NCLAT (2020.07.16) in Monotrone Leasing Private Limited Vs. PM Cold Storage Private Limited [Company Appeal (AT) (Insolvency) No. 99 of 2020] held that;
We are bound to emphasize that a presumption cannot be drawn merely on the basis that a company, being solvent, cannot commit any default. As observed in financial and economic parlance, the inability to pay-off debts and committing default are two different aspects which are required to be adjudged on equally different parameters. Inability to pay debt has no relevance for admitting or rejecting an application for initiation of CIRP under the IBC.
Given the law laid down in Swiss Ribbon case (supra), it becomes clear that rather than the "inability to pay debts", it is the "determination of default" that is relevant for allowing or disallowing an Application filed under Section 7, 9 or 10 of IBC. The said shift enables the Financial Creditor to prove by solid documentary evidence, that there was an obligation to pay the debt and that the debtor has failed to fulfill its obligation. Therefore, to allow the application under Section 7, it is not relevant to see the inability of the Corporate Debtor to pay the debt.
Excerpts of the order;
# 18. The above finding of the Adjudicating Authority shows that it has drawn adverse inference against the Financial Creditor on account of non-submission of documents required for obtaining a loan from an NBFC. However, the Adjudicating Authority is expected to admit or reject an application for initiation of CIRP solely on the basis of parameters laid down under Sections 7, 9 or Sec 10 of IBC.
# 19. It is relevant to note that Hon’ble the Supreme Court of India in case of Innoventive Industries Ltd. v. ICICI Bank, (2018) 1 SCC 407, has laid down the guiding principles to admit or reject an application filed under Section 7 of the IBC. ………... In the above case, Hon'ble the Supreme Court of India has held that, to admit an application filed under Section 7 of IBC, the Adjudicating Authority is to be satisfied that a default has occurred; that the Corporate Debtor is entitled to point out that a default has not occurred in the sense that the "debt", which may also include a disputed claim, is not due. A debt may not be due if it is not payable in law or in fact. The moment the Adjudicating Authority is satisfied that a default has occurred, the Application must be admitted unless it is incomplete.
# 20. Therefore, it is clear that financial debt of Rs.25,00,000/- (Rupees Twenty Five Lakh Only) was owed by the Corporate Debtor, which was payable with interest @ 15% and the Corporate Debtor defaulted in making the payment. The application filed by the Appellant / Financial Creditor under Section 7 of the Insolvency & Bankruptcy Code, read with Rule 4 of the Adjudicating Authority Rules, is complete. In the circumstances, it is clear that the observation of the Adjudicating Authority is sans any evidence.
# 21. One of the grounds of rejection taken by the Adjudicating Authority is that the Corporate Debtor, being a solvent company, will not take risk to enter into insolvency proceedings under IBC as the financial statement of the Corporate Debtor in Financial Year ending March 2017 depicts revenue from operation, in the Corporate Debtors’ account as Rs.34,13,351/- and a balance of more than Rs.25,00,000/- (Rupees Twenty Five Lakh Only).
22. We are bound to emphasize that a presumption cannot be drawn merely on the basis that a company, being solvent, cannot commit any default. As observed in financial and economic parlance, the inability to pay-off debts and committing default are two different aspects which are required to be adjudged on equally different parameters. Inability to pay debt has no relevance for admitting or rejecting an application for initiation of CIRP under the IBC.
# 23. As held by Hon’ble the Supreme Court of India in Swiss Ribbons (P) Ltd. v. Union of India, (2019) 4 SCC 17 : 2019 SCC OnLine SC 73;
64. The trigger for a financial creditor's Application is non-payment of dues when they arise under loan agreements. It is for this reason that Section 433(e) of the Companies Act, 1956 has been repealed by the Code and a change in approach has been brought about. Legislative policy now is to move away from the concept of "inability to pay debts" to "determination of default". The said shift enables the financial Creditor to prove, based upon solid documentary evidence, that there was an obligation to pay the debt and that the debtor has failed in such obligation. Four policy reasons have been stated by the learned Solicitor General for this shift in legislative policy:
64.1. First is predictability and certainty.
64.2. Secondly, the paramount interest to be safeguarded is that of the corporate debtor and admission into the insolvency resolution process does not prejudice such interest but, in fact, protects it.
64.3. Thirdly, in a situation of financial stress, the cause of default is not relevant; protecting the economic interest of the corporate debtor is more relevant.
64.4. Fourthly, the trigger that would lead to liquidation can only be upon failure of the resolution process.
65. In this context, it is important to differentiate between "claim", "debt" and "default". Each of these terms is separately defined as follows
"3. Definitions.—In this Code, unless the context otherwise requires— ***
(6) "claim" means—
(a) a right to payment, whether or not such right is reduced to judgment, fixed, disputed, undisputed, legal, equitable, secured or unsecured;
(b) right to remedy for breach of contract under any law for the time being in force, if such breach gives rise to a right to payment, whether or not such right is reduced to judgment, fixed, matured, unmatured, disputed, undisputed, secured or unsecured; ***
(11) "debt" means a liability or obligation in respect of a claim which is due from any person and includes a financial debt and operational debt;
(12) "default" means non-payment of debt when whole or any part or installment of the amount of debt has become due and payable and is not paid by the debtor or the corporate debtor, as the case may be;
" Whereas a "claim" gives rise to a "debt" only when it becomes "due", a "default" occurs only when a "debt" becomes "due and payable" and is not paid by the debtor. It is for this reason that a financial creditor has to prove "default" as opposed to an operational creditor who merely "claims" a right to payment of a liability or obligation in respect of a debt which may be due. When this aspect is borne in mind, the differentiation in the triggering of insolvency resolution process by financial creditors under Section 7 and by operational creditors under Sections 8 and 9 of the Code becomes clear.”
# 24. Given the law laid down in Swiss Ribbon case (supra), it becomes clear that rather than the "inability to pay debts", it is the "determination of default" that is relevant for allowing or disallowing an Application filed under Section 7, 9 or 10 of IBC. The said shift enables the Financial Creditor to prove by solid documentary evidence, that there was an obligation to pay the debt and that the debtor has failed to fulfill its obligation. Therefore, to allow the application under Section 7, it is not relevant to see the inability of the Corporate Debtor to pay the debt.
# 29 Section 65 of the Code provides for penal action for initiating Insolvency Resolution Process with a fraudulent or malicious intent or for any purpose other than the resolution. However, the same cannot be construed to mean that if a petition is filed under Section 7, 9 or 10 of the Code without any malicious or fraudulent intent, then also such a petition can be rejected by the Adjudicating Authority on the ground that the intent of the Applicant/Petitioner was not resolution for Corporate Insolvency Resolution Process. As the proceedings under IBC are summary in nature, it is difficult to determine the intent of the Applicant filing an application under Section 7, 9 or 10 of the Code unless shown explicitly by way of documentary evidence. This situation may arise in specific instances where a petition is filed under IBC specifically with a fraudulent or malicious intent.
-----------------------------------
No comments:
Post a Comment