2018 (12) TMI 1310 - Tri - Insolvency and Bankruptcy

Shareholders & Guarantors Denied Intervention in Insolvency Proceedings

KKR Jupiter Investors Pte Ltd. (Intervener) Versus JBF Petrochemicals Ltd.

The tribunal held that the intervention application was not valid under Section 60(5) of the Insolvency and Bankruptcy Code (IBC) as the insolvency ... Initiation of Corporate Insolvency Resolution Process (CIRP) - satisfaction of default as occurred - intervention application has been filed against the financial creditor - Held that:- The third party (being an entity other than the financial creditor/corporate debtor) is not offered the right to be heard and/or to intervene in a proceeding initiated under Section 7 of the IB Code as affirmed by the Hon'ble Supreme Court in ICICI BANK & ANR. [2017 (9) TMI 58 - SUPREME COURT OF INDIA]. That from the aforesaid decision it is clear that the Adjudicating Authority is only to satisfy that the default has occurred and that the Corporate debtor is entitled to point out that the default has not been occurred in the sense that the debt is not due. That no other person has a right to be heard at the stage of admission of the application under Sections 7 and 9 of the IB Code including the shareholders or the personal guarantor etc. That in view of the facts and circumstances narrated above, it is clear that any application/proceeding under this provision can only be filed by or against the corporate debtor. That in the present case, the intervention application has been filed against the financial creditor. Furthermore, sub-section (c) of section 60(5) has no applicability at the stage of adjudication on admissibility of an application filed under Section 7 of IB Code as this sub-section pertains to questions of priorities, facts or law arising out of or in relation to the Insolvency Resolution or Liquidation proceedings of the corporate debtor. In the above facts and circumstances as discussed above, we are of the considered view that Intervention Application do not hold merits, deserves to be rejected and stands rejected accordingly. Issues Involved:1. Applicability of Section 60(5) of the Insolvency and Bankruptcy Code (IBC), 2016.2. Right of a third party to intervene in proceedings initiated under Section 7 of the IBC.3. Timeliness and relevance of the intervention application.Issue-wise Detailed Analysis:1. Applicability of Section 60(5) of the Insolvency and Bankruptcy Code (IBC), 2016:The applicant filed the intervention application under Section 60(5) of the IBC, 2016, which grants the National Company Law Tribunal (NCLT) jurisdiction to entertain or dispose of any application or proceeding by or against the corporate debtor or corporate person. The tribunal noted that Section 60(5)(c) pertains to questions of priorities or any question of law or facts arising out of or in relation to the insolvency resolution or liquidation proceedings of the corporate debtor. However, the tribunal clarified that this provision is applicable only when the insolvency resolution process has already been initiated. Since the proceedings under Section 7 of the IBC were still underway and the insolvency resolution process had not yet been initiated, the tribunal held that the intervener could not invoke Section 60(5)(c) to file the intervention application.2. Right of a Third Party to Intervene in Proceedings Initiated Under Section 7 of the IBC:The tribunal examined whether a third party, such as the applicant, has the right to intervene in proceedings initiated under Section 7 of the IBC. The tribunal referred to the judgment of the Hon'ble NCLAT in Axis Bank Ltd. v. Lotus Three Developments Ltd., which stated that the adjudicating authority's role at the stage of admission under Section 7 is limited to satisfying itself regarding the occurrence and existence of a default. It was emphasized that third parties, including shareholders or personal guarantors, have no right to be heard at this stage. The tribunal also cited the Supreme Court's decision in Innoventive Industries Ltd. v. ICICI, reinforcing that the adjudicating authority must admit the application if it is satisfied that a default has occurred, without considering inputs from third parties.3. Timeliness and Relevance of the Intervention Application:The respondent argued that the intervention application had become infructuous due to the expiry of the time period within which the applicant had proposed to effectuate the refinancing/settlement of debts owed to various creditors. The tribunal noted that the applicant's binding commitment letter had prescribed an outer time limit of September 30, 2018, to implement the refinancing proposal. Since this deadline had passed, the tribunal found that the intervention application was no longer relevant or timely.Conclusion:Based on the detailed analysis, the tribunal concluded that the intervention application did not hold merit and was not tenable under the provisions of Section 60(5) of the IBC. The tribunal reiterated that third parties do not have the right to intervene in proceedings initiated under Section 7 of the IBC at the stage of admission. Consequently, the intervention application was rejected, and no order as to costs was made.