2020 (11) TMI 671 - Tri - Insolvency and Bankruptcy

Appeal Dismissed: Lack of Privity, Financial Debt Failure

The Tribunal dismissed the appeal filed by the Applicant Bank under Section 42 of IBC, 2016, due to lack of privity of contract, failure to establish the ... Liquidation order - no privity of contract - financial debt - Applicant Bank has claimed that it has got absolute right to file claim Petition before the Liquidator and the said claim is squarely falling within the purview of 'financial debt' and alleged that the Liquidator has erroneously rejected the claim Petition on the ground that there is no privity of contract between 1st and 2nd Respondents - HELD THAT:- The Appellant Bank has filed its claim in relation to the dues pending from COGIL before the Liquidator of NOCL. However, COGIL had filed its claim before the Liquidator, which stood rejected and against the said order of rejection, no appeal seems to have been preferred by COGIL before this Tribunal. Since COGIL has filed its claim before the Liquidator of NOCL, it will not in any way entitle the Appellant Bank to make a claim in relation to the COGIL vis-avis the company under liquidation with the Liquidator of the NOCL. The recourse if at all can be only against the COGIL in relation to the debts owed to the Appellant and not against NOCL, unless the said company, namely NOCL has stood as a guarantor/surety to the loan and financial facilities by the Appellant to COGIL. From a careful perusal of the pleadings as contained in the Appeal nothing comes to the fore to the said effect. Further, it is also required to be seen, eventhough a valiant effort was made by the Learned Counsel for the Appellant to bring in the aspect of privity and proximity of NOCL to the debts of COGIL owed to the Appellant in relation to the aspect of security by way of mortgage of lands sub-let by NOCL to COGIL with the concurrence of SIPCOT of the leased portion, however even from the said angle, the 1st Respondent Company under liquidation through its Liquidator and its creditors cannot be bound in terms of Section 125 of the Companies Act, 1956 or under Section 77 of the Companies Act, 2013 in view of the absence of Registration of charge with the concerned Registrar of Companies in relation to the assets charged, even assuming if there is any, in the absence of any privity to the contract as between COGIL and the Appellant. It is seen that a charge of Equitable Mortgage by deposit of title deeds was created by COGIL in favour of the Appellant Bank in respect of the properties which were leased out by NOCL to COGIL. However, from the claim form filed in Form D by the Appellant Bank with the Liquidator on 10.01.2019, in relation to the details of debt incurred, it is stated that COGIL had availed term loan disbursed on 02.09.2011. In relation to dates giving rise to cause of action, if assuming if there is any, as against NOCL, nothing more has been specified as to when the debt of the Appellant Bank has become due and payable - Further, from the records, it is evident that the Appellant Bank has relied on the letter of rejection of the Liquidator dated 11.05.2020. As per Section 42 of IBC, 2016, an Appeal against the order of Liquidator has to be filed within a period of 14 days from the date of decision of the Liquidator. Apparently, it is seen that the Appellant Bank has filed the present Appeal via email before the Registry of this Tribunal on 11.06.2020 and there has been a delay of 17 days on the part of the Appellant Bank in filing the present Appeal before this Tribunal and also it is evident from the records that no Application seeking for condonation of delay has been filed by the Appellant Bank before this Tribunal. In absence of any specific Application seeking for condonation of delay having been filed by the Applicant in approaching this Tribunal by way of an Appeal against the Order of rejection of its claim by the Liquidator beyond the prescribed period of 14 days - The Appeal as filed by the Appellant Bank under Section 42 of IBC, 2016 is liable to be dismissed. Appeal dismissed. Issues Involved:1. Rejection of claim by the Liquidator.2. Privity of contract between the parties.3. Financial debt and creditor status under IBC, 2016.4. Limitation period for filing an appeal.5. Delay in filing the appeal and condonation of delay.Detailed Analysis:1. Rejection of Claim by the Liquidator:The Applicant Bank filed a claim for Rs. 124,02,44,265/- with the Liquidator of M/s. Nagarjuna Oil Corporation Limited (NOCL) under Regulation 18 of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016. The Liquidator rejected this claim on the grounds that it was not tenable under law. The Applicant Bank argued that their claim arose from a term loan extended to M/s. Coastal Oil & Gas Infrastructure Private Limited (COGIL), a Special Purpose Vehicle (SPV) promoted by NOCL and M/s. Abir Infrastructure Private Limited.2. Privity of Contract Between the Parties:The Liquidator contended that NOCL was not a party to the contracts through which the credit facility was extended to COGIL by the Applicant Bank. Therefore, there was no privity of contract between the Applicant and NOCL regarding the claims. The Tribunal noted that the Applicant Bank's claim was based on transactions involving COGIL, and since COGIL had not appealed the Liquidator's rejection, the Applicant Bank could not claim against NOCL without evidence of NOCL acting as a guarantor or surety for COGIL's debts.3. Financial Debt and Creditor Status Under IBC, 2016:The Applicant Bank argued that their claim should be considered a 'financial debt' under IBC, 2016, and they should be treated as a 'financial creditor.' The Liquidator countered that the claim did not satisfy the requirements of Section 5(8) of IBC, 2016, and there was no direct contractual obligation between the Applicant and NOCL. The Tribunal agreed with the Liquidator, stating that the absence of a registered charge with the Registrar of Companies (RoC) further invalidated the claim.4. Limitation Period for Filing an Appeal:The Tribunal emphasized the importance of the limitation period, citing the Hon'ble NCLAT's decision in C.R. Badrinath -Vs- Eight Capital India (M) Limited & Anr., which held that the issue of limitation could be raised at any stage. The Tribunal found that the Applicant Bank's claim was barred by limitation, as there was no evidence of a demand for repayment from NOCL or COGIL within the prescribed period.5. Delay in Filing the Appeal and Condonation of Delay:The Tribunal noted that the Applicant Bank filed the appeal 17 days late and did not submit an application for condonation of delay. Citing the Supreme Court's decision in Gaurar Hargovindbhai Dave -Vs- Asset Reconstruction Company (I) Ltd. & Another, the Tribunal reiterated that 'there is no equity about limitation' and dismissed the appeal due to the delay.Conclusion:The Tribunal dismissed the appeal filed by the Applicant Bank under Section 42 of IBC, 2016, on multiple grounds, including lack of privity of contract, failure to establish the claim as a financial debt, the claim being barred by limitation, and the delay in filing the appeal without seeking condonation.