Companies, Maharashtra, Mumbai, for updating the Master Data of the Corporate Debtor.