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2024 Supreme(Online)(NCLT) 1536
NATIONAL COMPANY LAW TRIBUNAL
HON’BLE MR. HARNAM SINGH THAKUR, HON’BLE MR. SUBRATA KUMAR DASH, JJ
Intec Capital Ltd. – Appellant
Versus
Guava Softs Pvt. Ltd. – Respondent
CP (IB) No.231/Chd/Pb/2021
For the Appellants/Petitioners: None
For the Respondents:Mr. Iqbal Ratta, Advocate
The corporate insolvency resolution process cannot proceed if the application is time-barred and not filed by an authorized representative.
Headnote:(A) Insolvency and Bankruptcy Code, 2016 - Section 7 - Corporate Insolvency Resolution Process - The petitioner, a financial creditor, sought to initiate CIRP against the corporate debtor due to defaults in loan repayments, with a total outstanding of Rs. 7,02,70,698/-. The application was contested on grounds of being time-barred and not filed by an authorized person. (Paras 10, 11, 12, 14)
(B) Limitation Act, 1963 - The court examined the dates of default and the applicability of limitation which ended three years post the last transaction noted, irrespective of COVID-19 extensions. The absence of comprehensive documentation regarding defaults was noted. (Paras 11-13)
Facts of the case:
The petitioner extended a loan of Rs. 94,00,000/- to the respondent, who defaulted on repayments leading to loan recall. The petition was contested by claiming it was time-barred and not filed by a competent authority.
Findings of Court:
The petition was dismissed for being filed after the expiration of the limitation period and by an unauthorized individual. (Para 14)
Issues: Whether the application was filed within limitation, and the competency of the petitioner in filing the case.
Ratio Decidendi: The court ruled the application was time-barred based on the earliest date of default with regard to limitations and that the filing lacked proper authorizations, thus dismissed.
Result: Petition dismissed.
| Table of Content |
|---|
| 1. petition filed under ibc for debt recovery. (Para 1 , 2 , 3) |
| 2. examination of limitation period and filing validity. (Para 10 , 11) |
| 3. determination of proper authority for filing. (Para 12 , 13) |
| 4. outcome of dismissal for unauthorized and time-barred petition. (Para 14) |
JUDGMENT
The present petition has been filed under Section 7 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as ‘Code’) read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 by Intec Capital Ltd. (hereinafter referred to as ‘Petitioner/Financial Creditor’) to initiate the Corporate Insolvency Resolution Process (‘CIRP’) against Guava Softs Pvt. Ltd. (hereinafter referred to as ‘Respondent/Corporate Debtor’). The petition is signed by Mr. Chandan authorized by the Financial Creditor and the affidavit verifying the contents of the application is on pages 33 to 35 of the petition. A copy of the Authority Letter along with notification is attached as Annexure 3 of the petition.
2. The master data of the corporate debtor is stated to be filed as Annexure-2 of the petition. The Corporate Debtor is stated to be incorporated on 12.05.2006. The company has its registered address at2nd Floor, Sohan Palace, Opp BSNL Telephone Exchange, Mall Road Ludhiana PB 141001 IN. Therefore, the jurisdiction lies with this Bench of the Tribunal.
3. Brief facts raising to the present Company Petition which are narrated hereunder:
3.1 M/s Intec Capital Limited ('Intec'/'Financial Creditor'/ Applicant') is a Non-Banking Financial Company duly registered with Reserve Bank of India, engaged inter-alia in the business of providing financial facility.
3.2 M/s Guava Softs Pvt. Ltd. ('Corporate Debtor'/ 'Respondent'} is a company engaged in the business of providing information technology-based services including developing websites and dealing in domains. Its promoters/ directors/ shareholders approached the Financial Creditor for availing financial facilities, by making an application to the Financial Creditor.
3.3 Based on the documents and information given to the Financial Creditor and the confidence shown to repay the loan amount, the Financial Creditor approved the loan application of Corporate Debtor and issued the sanction letter dated 17.04.2013 for loan facility of Rs. 94,00,000 (ninety four lakhs only). Thereafter, the Corporate Debtor entered into Loan Agreement dated 25.04.2013 and various other transitional documents with the Financial Creditor.
3.4 That as per the Loan Agreement, the Financial Creditor had financed the loan on the terms i.e. Interest 14.24% Reducing ; Amount (INR) Rs 2,58,030 each in 48 installments ; First EMI & Last EMI - 16.05.2013 & 16.05.2017 ; Collateral Amount (INR) 28,20,000 ; Finance Charges Amount (INR) 1,16,180. Pursuant to the loan agreement and towards performance of the loan agreement, the Corporate Debtor duly handed over post dated cheques to the financial creditor towards the repayment of loan.As per the Loan Agreement certain assets were hypothecated to Financial Creditor; on which first and exclusive charges by way of hypothecation was created in the favour of Financial Creditor, which is as follows : -
| Sr.No. | Particulars | Amount |
| 1 | Raised Floor Model No. 40NAL | 76,146 |
| 2 | 2.84 Tr (Actual Capacity) Amico Model | 6, 15,268 |
| 3 | Poer Backup System, with all accessories. | 5,66,943 |
| 4 | 26 AH Battery | 1,49,962 |
| 5 | UTM hardware Appliance | 12,88,813 |
| 6 | Cisco 3925 | 3,09,750 |
| 7 | IBM Flex System | 64,57,500 |
| 8 | 25 KVA Solent DG Set | 3,15,000 |
3.5 As per the Loan Agreement and the letter executed by the Corporate Debtor for the Disbursement Instruction of the Loan Amount of Rs. 94,00,000/-, the loan was disbursed by the Financial Creditor vide cheque on different dates to various vendors of the Corporate Debtor and the Corporate Debtor itself. Details of Disbursement for Loan Account LNLUD00l13140002314 is as follows :-
| Sr. No. | Particulars | Date | Cheque No. | Amount Disbursed (INR) |
| 1 | Targus Technologies Pvt Ltd | 11/05/13 | 333802 | 15,00,000 |
| 2 | Tar | |||
