In Neelkanth Township &
Construction Private Limited v. Urban Infrastructure Trustees Limited [2017] 140 CLA, an appeal was filed by a corporate debtor (Neelkanth Township
& Construction Pvt. Ltd.) against the order of the National Company Law
Tribunal (“NCLT”) allowing commencement of insolvency proceedings on the
action of the financial creditor (Urban Infrastructure Trustees Ltd.). in National
Company Law Appellate Tribunal (“NCLAT”). The financial creditor had
subscribed to optionally convertible debentures (“OCDs”) issued by the
corporate debtor. OCDs carried nil or 1% p.a. interest rate and matured in
years 2011, 2012 and 2013.
Ø One of the issues
for consideration before the NCLAT was whether the application under Section 7
of the Insolvency & Bankruptcy Code (“Code”)
is time barred, as the debt claim related to the years 2011, 2012 and 2013.
Section 3 of the Limitation Act,
1963 governs the time period within which unless a ‘civil suit’ must be filed
in respect of recovery of monetary dues i.e. within 3 (three) years of the date
the loan of the money is made, the ‘civil suit’ shall be dismissed for want of
limitation.
It should be noted that the monetary
due is not extinguished from the expiry of the said period of three years from
the date the money is lent and the debtor is free to repay the amount without
claiming protection under the Limitation Act, 1963 and that the creditor has no
legal remedy to recover the money lent. Nowhere in the Code it has been stipulated
that for preferring any application to the adjudicating authority to initiate the
corporate resolution process, the debt which gives rise to preferring the
application should not be time barred by limitation.
The National Company Law Appellate Tribunal,
has observed that Code is not an Act for recovery of money claim, it relates to
initiation of corporate insolvency resolutions process. If there is a debt
which includes interest and there is default of debt and having continuous curse
of action, the argument that the claim of money respondent is barred by
limitation cannot be accepted.
“It would be clear that the law of
limitation would not apply to an application made to the Adjudicating Authority
under the Code and such an application could be made in respect of even a debt
barred by limitation.”
However, the judgement can lead to
conflict between Section 238 of the Code and Section 433 of the Companies Act,
2013.
S.238 of the Code, provides for overriding
provisions of any other law for the time being in force, where Section 433 of the Companies Act, 2013 provides that
the Limitation Act, 1963 is applicable to proceedings before NCLT and NCLAT.
In the previous Companies Act, 1956,
a winding up petition was considered
maintainable only against a debt which was legally recoverable i.e. not barred
by limitation. However, the recent judgement of NCLAT has change the position
and may open the floodgates for the recovery of old debts which were barred by
the limitation.
It is advisable that
parties should be cautious before relying on this judgment of NCLAT, as NCLAT
has not referred to Section 433 of the Companies Act, 2013 in its judgment and
parties should continue initiating insolvency proceedings within the limitation
period for the recovery of the original debt.
For any query
w.r.t. NCLT, NCLAT, Corporate Litigation and other legal aspects including corporate
insolvency, liquidation, winding up and for any other query w.r.t. Insolvency
& Bankruptcy Code, please contact us at admin@equicorplegal.com / +918448824659
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