2022 (9) TMI 1294 - AT - Insolvency and Bankruptcy

Seeking direction to the present Appellants to jointly and severally pay the Corporate Debtor the principal amount outstanding alongwith interest as claimed by the Resolution Professional - Sections 60(5) and 25 of the IBC - whether an amount of Rs. 50 lakh is outstanding for recovery from Appellant No. 1 Company and payable to the Corporate Debtor? - lifting of corporate veil - time limitation - HELD THAT - After proper examination of records and financial statements of the Corporate Debtor and after due diligence, the RP has concluded from the ledger account of Appellant No. 1 company as maintained in the books of account of the Corporate Debtor as placed as at page 178 of the Appeal Paper Book (APB) that an amount of Rs. 50 lakhs was outstanding and due for payment. Following this discovery, we find that the RP/Respondent methodically took up the matter, as obligated under the IBC, by sending emails/letters at regular intervals to the Appellant No. 1 company including the statutory auditor as well as to Appellants No. 2 to 4 being Directors of Appellant No. 1 company to make good the outstanding amount along with interest @18% per annum. There are no reasons to disagree with the findings of the RP/Respondent that the contents of the SPA do not indicate any role of the Corporate Debtor in the entire transaction - in the absence of any established link of the Corporate Debtor with this share related transaction between Appellant No. 1 and the SRS Ltd., the Adjudicating Authority has concurred in the findings of the RP/Respondent that the amount of Rs. 50 lakh remains outstanding and recoverable from the Appellant No. 1 Company and other Appellants jointly and severally. Whether the recoverable amount of Rs. 50 lakhs is barred by limitation? - HELD THAT - The claim that the share purchase transaction between the Appellant No. 1 company and SRS Limited amounted to recovery of the said sum lacks credence in the absence of any documentary substantiation. It is also an uncontested fact that there is no loan agreement between the Appellant No. 1 and the Corporate Debtor in this regard. Furthermore, nothing has been placed on record to indicate that this amount had to be repaid back within any specific time-line. In other words, the said sum was payable on demand anytime. Given the above, we hold that the applicability of limitation period in the present case does not stand to reason. Once the Corporate Debtor has come under CIRP, the logical corollary is that all actionable claims of the Corporate Debtor must be brought back into the corpus kitty of the Corporate Debtor - the RP/Respondent has rightly issued the demand notice on 29.04.2019 and 09.05.2019 to the Appellant No. 1 company as the said amount is due and payable from it. Whether Appellant No. 1 company is alone liable for the recovery of the outstanding advance or the recovery can be jointly and severally sought against Appellant No.2, 3 and 4? - HELD THAT - The Adjudicating Authority while disregarding the separate legal entity of the Appellant No. 1 company has also not recorded the reasons for holding the individual members jointly and severally liable for the obligations of the corporate entity. The Adjudicating Authority is no doubt entitled to lift the veil of the corporate entity but in doing so must delineate the reasons for piercing the corporate veil and show as to how and to what extent the individual members are liable. This not having been done by the Adjudicating Authority, we are of the considered opinion that the outstanding amount alongwith interest is recoverable from Appellant No. 1 company and not jointly and severally at this stage. The Adjudicating Authority has not committed any error in holding that an outstanding principal amount of Rs. 50 lakhs along with 18% interest is due and recoverable by the Resolution Professional and to that extent affirm the impugned order - this amount alongwith interest is recoverable only from Appellant No. 1 company and therefore set aside that part of the impugned order which held that this amount is jointly and severally recoverable from Appellants no. 1 to 3 - Appeal allowed in part.

Summary

Issues Involved:
1. Whether Rs. 50 lakh is outstanding and recoverable from Appellant No. 1 Company.
2. Whether the claim of Rs. 50 lakh is barred by limitation.
3. Whether the recovery of Rs. 50 lakh can be sought jointly and severally against Appellant Nos. 2, 3, and 4.

Detailed Analysis:

Issue 1: Whether Rs. 50 lakh is outstanding and recoverable from Appellant No. 1 Company.

The Tribunal examined the records and financial statements of the Corporate Debtor and found that Rs. 50 lakh was outstanding and due for payment from Appellant No. 1 Company. The Resolution Professional (RP) had sent multiple communications to the Appellant No. 1 Company and its Directors to recover the amount along with 18% interest per annum. Appellant No. 3 admitted receiving Rs. 50 lakh from the Corporate Debtor but claimed it was used for a share purchase transaction with SRS Ltd. However, the Share Purchase Agreement (SPA) did not mention the Corporate Debtor, and there was no authorization for using the advance for the share purchase. The Tribunal agreed with the RP's findings that the Rs. 50 lakh remained outstanding and recoverable from Appellant No. 1 Company.

Issue 2: Whether the claim of Rs. 50 lakh is barred by limitation.

The Appellants argued that the claim was barred by limitation as the three-year period expired on 17.02.2019. However, the Tribunal found that there was no specific timeline for repayment, making the amount payable on demand. The RP issued demand notices in April and May 2019, within the Corporate Insolvency Resolution Process (CIRP) timeline, making the claim valid. The Tribunal held that the limitation period did not apply in this case, as the actionable claims must be brought back into the Corporate Debtor's corpus during CIRP.

Issue 3: Whether the recovery of Rs. 50 lakh can be sought jointly and severally against Appellant Nos. 2, 3, and 4.

The Tribunal noted that Appellant No. 1 Company is a separate legal entity from its Directors. The Adjudicating Authority did not provide reasons for holding the individual Directors jointly and severally liable. The Tribunal emphasized that liability cannot be automatically fastened on individual Directors without piercing the corporate veil and providing reasons. Therefore, the Tribunal held that the outstanding amount along with interest is recoverable only from Appellant No. 1 Company and not jointly and severally from Appellant Nos. 2, 3, and 4.

Conclusion:

The Tribunal affirmed the Adjudicating Authority's decision that Rs. 50 lakh along with 18% interest is due and recoverable by the Resolution Professional. However, it set aside the part of the order that held the amount recoverable jointly and severally from Appellant Nos. 1 to 3. The Tribunal directed Appellant No. 1 Company to pay the amount along with interest within four weeks from the date of the order. The appeal was partly allowed and disposed of with no costs.