9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2020 (12) TMI 60 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - person authorised to file application - time limitation - principles of res-judicata - default on the part of Corporate Debtor or not. Whether the Application has been filed by an Authorized person? - HELD THAT - This Tribunal found that the Chief Manager of the Financial Creditor is competent to file this Application and the objection raised by the Corporate Debtor is merely incongruous, and therefore, holds no water. Moreover, the Chief Manager of the Financial Creditor had signed the application as an authorised person of the Financial Creditor in the specific authorization to file the Insolvency Application before this Bench. Moreover, since the amalgamation of the Banks were carried out by order of the Government of India, the question of signing the Application by the Union Bank of India officers will not arise. Hence, the technical objection raised on the ground of maintainability rejected. Whether this Application is barred by the law of limitation? - HELD THAT - The existence of debt and default is reasonably established by the Financial Creditor as a major constituent for admission of a petition under Section 7(4) of the I B Code.To get further clarity on this issue, this Tribunal had gone through Annexures A41, A44, A45 and found that the OA No. 407/2012 was filed before the DRT within a period of 3 years, after the accounts were classified as NPA on 31.12.2010, wherein the Corporate Debtor had admitted the financial facilities availed and the debt due. Before that, SARFAESI Demand Notice dated 08.11.2011 was issued to the Corporate Debtor, which resulted in filing SA No. 104/2012 before the Debts Recovery Tribunal by the Corporate Debtor - the claim is not barred by law of limitation as contended by the Corporate Debtor. Whether the Application is bad for non-joinder of necessary parties and hit by res judicata? - HELD THAT - This Tribunal is not agreeable with the submissions made by the Corporate Debtor, that the Application is bad for non-joinder of necessary parties and that application is hit by res-judicata. Those contentions are made without any application of mind as those defences are not applicable to IBC proceedings for the reason that the provisions of the Code of Civil Procedure are not applicable to IBC proceedings. Insolvency proceedings against Corporate Debtor can be initiated only under the provisions of IBC and not by any other statute. As such invocation of res judicata seems only an ignorance of the provisions of law. Insolvency proceedings can be initiated even against the guarantor alone even before initiating action against the borrower - there is no bar under the statute for initiating two separate Applications simultaneously against the borrower and the guarantor. Whether there is default on the part of the Corporate Debtor and whether there is scope for initiation of Corporate Insolvency Resolution Process against the Corporate Debtor? - HELD THAT - This Tribunal found that this is a fit case to initiate CIRP against the Corporate Debtor as there is default on the part of Corporate Debtor in owning their commitment under the provision of IBC to the Financial Creditor and that the Financial Creditor approached this Tribunal within the period prescribed under the IBC - This application is filed by the Financial Creditor under the Insolvency and Bankruptcy Code, 2016 for initiation of Corporate Insolvency Resolution Process against the Corporate Debtor to protect the interests of the stakeholders. Application admitted - moratorium declared.
Issues Involved:
1. Authorization of the person filing the application. 2. Limitation period for filing the application. 3. Non-joinder of necessary parties and res judicata. 4. Default by the Corporate Debtor and initiation of Corporate Insolvency Resolution Process (CIRP). Issue-wise Detailed Analysis: 1. Authorization of the Person Filing the Application: The Tribunal examined whether the Chief Manager of the Financial Creditor was competent to file the application. It was found that the Chief Manager was authorized to sign and file the application. The objection raised by the Corporate Debtor was deemed incongruous and rejected. The amalgamation of the banks was carried out by the Government of India, and thus, the signing by Union Bank of India officers was not questioned. Hence, the technical objection regarding maintainability was dismissed. 2. Limitation Period for Filing the Application: The Corporate Debtor argued that the application was barred by limitation, citing various dates when the loan account was declared as a Non-Performing Asset (NPA). The Financial Creditor countered that the application was filed within the limitation period, supported by acknowledgments of debt and admissions of liability by the Corporate Debtor. The Tribunal noted that the Financial Creditor had initiated proceedings within three years of the account being classified as NPA and had issued SARFAESI Demand Notices. The Tribunal referred to the Supreme Court decision in Mobilox Innovations Private Ltd Vs Kirusa Software Private Ltd, which clarified that disputes must be acknowledged to stave off the bankruptcy process. Consequently, the Tribunal found the claim was not barred by the law of limitation. 3. Non-joinder of Necessary Parties and Res Judicata: The Corporate Debtor contended that the application was bad for non-joinder of necessary parties and was hit by res judicata. The Tribunal rejected these contentions, stating that such defenses were not applicable to Insolvency and Bankruptcy Code (IBC) proceedings. The Tribunal referred to the NCLAT decision in Dr. Vishnukumar Agarwal Vs Piramal Enterprises Ltd, which allowed for simultaneous applications against the borrower and guarantor. The Tribunal concluded that there was no bar under the statute for initiating separate applications against the borrower and the guarantor. 4. Default by the Corporate Debtor and Initiation of CIRP: The Tribunal found that the Corporate Debtor had defaulted in repayment of the loan amount and that the Financial Creditor had reasonably established the existence of debt and default. The application was filed within the prescribed period under the IBC. The Tribunal admitted the application for initiation of CIRP against the Corporate Debtor to protect the interests of the stakeholders. Order: The Tribunal appointed Mr. K. Easwara Pillai as the Interim Resolution Professional (IRP) and directed him to submit the Authorization for Assignment within two days. The provisions of the Moratorium under Section 14 of the Code were made operative, prohibiting the institution of any suit before a Court of Law and the transfer or encumbrance of any assets of the Debtor. The IRP was directed to carry out the Public Announcement of the initiation of CIRP and to perform duties under Sections 15 and 18 of the Code. The commencement of CIRP was effective from the date of the order of admission. The Registry was directed to communicate the order to the Financial Creditor, Corporate Debtor, and IRP. Conclusion: The application for initiation of CIRP against the Corporate Debtor was admitted, and the necessary orders for the appointment of the IRP and the declaration of the Moratorium were issued. The Tribunal ensured compliance with the provisions of the IBC to protect the interests of the stakeholders.
|
