2025 (2) TMI 271 - AT - IBC

Admission of application filed u/s 7 of the Insolvency and Bankruptcy Code 2016 - proper service of notice or not - Notice served through two newspaper publications - declaration of the loan as a non-performing asset (NPA) by the Financial Creditor - time limitation - HELD THAT - It is found that at no stage the Corporate Debtor had denied its liability to pay to the Respondent bank. The feeble argument raised is that the publication of notice was in Kolkata editions of the newspaper which are not readily available in Jalpaiguri where the registered office of the Corporate Debtor is situated. However it is found that advance notice of the application has been served on the Corporate Debtor. Further the notice issued by the Registry through Speed Post and Email has been duly served upon the Corporate Debtor. The Corporate Debtor was admittedly served on earlier occasions and since none appeared on its behalf it was only as an abundant caution the service by publication was ordered. Now the Corporate Debtor cannot say that earlier service was invalid or withdrawn because of reservice being ordered. It is also found that the debt and default are recorded in the records of the Information Utility (NeSL). The debt has been authenticated by NeSL with the description default submission indicating that no response had come from the Corporate Debtor. Apparently it is the Corporate Debtor who has chosen not to join the proceedings. Even during the appeal proceedings on query the Corporate Debtor was unable to commit to the repayment of debt. This case meets all the ingredients required for admission under Section 7 of the IBC 2016 including existence of debt failure to repay the debt leading to default and application filed under Section 7 within the limitation. Conclusion - The service of notice was proper the NPA declaration was valid and the initiation of CIRP under Section 7 was justified leading to the dismissal of the appeal. There are no reason to interfere in the orders of Ld. NCLT in admitting the Corporate Debtor under CIRP - appeal dismissed.

ISSUES PRESENTED and CONSIDERED

The core issues considered in this judgment are:

Whether the service of notice to the Corporate Debtor was proper and in compliance with the legal requirements under the NCLT Rules, 2016.
Whether the declaration of the loan as a non-performing asset (NPA) by the Financial Creditor was valid, especially considering the timing of the loan disbursement and the subsequent NPA declaration.
Whether the Corporate Debtor's appeal against the initiation of the Corporate Insolvency Resolution Process (CIRP) under Section 7 of the Insolvency and Bankruptcy Code, 2016, holds merit.

ISSUE-WISE DETAILED ANALYSIS

Service of Notice to the Corporate Debtor

Relevant Legal Framework and Precedents: Rule 35 of the NCLT Rules, 2016, outlines the requirements for advertisement and service of notice for applications, including the necessity of publication in vernacular and English newspapers circulated in the district where the company's registered office is located.
Court's Interpretation and Reasoning: The Tribunal considered the service of notice through Speed Post and Email as compliant with the rules. The additional publication in newspapers was deemed an extra precautionary measure.
Key Evidence and Findings: The Tribunal found evidence of service through Speed Post and Email, supported by tracking information and affidavits. The Corporate Debtor's registered email was used for communication, and the emails were opened by the recipient.
Application of Law to Facts: The Tribunal applied Rule 35 and found that the service requirements were met, dismissing the Corporate Debtor's argument about improper service due to the newspaper editions not being circulated in Jalpaiguri.
Treatment of Competing Arguments: The Corporate Debtor's claim of improper service was countered by evidence of service through multiple channels, leading the Tribunal to reject the argument.
Conclusions: The Tribunal concluded that the service of notice was properly executed, and the Corporate Debtor's claim of being unaware of the proceedings was unfounded.

Declaration of Loan as Non-Performing Asset (NPA)

Relevant Legal Framework and Precedents: The classification of a loan as an NPA is governed by banking regulations, which allow creditors to declare a loan as NPA based on default and non-repayment criteria.
Court's Interpretation and Reasoning: The Tribunal found that the loan was declared as NPA due to the Corporate Debtor's failure to regularize the loan and its utilization of new disbursements to cover previous defaults.
Key Evidence and Findings: The Tribunal noted that the Corporate Debtor had not contested the default status during earlier proceedings or in the records maintained by NeSL.
Application of Law to Facts: The Tribunal applied the banking regulations to the facts, noting the Corporate Debtor's repeated defaults and the lack of dispute over the NPA status.
Treatment of Competing Arguments: The Corporate Debtor's argument regarding the timing of the NPA declaration was dismissed due to the clear evidence of default and the absence of any dispute raised in previous communications.
Conclusions: The Tribunal upheld the validity of the NPA declaration, finding no merit in the Corporate Debtor's argument.

Merit of the Appeal Against CIRP Initiation

Relevant Legal Framework and Precedents: Section 7 of the Insolvency and Bankruptcy Code, 2016, allows a financial creditor to initiate CIRP upon default by the corporate debtor.
Court's Interpretation and Reasoning: The Tribunal found that all the conditions for initiating CIRP under Section 7 were met, including the existence of debt, default, and the application being within the limitation period.
Key Evidence and Findings: The Tribunal noted the undisputed amount owed by the Corporate Debtor and the lack of any substantial defense against the CIRP initiation.
Application of Law to Facts: The Tribunal applied Section 7 to the facts, confirming the existence of a default and the appropriateness of the CIRP initiation.
Treatment of Competing Arguments: The Corporate Debtor's arguments were found to lack substance, particularly due to the absence of any commitment to repay the debt.
Conclusions: The Tribunal dismissed the appeal, affirming the initiation of CIRP and finding no reason to interfere with the NCLT's order.

SIGNIFICANT HOLDINGS

Preserve Verbatim Quotes of Crucial Legal Reasoning: "This case meets all the ingredients required for admission under Section 7 of the IBC, 2016, including existence of debt, failure to repay the debt leading to default and application filed under Section 7 within the limitation."
Core Principles Established: The judgment reinforces the principle that proper service of notice through multiple channels satisfies legal requirements and that a debtor's failure to contest default in prior communications undermines their defense.
Final Determinations on Each Issue: The Tribunal determined that the service of notice was proper, the NPA declaration was valid, and the initiation of CIRP under Section 7 was justified, leading to the dismissal of the appeal.

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