NCLT Kolkata Bench dismissed a corporate insolvency petition filed by a bank as a Recovery Certificate holder on grounds that the IBC is not a recovery mechanism and the petition was barred by limitation.
Petition under S. 7 IBC dismissed as barred by limitation and not maintainable as a recovery mechanism.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE NATIONAL COMPANY LAW TRIBUNAL KOLKATA BENCH - I KOLKATA
C.P (IB) No. 409/KB/2021
A Petition under section 7 of the Insolvency and Bankruptcy Code, 2016 read with rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016.
In the matter of:
State Bank of India
...Financial Creditor
Versus
Hardrock Attachments Private Limited (CINU50103JH2008PTC013126), a Company incorporated under the Companies Act, 1956 having its registered office at 17, Circuit House Area, [East] Near S.B.I. Bistupur, Jamshedpur – 831001..
...Corporate Debtor
Date of Hearing: 06.05.2022 Date of pronouncing the order : 18.05.2022
| Coram: | |
|---|---|
| Shri Rajasekhar V.K. | : Member (Judicial) |
| Shri Balraj Joshi | : Member (Technical) |
Appearances (through Video Conferencing/physical)
| 1. Mr. Soumya Roy Advocate | } For Financial Creditor |
|---|---|
| 1. Ms. Manju Bhuteria, Advocate | } For Corporate Debtor |
| 2. Mr. Urmila Chakraborty, Advocate | } |
| 3. Mr. Arnab Dutta, Advocate | } |
Page 1 of 7
IN THE NATIONAL COMPANY LAW TRIBUNAL KOLKATA BENCH - I
C.P (IB) No. 409/KB/2021 State Bank of India v. Hardrock Attachments Private Limited
ORDER
Rajasekhar V.K., Member (Judicial)
1. The Court convened via hybrid mode.
2. This is a Company Petition filed under section 7 of the Insolvency and Bankruptcy Code, 2016 (‘the Code’) read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 by Mr. Dilip Kumar Pathak, Chief Manager, State Bank of India (‘Financial Creditor’) , duly authorised vide Letter of Authority dated 16 June, 20171 for initiation of Corporate Insolvency Resolution Process (‘ CIRP ’) against Hardrock Attachments Private Limited (‘Corporate Debtor’).
3. The present Petition was filed on 05 December, 2021 before this Adjudicating Authority on the ground that the Financial Creditor has disbursed a sum of Rs.34,76,00,000/- (Rupees Thirty Four Crore Seventy Six Lakh only) to the Corporate Debtor under various facilities (‘facilities’) . However, the Corporate Debtor has defaulted in payment of the principle amount including interest i.e., Rs.64,55,80,125.70 (Rupees Sixty Four Crore Fifty Five Lakh Eighty Thousand One Hundred Twenty Five and Seventy Paisa only) as on 31 October, 2021, to the Financial Creditor. The date of default is stated to be 28 December, 2013 .
4. It is submitted in the Petition, Part – II that the authorised share capital of the Corporate Debtor is Rs.5,00,00,000/- (Rupees Five Crores only) with paid up Capital as Rs.4,81,90,000/- (Rupees Four Crore Eighty One Lakh Ninety Thousand only).
5. Submissions by the Ld. Counsel Mr.Soumya Royappearing on behalf of the Financial Creditor
1Annexure – B of the Petition.
Page 2 of 7
IN THE NATIONAL COMPANY LAW TRIBUNAL KOLKATA BENCH - I
C.P (IB) No. 409/KB/2021 State Bank of India v. Hardrock Attachments Private Limited
| Schedule | Description |
|---|---|
| ‘A’ | All piece and parcel of land known as Plat Nos. 557-(A) in Sy No. 340, 341, 342, 344 & 349 in the Belur Industrial Area within the limits of village Belur Hobli Garg Taluk, Dharwad, District : Dharwad containing by admeasurement 16100.00 sq. meter or thereabouts and bounded as follows that is to say: On or towards the North by : Plot No.557-(B) & 558-(B), on or towards the South by : PlotNo.559 & 560-(B), on or towards the East by : Proposed Road No.18 (24M wide), On ortowards the West by : Road No.24 (18M wide) |
| ‘B’ | This mortgaged property belongs to M/s Tools and Fixture MFG Co. Vide lease deed No.3541 dated 10.10.1980 being all the piece of land situated in Village :Dindli, Thana No.128, thana Seraikella, District : Singhbhum, corresponding to Plot No.C/30, 2nd Phase, Industrial Area, Adityapur, Survey Plot No.99(P), Khata No.306, admeasuring 15,000 sq. ft. which is bounded as follows: According to Survey Map: North : Survey Plot No.99(P), South : Survey Plot No.99(P), East : Survey Plot No.99(P), West :Survey Plot No.99(P). |
| ‘C’ | This mortgaged property belongs to Sri Dharamvir Singh, S/o Ajit Singh Vide Sale deed No.6635 dated 26.08.2010 being all the piece and parcel of land measuring 1421 sq. ft. or 3.26 decimals, now used as residential purpose, being in Portion of Plot No.1217(P), under Kata No.265, situated in the premises of Aastha Twin City, |
Page 3 of 7
IN THE NATIONAL COMPANY LAW TRIBUNAL KOLKATA BENCH - I
C.P (IB) No. 409/KB/2021 State Bank of India v. Hardrock Attachments Private Limited
corresponding to Colony, Sub- Plot No.6, Block-Red Bud, within Mouza: Hurlung, P.S. Birsanagar, Thana No.1201, District Sub Registry Office at Jamshedpur, District : Singhbhum East, within the State of Jharkhand, which is bounded as follows: North : Alley, South : Road, East: Red bud No.5, West : Passage.
‘D’ This mortgaged property belongs to Sri Dharamvir Singh, S/o Ajit Singh Vide Conveyance deed No.26 dated 01.01.2013 being all the piece and parcel of Flat No.0301 on the 3rd Floor at Tower No.3 containing by admeasurement 956 sq, ft. super built up area in the building on the said premises comprising of two bedrooms, two toilets, one kitchen, two balconies and living dining room, together with 1 open parking space No.88 of the said tower situated at Unworld City Complex known as Vistas having Plot No.AA HI/BLK-2/3(part) in Action Area III, New Town, Mouza: Patharghata, Grampanchyat-Patharghata, Rajarhat, District - 24 Parganas (N).
6. Submissions by the Ld. Counsel, Ms. Manju Bhuteria appearing on behalf of the Corporate Debtor
Page 4 of 7
IN THE NATIONAL COMPANY LAW TRIBUNAL KOLKATA BENCH - I
C.P (IB) No. 409/KB/2021 State Bank of India v. Hardrock Attachments Private Limited
2Annexure – A of the Reply
Page 5 of 7
IN THE NATIONAL COMPANY LAW TRIBUNAL KOLKATA BENCH - I
C.P (IB) No. 409/KB/2021 State Bank of India v. Hardrock Attachments Private Limited
same is still pending.The Corporate debtor has filed an application being S.A. No.38 of 2022 before the Ld. Presiding Officer, DRT, Ranchi, praying for quashing the sale notice dated 06 October, 2021 and possession notice 08 October, 2021 and to set aside the alleged sale of property at Serai kella Kharswan.
Analysis and Findings
7. We have heard the Ld. Counsel appearing on behalf of the Financial Creditor and the Ld. Counsel appearing on behalf of the Corporate Debtor and perused the record.
8. The Insolvency and Bankruptcy Code, 2016 was enforced on 01 December, 2016. The Financial Creditor had filed its Original Application No.14 of 2017 before the Ld. DRT, Ranchi in 2017 and a Recovery Petition in 2018, which is still pending adjudication. However, this instant petition was filed on 05 December, 2021 i.e., almost 4.5 years after the enactment of the Code. The said act of the Financial Creditor clearly depicts that they were vehemently pursuing their rights before a different forum till they realized that they would be unable to recovery their money in a fast-track mode.
9. It is a well settled that the objective of the Code is the revival of the Corporate Debtor by resolving insolvency in a prescribed manner, and not as a recovery mechanism for the Financial Creditor. Further, as submitted by the Financial Creditor, the date of Default is 28 December, 2013 and the Balance Sheet relied
Page 6 of 7
IN THE NATIONAL COMPANY LAW TRIBUNAL KOLKATA BENCH - I
C.P (IB) No. 409/KB/2021 State Bank of India v. Hardrock Attachments Private Limited
upon for the purpose of extending the limitation by taking recourse to section 18 of the Limitation Act, is for the Financial Year ending on 31 March, 2018. So, even if the Balance Sheet is taken to acknowledge the debt by the Corporate Debtor, the limitation would end on 31 March, 2021 whereas, this instant petition was filed on 05 December, 2021. Hence, in light of the above, the Petition is barred by limitation and is dismissed.
10. A certified copy of this order may be issued, if applied for, upon compliance with all requisite formalities.
BALRAJ JOSHI
Digitally signed by BALRAJ JOSHI Rajasekh Digitally signed by Rajasekhar V K
Date: 2022.05.18 ar V K Date: 2022.05.18 18:53:29 +05'30' 17:21:14 +05'30'
Balraj Joshi Rajasekhar V.K. Member (Technical) Member (Judicial)
The Order is pronounced on 18th day of May, 2022
Safura A., LRA
Page 7 of 7
2 issues framed by the court
Whether a petition under section 7 of the IBC filed by a decree holder/recovery certificate holder is maintainable as it acts as a recovery mechanism rather than for corporate revival?
Whether the present petition filed in December 2021 is barred by limitation given the date of default in December 2013 and applicable limitation period?
2 provisions across 2 enactments
State Bank of India
Hardrock Attachments Private Limited
Rajasekhar V.K.
Balraj Joshi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
