2022 (9) TMI 631 - AT - Insolvency and Bankruptcy

Appellate Tribunal overturns NCLT order, releases Mack Star from insolvency, emphasizing asset maximization over non-financial debt recovery.

The Appellate Tribunal allowed the appeals, set aside the NCLT's order admitting the Section 7 Application, and closed the proceedings. The Corporate ... Initiation of CIRP - Assignment of debts - Financial Creditors - NCLT admitted the application - disputes regarding the term-loans by engaging in settlement discussions with Mr. Rana Kapoor and other HDIL Promoters - illegal attachment of loans - HELD THAT:- Merely because there is a ‘debt’ and a ‘default’ it cannot be construed that a Section 7 Application is required to be admitted. The Adjudicating Authority ought to have examined the ‘nature of these financial transactions’ having regard to the Investigation Reports which were filed by the Appellant herein, the violation of the Articles of Association and assessed whether the transactions were collusive in nature or not and used its discretion whether to admit such an Application or not, keeping in view the scope and objective of the Code. It is appropriate at this juncture, to rely on the Judgement of the Hon’ble Supreme Court in M/S EMBASSY PROPERTY DEVELOPMENTS PVT. LTD. VERSUS STATE OF KARNATAKA & OTHERS [2019 (12) TMI 188 - SUPREME COURT], in which the Hon’ble Apex Court has clearly noted that the Adjudicating Authority has the jurisdiction to enquire into allegations of fraud when there is a prima facie case of fraudulent initiation of CIRP. The Assignment to Suraksha is not a bona fide one, peculiar to the facts of the attendant case and the loan amounts do not satisfy the essential requisites of a ‘Financial Debt’ as envisaged under the Code. This Tribunal observed that the fundamental scope & objective of IBC is ‘Resolution’ and ‘Maximization of Assets’ and not ‘Recovery’ of loans which do not strictly fall within the definition of ‘Financial Debt’ as defined under Section 5(8) of the Code. Appeal allowed. Issues Involved:1. Legitimacy of the loans disbursed by Yes Bank to Mack Star Marketing Private Limited.2. Allegations of fraud and collusion between Yes Bank officials and HDIL promoters.3. Maintainability of the Section 7 Insolvency Application under the Insolvency and Bankruptcy Code, 2016.4. Validity of the assignment of loans from Yes Bank to Suraksha Asset Reconstruction Limited.5. Procedural defects in the nomination of the Interim Resolution Professional (IRP).Detailed Analysis:1. Legitimacy of the Loans:The National Company Law Tribunal (NCLT) admitted the Section 7 Application filed by Suraksha Asset Reconstruction Limited against Mack Star Marketing Private Limited, citing the existence of financial debt and default. The Corporate Debtor, Mack Star, admitted the debt but argued that the loan was a sham and that the promoters/shareholders had siphoned off the loan amount to various HDIL entities. The NCLT held that the alleged misuse of the term loans does not negate the existence of financial debt and the right of the financial creditor to recover the loans.2. Allegations of Fraud and Collusion:The Appellant, Ocean Deity Investment Holdings Limited, argued that the loans were fraudulent and part of a criminal conspiracy between Yes Bank officials and HDIL promoters. The Central Bureau of Investigation (CBI) and Enforcement Directorate (ED) had lodged complaints and concluded that there was a criminal conspiracy to cheat Mack Star and Ocean Deity. The funds disbursed by Yes Bank in Mack Star's name were immediately routed back to Yes Bank to repay HDIL's loans, which were on the verge of becoming non-performing assets (NPAs). The NCLT ignored these findings while admitting the Section 7 Application.3. Maintainability of the Section 7 Insolvency Application:Suraksha Asset Reconstruction Limited, as the assignee of the loans from Yes Bank, filed the Section 7 Application against Mack Star. The Appellant argued that the loans were vitiated with fraud and hence not maintainable. The NCLT dismissed this argument, stating that the existence of financial debt and default was sufficient for admitting the application. However, the Appellate Tribunal noted that the NCLT failed to consider the findings of the CBI and ED, which indicated that the loans were part of a fraudulent scheme.4. Validity of the Assignment of Loans:The Appellant contended that the assignment of loans from Yes Bank to Suraksha was not bona fide and was part of the fraudulent scheme. Yes Bank continued to engage in settlement discussions with Mack Star even after the assignment, indicating that the assignment was a sham. The Appellate Tribunal found that the assignment was indeed not bona fide and that the loans did not satisfy the essential requisites of financial debt under Section 5(8) of the Insolvency and Bankruptcy Code, 2016.5. Procedural Defects in the Nomination of the IRP:The Appellant argued that the Section 7 Application was defective due to procedural issues in the nomination of the IRP. The initially nominated IRP, Mr. Tikmani, had resigned, and there was a gap in the nomination of a new IRP. The NCLT appointed Mr. Avinash Shukla as the new IRP after the admission of the Section 7 Application. The Appellate Tribunal did not address this issue in detail, as the main grounds for setting aside the NCLT's order were the fraudulent nature of the loans and the invalidity of the assignment.Conclusion:The Appellate Tribunal allowed the appeals, set aside the NCLT's order admitting the Section 7 Application, and closed the proceedings. The Corporate Debtor, Mack Star, was released from all the rigours of law and allowed to function independently through its Board of Directors. The Tribunal observed that the fundamental scope and objective of the Insolvency and Bankruptcy Code is resolution and maximization of assets, not the recovery of loans that do not fall within the definition of financial debt.