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2020 (10) TMI 688 - AT - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Non-performing asset - revival of dead debt - time limitation - HELD THAT - The Application filed by the Respondents under Section 7 of the Code in the present case is an effort to revive a dead debt. The date of default is crucial to determine the date when the cause of action accrued. In this case, the Respondent has not mentioned the date of default. In the case of Gaurav Hargovindbhai Dave 2019 (9) TMI 1019 - SUPREME COURT , Hon'ble Supreme Court has considered that the date of default to be the date of NPA. Therefore, the date of default, in this case, is 31st January 2010 - The right to sue under IBC occurs when default occurs. If the default has occurred over three years period prior to the date of filing the Application, the Application would be time-barred. Admittedly, in this case the Corporate Debtor was declared to be Non-performing Asset on 28th May 2014. The date was later changed to 31st January 2010. Therefore, if the position taken by the Financial Creditor Bank is taken as correct, 'Default' occurred on or before 31st January 2010. The period of Limitation for the same would expire on 30th January 2013. The Application for initiation is filed on 23rd July 2018 - The right to sue , therefore, accrues when a default occurs. If the default has occurred over three years prior to the date of filing of the Application, the Application would be barred under Article 137 of the Limitation Act, save and except in those cases where, in the facts of the case, Section 5 of the Limitation Act may be applied to condone the delay in filing such Application . The Application filed under Section 7 of the Code by the Financial Creditor is barred by Limitation - Application dismissed.
Issues Involved:
1. Initiation of Corporate Insolvency Resolution Process (CIRP) under Section 7 of the Insolvency and Bankruptcy Code, 2016. 2. Classification of the Corporate Debtor's account as Non-Performing Asset (NPA). 3. Limitation period for filing an application under Section 7 of the Insolvency and Bankruptcy Code, 2016. 4. Validity of the default date and its impact on the limitation period. 5. Applicability of Article 137 of the Limitation Act, 1963. 6. Release from the moratorium and the functioning of the Corporate Debtor. Issue-wise Detailed Analysis: 1. Initiation of CIRP under Section 7 of the IBC, 2016: The State Bank of India (SBI), on behalf of a consortium of banks, filed an application under Section 7 of the Insolvency and Bankruptcy Code, 2016 (I&B Code), to initiate the Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor. The National Company Law Tribunal (NCLT), Bengaluru Bench, admitted the application on 14th December 2018, which was challenged by the Appellant, an ex-Director of the Corporate Debtor. 2. Classification of the Corporate Debtor's Account as NPA: The Corporate Debtor's account was classified as a Non-Performing Asset (NPA) by SBI on 31st January 2010, which was later restructured. Other consortium banks, including Punjab National Bank and UCO Bank, also classified the account as NPA on different dates. The classification as NPA is crucial for determining the default date and the subsequent legal actions. 3. Limitation Period for Filing an Application under Section 7 of the IBC, 2016: The Hon'ble Supreme Court remanded the matter to the Appellate Tribunal to re-examine the question of limitation, considering the judgments in B.K. Educational Services Private Limited vs. Parag Gupta and Associates and Sagar Sharma vs. Phoenix ARC Pvt. Ltd. The Tribunal had to determine whether the application filed by the Financial Creditor was within the prescribed limitation period. 4. Validity of the Default Date and Its Impact on the Limitation Period: The date of default is critical in determining the limitation period. The Appellant argued that the default occurred before 31st December 2014, making the application filed on 23rd July 2018 time-barred. The Tribunal referenced several Supreme Court judgments, including Gaurav Hargovindbhai Dave and Jignesh Shah, to establish that the limitation period begins from the date of default, which was 31st January 2010 in this case. 5. Applicability of Article 137 of the Limitation Act, 1963: The Tribunal applied Article 137 of the Limitation Act, 1963, which prescribes a three-year limitation period for filing applications under Sections 7 and 9 of the IBC. The Tribunal concluded that the application filed by the Financial Creditor was beyond the three-year limitation period, as the default date was 31st January 2010, and the application was filed on 23rd July 2018. 6. Release from the Moratorium and Functioning of the Corporate Debtor: Given the findings that the application was barred by limitation, the Tribunal set aside the Impugned Order dated 14th December 2018. The Corporate Debtor was released from all rigours of the moratorium and allowed to function through its Board of Directors. The Interim Resolution Professional (IRP) was instructed to hand over the assets and records of the Corporate Debtor to its Board of Directors and to intimate the fees and costs incurred during the CIRP to the Financial Creditor. In conclusion, the application filed under Section 7 of the IBC by the Financial Creditor was dismissed as time-barred, and the Corporate Debtor was allowed to resume its operations through its Board of Directors.
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