2025 (7) TMI 1146 - AT - IBC

NCLAT allows Section 7 IBC appeal despite Companies Act Section 186 loan violation

Pancham Studios Pvt. Ltd. Versus Konark Aquatics & Exports Pvt. Ltd.

The NCLAT Principal Bench allowed an appeal challenging dismissal of a Section 7 IBC application. The Tribunal had initially rejected the application ... Determination of the application filed under Section 7 of IBC - loan given in violation of section 186 of the Act - compliance with the requirements of Section 7(3)(a) of the Code or not - HELD THAT:- There is no dispute to the fact that the amount in question is continuously reflected in the balance sheet of the Respondent from 2016 -17 to 2020-21 in schedule 3A as unsecured loan without any caveat, therefore, such entry without any qualification / caveat is acknowledgment of debt by the CD as unsecured loan is having commercial effect of borrowing. But in no case the debt advanced by the Company to a corporate body can be held to be unrecoverable only because of the reason that there was a irregularity in advancement of the loan which became a debt to a third party or in other words the CD cannot take the shelter of Section 186 of the Act to deny its liability to return the amount taken by it being a corporate body which is due and payable. The decision in the case of M Sai Eswara Swamy [2021 (9) TMI 1578 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI PRINCIPAL BENCH] is not applicable to the present controversy because in that case the basic issue was as to whether the company petition was filed by the person without having the authority of the board through resolution. In this regard, the finding has been recorded in the said case is that “thus, it is affirmed the finding of Ld. Tribunal that there is no board resolution authorising the petitioner to file the petition, therefore, the petition is not maintainable”. It has also held that with the aforesaid we are of the view that the Tribunal has rightly held that the petition is not maintainable, therefore, no interference is called for in the impugned order. The said appeal was dismissed summarily and no reasoning was given in this regard that if there is violation of Section 186 then the CD can take the plea that the transaction has become void and is not liable to repay the same. The Appellant has already proved on record about the amount which was disbursed as it has not been disputed and that the said amount is a debt fully reflected in its balance sheet continuously as an unsecured loan and had not been paid despite the fact that repeated demands were made through five demand notices, therefore, it falls within the definition of default on the part of the Respondent. Hence, once the debt and default has been proved, therefore, the Tribunal has committed a patent error in dismissing the application filed under Section 7 of the Code - appeal allowed. ISSUES: Whether the amount of Rs. 4,43,50,000/- advanced as an interest-free loan qualifies as a 'financial debt' under the Insolvency and Bankruptcy Code, 2016.Whether a loan advanced in violation of Section 186 of the Companies Act, 2013 is void and unenforceable against the corporate debtor.Whether non-compliance with Section 7(3)(a) of the Insolvency and Bankruptcy Code, 2016, specifically relating to filing record of default with the information utility under Regulation 20(1A) of the IBBI (Information Utilities) Regulations, 2017, mandates dismissal of the insolvency application.Whether the absence of a formal agreement or due date for repayment negates the existence of a financial debt. RULINGS / HOLDINGS: On the nature of the amount advanced: The Tribunal initially held that the amount was not a financial debt as 'no loan was given by the petitioner to the respondent company' and that the amount was payable to the managing director as part of a family arrangement, lacking elements of a commercial transaction. However, this Court held that the amount was 'continuously reflected in the balance sheet ... as unsecured loan without any caveat,' constituting an 'acknowledgment of debt' and having the 'commercial effect of borrowing,' thereby qualifying as financial debt.On violation of Section 186 of the Companies Act, 2013: The Tribunal's finding that the loan was void and unenforceable due to violation of Section 186 was overturned. The Court held that Section 186(2) violations attract penal provisions but do not invalidate the debt vis-à-vis the corporate debtor, who 'cannot take the shelter of Section 186 of the Act to deny its liability to return the amount taken.' Thus, the loan remains recoverable despite procedural irregularities.On compliance with Section 7(3)(a) of the Code and Regulation 20(1A): The Tribunal erred in dismissing the application for failure to file record of default with the information utility. The Court clarified that Regulation 20(1A) cannot be read to mandate only record of default from the information utility and that other evidence of default as specified under Regulation 2A of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 and Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 is permissible.On the necessity of a formal written agreement or fixed due date: The Court held that 'existence of a formal agreement or financial contract is not necessary for establishing a financial debt,' relying on precedent that financial statements and other evidence suffice to prove debt. RATIONALE: The Court applied the statutory definition of 'financial debt' under the Insolvency and Bankruptcy Code, 2016, emphasizing that disbursement and commercial effect of borrowing are essential elements. The continuous reflection of the amount as unsecured loan in the corporate debtor's financial statements was held to be a sufficient acknowledgment of debt.Regarding Section 186 of the Companies Act, 2013, the Court distinguished between internal company governance violations and the enforceability of debt against a third-party corporate debtor, holding that violations attract penalties but do not render the loan void and unenforceable.The Court interpreted Regulation 20(1A) of the IBBI (Information Utilities) Regulations, 2017 harmoniously with Section 7(3)(a) of the Code and the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, rejecting a restrictive interpretation that would mandate dismissal of applications lacking record of default from the information utility alone.The Court relied on precedent affirming that a formal financial contract is not a mandatory prerequisite to establish financial debt, and that financial statements and other documentary evidence can suffice.The Court reaffirmed the principle from Innoventive Industries Ltd. that once default of a financial debt is established by evidence, the adjudicating authority must admit the insolvency application, notwithstanding disputes over the debt.No dissent or doctrinal shift was indicated; the Court's approach aligns with existing jurisprudence emphasizing substance over form in financial debt determination and procedural compliance under the Code.