Full Judgment Text
REPORTABLE
2023 INSC 923
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2348 OF 2021
TOTTEMPUDI SALALITH …APPELLANT
VERSUS
STATE BANK OF INDIA & ORS. …RESPONDENTS
JUDGMENT
ANIRUDDHA BOSE, J.
The appellant before us has described himself as the
managing director of the Respondent No.2, Totem Infrastructures
Limited (corporate debtor) against whom proceedings have been
initiated on account of default in repaying financial facilities
extended to them by several banks in the form of loans and bank
guarantees. The total claim on account of default as made before
Signature Not Verified
the National Company Law Tribunal (NCLT) was for a sum of
Digitally signed by
NIRMALA NEGI
Date: 2023.10.18
17:00:33 IST
Reason:
Rs.613,27,01,598.23/. Several banks had extended these
1
facilities, being (i) Union Bank of India, (ii) IDBI, (iii) Oriental
Bank of Commerce, (iv) Bank of Baroda, (v) Karnataka Bank,
(vi) Syndicate Bank and (vii) Punjab National Bank as also the
State Bank of India, who is the first respondent in this appeal.
The State Bank of Hyderabad, State Bank of Mysore, State Bank
of Travancore, State Bank of Bikaner and Jaipur and State Bank
of Patiala, had also extended such facilities, but they had merged
with the State Bank of India on 01.04.2017. Hence, the State
Bank of India is now prosecuting the composite claims of these
banks. In the proceeding before the NCLT, out of which this
appeal arises, it was the State Bank of India who had filed the
application as financial creditor under Section 7 of the Insolvency
and Bankruptcy Code, 2016 (IBC).
2. Prior to bringing the action under the IBC, notice under
Section 13(2) of the Securitisation and Reconstruction of
Financial Assets and Enforcement of Security Interest Act, 2002
(SARFAESI) was issued to the corporate debtor and recovery
proceedings were instituted against them before the Debt
Recovery Tribunal (DRT). Three applications were filed by the
exposed lending banks, two before the DRT, Hyderabad being OA
No.154 of 2014 and OA No.221 of 2014, the former having been
2
renumbered as OA No.1653 of 2017. The third application was
filed before the DRT, Bengaluru which was registered as OA
No.1930 of 2014. Three recovery certificates were issued by the
respective Tribunals covering the claims of the lending banks.
Two recovery certificates by the Hyderabad Tribunal were issued
on 08.09.2015 and 17.10.2017 for a sum of
Rs.14,50,06,349.23/ and Rs.1408,03,14,857.40/ respectively.
In the case registered as OA No.221 of 2014, the State Bank of
Hyderabad was the applicant bank. In OA No. 154 of 2014, all
these banks filed a composite application. In OA No.1930 of
2014, the proceeding brought by State Bank of Bikaner and
Jaipur, recovery certificate was issued on 04.08.2017 for a sum
of Rs.5,22,21,750/. In respect of the recovery certificate issued
on 17.10.2017, the State Bank of India claimed to be entitled to
Rs.368,22,13,348.59/.
3. The State Bank of India’s application under Section 7 of the
IBC was filed on 06.09.2019 before the NCLT, founded on all the
three recovery certificates in which the first respondent had
substantial stake. In its order passed on 12.01.2021, the
adjudicating authority admitted the application and declared
moratorium in terms of Section 14 of the IBC. By this order, one
3
G. Satyanarayana Murty was appointed as Interim Resolution
Professional (IRP). The appellant, who was the managing director
of the corporate debtor, appealed against the said decision of the
NCLT admitting the application and declaring moratorium
primarily on the ground of limitation. Before the National
Company Law Appellate Tribunal (the Appellate Tribunal), a point
was urged, apart from the issue of limitation, that the application
had been initiated as per the Reserve Bank of India circular dated
12.02.2018 which was held to be ultra vires the provision of
Section 35AA of the Banking Regulation Act, 1949 by this Court
in the case of Dharani Sugars and Chemicals Ltd. vs Union of
[(2019) 5 SCC 480]. This circular essentially
India and Others
laid down norms for, interalia, invoking IBC in relation to
stressed assets. The NCLT had taken into consideration a letter
issued by the corporate debtor on 29.01.2020 addressed to the
Union Bank and the State Bank of India, agreeing in principle to
repay the amount due to the financial creditors. The same letter
requested the banks to support the corporate debtor during the
financial crises being faced by them and sought waiver of penal
interest levied. A request for one time settlement was also made
in this communication. The NCLT treated this letter to be an
4
acknowledgement of debt. In its decision taken on 12.01.2021
while admitting the application, it was, interalia, observed:
“….We, are therefore, of the view that by accepting liability
vide their letter dated 29.01.2020, agreeing to repay the
debt, the Corporate Debtor now cannot take a stand that
the debt is barred by limitation. Acknowledgement of debt
and agreeing to repay the same amounts to liability and it
automatically extends the limitation period.”
The Appellate Tribunal broadly agreed with the reasoning of the
NCLT and sustained the decision delivered on 12.01.2021.
4. The pleas of the appellant before the Appellate Tribunal
were mainly on procedural grounds. Apart from the question of
limitation, arguments were advanced that the application before
the NCLT was barred under the doctrine of election, the borrower
having chosen the SARFAESI mechanism first and having applied
before the DRT. Point of limitation was also reiterated. On the
issue involving the RBI Circular dated 12.02.2018 the case of the
appellant was that the banks had approached the forum under
the IBC, on the basis of the aforesaid circular. The said circular
was, however, quashed in the case of
Dharani Sugars and
Chemicals Ltd. (supra). On this ground, the appellant argued
that the application was not maintainable. The Appellate
Tribunal held, interalia:
5
“56. In regard to the plea of the Appellant that the
Adjudicating Authority in the impugned order even though
at paragraph 12 had mentioned that the Corporate Debtor
had raised two fold contention (1) that the petition is
barred by limitation (2) the petition has been initiated as
by the RBI Circular 12.02.2018 which was held ultra virus
of section 35 AA of the Banking Regulation Act by the
Hon’ble Supreme Court, this Tribunal ongoing through the
impugned order is of the considered view that the
Adjudicating Authority had not adverted to the same and
the said order in this regard has not spelt out reasons.
Therefore, this Tribunal is of the earnest opinion that it is
desirable that an ‘Adjudicating Authority’ is to disclose its
mind in future so that the compulsion of disclosure,
guarantees consideration apart from the fact, that the duty
to assign reasons introduces clarity and minimizes
arbitrariness. Also, it will enable the superior authority to
evaluate the order so passed on legal plane. However, this
Tribunal being an ‘Appellate Authority’ over the
Adjudicating Authority in the present Appeal has dealt
with the aspect of limitation concerning the section 7
application and the aspect of RBI circular dated
12.02.2018 and answered the same at the relevant of this
Judgment. As such, the Appellant cannot be an aggrieved
person in this regard, in the considered opinion of this
Tribunal.
57. It is to be pointed out that in our ‘Justice Delivery
System’, ‘Law’ is to be decided with
reasons which carry convictions within the
Codes/Tribunals/Lawyers/Stakeholders and Litigants to
make it, stable, predictable and consistent with a view to
have certainty and clarity to the benefit of one and all. It
cannot be gainsaid that the judgment/order of a Tribunal
is to be written only after deep travail and positive vein.
Also that, the procedure for developing the law has to be
one of evolution. In this connection it is significant to point
out that the exception to rule of ‘Stare decisis’ is that a
Court/Tribunal is not bound to follow the decision(s)
reached ‘per incuriam’.
58. As matter of fact, in the instant case when once the
Company has/had defaulted and after the initiation of
legal proceedings as available to the Lender on that date
(Before the Debt Recovery Tribunal) and when the
Financial Creditor/Lender had obtained the order(s) in the
‘Original Applications’ and later recovery certificates were
issued, and when the Original Applications filed before the
6
Debt Recovery Tribunal(s) had attained finality, thereafter
it is for the Lender/Financial Creditor/Decree Holder as
matter of ‘Election’ to pursue the recovery mechanism for
his/its personal benefits before a ‘competent forum’ or to
initiate Insolvency Proceedings for the benefit of
‘stakeholders’ and ‘one and all’. In the event of the Decree
Holder/Lender/Financial Creditor has/had resorted to the
initiation of Insolvency Proceedings under relevant section
of the I & B Code (after coming into force of the Code) he/it
cannot be found fault with, since there is no fetter in
‘Law’, in this regard.
59. It is pointed out that the decisions cited on behalf of
the Appellant before this Tribunal, in the instant case are
not applicable to the facts and the circumstances of the
present case, hence they are neither considered, nor
discussed.
60. Be that as it may, in view of the detailed upshot, this
Tribunal taking note of the respective contentions projected
by the Learned Counsels appearing for the parties,
considering the facts and circumstances of the present
case in a proper perspective, comes to a resultant
conclusion that the instant case there is a ‘Financial Debt’
which is due and payable by the ‘Corporate Debtor’.
Moreover, as against the Corporate Debtor/Totem
Infrastructure Limited, orders were passed by the Debt
Recovery Tribunal(s) and the three ‘Recovery Certificates’
dated 17.10.2017, 04.08.2017 and 08.09.2015 clearly
establish the factum of Financial Debt, due and payable,
and that default being committed by the ‘Corporate
Debtor’. To put precisely, the onus of proving the ‘debt’
and ‘default’ on the part of the First Respondent/Bank in
the instant case, has been duly discharged. Looking at
from any angle, the ‘admission order’ of the section 7
application as against the ‘Corporate Debtor’ by the
Adjudicating Authority, (‘National Company Law Tribunal’,
Hyderabad Bench in an application filed by the First
Respondent/Bank) as Financial creditor on
12.01.2021 in CP (IB) No. 625/7/HDB/2019 does not
suffer from any material irregularities and patent
illegalities in the eye of Law. Resultantly, the Appeal fails.
CONCLUSION: In fine, the Comp App (AT)(CH)(Ins)
No. 04/2021 is dismissed. No costs. The I A No. 09/2021
and 10/2021 are closed.”
7
5. In the case of Kotak Mahindra Bank Limited vs A.
Balakrishnan and Another [(2022) 9 SCC 186], a three Judge
Bench of this Court had examined the question of limitation from
the perspective of issue of recovery certificates in terms of
provision of the Recovery of Debts and Bankruptcy Act, 1993
(1993 Act). We shall refer to this judgment henceforth as Kotak
. It was opined by this Court in this judgment:
Mahindra I
| “ | 28. | It could thus be seen that this Court in | Dena | ||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|
| Bank | [Dena Bank | v. | C. Shivakumar Reddy, (2021) 10 SCC | ||||||||
| 330] in SCC paras 136 and 141, has in unequivocal terms | |||||||||||
| held that once a claim fructifies into a final judgment and | |||||||||||
| order/decree, upon adjudication, and a certificate of | |||||||||||
| recovery is also issued authorising the creditor to realise | |||||||||||
| its decretal dues, a fresh right accrues to the creditor to | |||||||||||
| recover the amount of the final judgment and/or | |||||||||||
| order/decree and/or the amount specified in the recovery | |||||||||||
| certificate. It has further been held that issuance of a | |||||||||||
| certificate of recovery in favour of the financial creditor | |||||||||||
| would give rise to a fresh cause of action to the financial | |||||||||||
| creditor, to initiate proceedings under Section 7 IBC for | |||||||||||
| initiation of the CIRP, within three years from the date of | |||||||||||
| the judgment and/or decree or within three years from the | |||||||||||
| date of issuance of the certificate of recovery, if the dues of | |||||||||||
| the corporate debtor to the financial debtor, under the | |||||||||||
| judgment and/or decree and/or in terms of the certificate | |||||||||||
| of recovery, or any part thereof remained unpaid. |
xxx xxx xxx
| 56. | Insofar as the contention of the respondents with | |
|---|---|---|
| regard to clause (a) of subsection (1) of Section 14 IBC is | ||
| concerned, we do not find that the words used in clause | ||
| (a) of subsection (1) of Section 14 IBC could be read to | ||
| mean that the decreeholder is not entitled to invoke the | ||
| provisions of the IBC for initiation of CIRP. A plain reading | ||
| of the said Section would clearly provide that once CIRP is | ||
| initiated, there shall be prohibition for institution of suits or | ||
| continuation of pending suits or proceedings against the |
8
| corporate debtor including execution of any judgment, | |
|---|---|
| decree or order in any court of law, tribunal, arbitration | |
| panel or other authority. The prohibition to institution of | |
| suit or continuation of pending suits or proceedings | |
| including execution of decree would not mean that a | |
| decreeholder is also prohibited from initiating CIRP, if he | |
| is otherwise entitled to in law. The effect would be that the | |
| applicant, who is a decreeholder, would himself be | |
| prohibited from executing the decree in his favour. |
xxx xxx xxx
| 71. | We have already hereinabove, done the exercise of | ||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|
| considering the relevant provisions of the IBC afresh and | |||||||||||
| come to a conclusion that a liability in respect of a claim | |||||||||||
| arising out of a recovery certificate would be a “financial | |||||||||||
| debt” within the meaning of clause (8) of Section 5 IBC and | |||||||||||
| a holder of the recovery certificate would be a “financial | |||||||||||
| creditor” within the meaning of clause (7) of Section 5 IBC. | |||||||||||
| We have also held that a person would be entitled to | |||||||||||
| initiate CIRP within a period of three years from the date | |||||||||||
| on which the recovery certificate is issued. We are of the | |||||||||||
| considered view that the view taken by the twoJudge | |||||||||||
| Bench of this Court in | Dena Bank | [Dena Bank | v. | C. | |||||||
| Shivakumar Reddy, (2021) 10 SCC 330] is correct in law | |||||||||||
| and we affirm the same. |
xxx xxx xxx
| 86. | To conclude, we hold that a liability in respect of a | ||
|---|---|---|---|
| claim arising out of a recovery certificate would be a | |||
| “financial debt” within the meaning of clause (8) of Section | |||
| 5 IBC. Consequently, the holder of the recovery certificate | |||
| would be a financial creditor within the meaning of clause | |||
| (7) of Section 5 IBC. As such, the holder of such certificate | |||
| would be entitled to initiate CIRP, if initiated within a | |||
| period of three years from the date of issuance of the | |||
| recovery certificate. | ” |
6. The Appellate Tribunal, in the impugned order had also
treated the letter of the corporate debtor which was issued on
29.01.2020 to be acknowledgement of debt and on that basis
proceeded to compute the limitation period. In our opinion, this
9
reasoning was procedurally wrong. The appellant’s stand on this
position is founded on Section 18 of the Limitation Act, 1963 and
he contends that any acknowledgment beyond the period of
limitation would not revive the right to sue. Learned counsel for
the appellant has relied upon a judgment of this Court in the case
of Jignesh Shah and Another vs Union of India and Another
[(2019) 10 SCC 750] in which it has been held that the limitation
period provided in the Limitation Act would apply to the
applications under the IBC as well. Section 238A of the IBC itself
(introduced by way of an amendment to the Code made with
effect from 06.06.2018) stipulates application of the statute of
Limitation on IBC. Section 18 of the Limitation Act stipulates:
“ (1) Where,
18. Effect of acknowledgment in writing.—
before the expiration of the prescribed period for a suit or
application in respect of any property or right, an
acknowledgment of liability in respect of such property or
right has been made in writing signed by the party against
whom such property or right is claimed, or by any person
through whom he derives his title or liability, a fresh
period of limitation shall be computed from the time when
the acknowledgment was so signed.
(2) Where the writing containing the acknowledgment is
undated, oral evidence may be given of the time when it
was signed; but subject to the provisions of the Indian
Evidence Act, 1872 (1 of 1872), oral evidence of its
contents shall not be received.
Explanation.—For the purposes of this section,—
(a) an acknowledgment may be sufficient though it omits
to specify the exact nature of the property or right, or avers
that the time for payment, delivery, performance or
10
enjoyment has not yet come or is accompanied by a
refusal to pay, deliver, perform or permit to enjoy, or is
coupled with a claim to setoff, or is addressed to a person
other than a person entitled to the property or right,
(b) the word “signed” means signed either personally or by
an agent duly authorised in this behalf, and
(c) an application for the execution of a decree or order
shall not be deemed to be an application in respect of any
property or right.”
Section 238A of the IBC stipulates:
| “Limitation. | The provisions of the Limitation Act, 1963 | ||
|---|---|---|---|
| (36 of 1963) shall, as far as may be, apply to the | |||
| proceedings or appeals before the Adjudicating Authority, | |||
| the National Company Law Appellate Tribunal, the Debt | |||
| Recovery Tribunal or the Debt Recovery Appellate Tribunal, | |||
| as the case may be.” |
7. So far as the present proceeding is concerned, if we proceed
on the basis that the date of initial default is the starting point of
limitation, then lapse of three years from that date would have
extinguished the bank’s right to initiate action under the IBC.
Secondly, even if the said letter dated 29.01.2020 is treated to be
acknowledgement of debt, the same was made after institution of
the proceeding under Section 7 of the IBC. In the application thus,
there could be no reference to such acknowledgement. In absence
of amendment of pleadings, the Appellate Tribunal could not have
taken such purported acknowledgement of debt for the purpose of
extending the limitation period. Requirement of specific pleading
11
on facts constituting acknowledgement or admission of claim has
been recognised in the judgment of this Court in the case of
Reliance Asset Reconstruction Company Limited vs Hotel
Poonja International Private Limited [(2021) 7 SCC 352].
Broadly a similar view has been taken by this Court in the case of
Babulal Vardharji Gurjar vs Veer Gurjar Aluminium Industries
Private Limited and Another [(2020) 15 SCC 1]. In this judgment
also, the necessity of averments to overcome the limitation
question has been emphasised by this Court. The argument of the
appellant on the basis of Section 25 (3) of the Contract Act, 1872 is
anchored on the letter dated 29.01.2020. This letter reads:
To
“
The Assistant General Manager
Union Bank of India,
Industrial Finance Branch,
631090/B/4/101, 1st Floor,
“The Grand" Raj Bhavan Road,
Somajiguda, Hyderabad500 082.
Mailifbhyderabad@unionbankofindla.com
(Through to the Lead Bank)
Dear Sir,
Sub: Request for OTS with Consortium Banks
Ref: Totem Infrastructure Limited
We thank you very much for the support that has
been extended by your bank throughout my business
operations with your branch. With reference to your
letter/Notice from your branch, we have taken note of
12
it and we have discussed about this elaborately with
our business partners.
In principle, we have agreed among ourselves to
repay the amount due to your bank. As you are
aware, we are undergoing through rough phase in
our business activities along with financial crisis. At
this juncture we require your bank support to come
out of these problems and to repay the amounts due
to your bank.
In this regard, we request you to inform us to the
exact outstanding amount payable to your bank as
on the date of our account became Non Performing
Asset (NPA) in your bank. We also request you to
waive off all the penal interests levied by your bank
on the Loan outstanding amount from the date of
account became irregular to till date of your
notification to us
It would be of great relief to us, if you can waive off
all the penal interests and penalties and other
charges levied on our account and inform us to enable
us to plan for repayments.
So in this regard we further request you to consider
this as One Time Settlement (OTS) option extended to
us. We also request you to allow us to repay the said
amount in at least 4 to 6 Instalments spread over a
period of one year.
We are highly indebted to your bank in supporting us
in all our tough times and believing us.
We are always committed for repayment of your
outstanding dues. Finally we request you not to issue
any public notifications or such actions which will
spoil our reputation as well as closes all options for
us to raise funds or to make alternative arrangements
to repay the loan outstanding amounts.
Kindly organise Consortium meeting or joint Lenders
th
Meeting at the earliest, preferably before 07
February 2020 to discuss and to come to an
understanding.
We hope that you will consider our humble request.
Kindly do the needful and oblige.
Looking forward to your favourable response.
Thanking you,
13
Yours Faithfully
(Salalith Tottempudi)
Managing Director”
8. An argument based on Section 25(3) of the Contract Act,
1872 was examined by this court in Kotak Mahindra Bank Ltd.
[(2022) 9
vs Kew Precision Parts Private Limited and Others
SCC 364]. We shall refer to this judgment henceforth as Kotak
Mahindra II. Analysing the provision of Section 25 (3) of the
Contract Act, 1872 this Court has held in this judgment:
“33. There is a distinction between acknowledgment
under Section 18 of the Limitation Act, 1963 and a
promise within the meaning of Section 25 of the
Contract Act. Both promise and acknowledgment in
writing, signed by a party or its agent authorised in
that behalf, have the effect of creating a fresh starting
of limitation. The difference is that an
acknowledgment under Section 18 of the Limitation
Act has to be made within the period of limitation and
need not be accompanied by any promise to pay. If
an acknowledgment shows existence of jural
relationship, it may extend limitation even though
there may be a denial to pay. On the other hand,
Section 25(3) is only attracted when there is an
express promise to pay a debt that is timebarred or
any part thereof. Promise to pay can be inferred on
scrutinising the document. Only the promise should
be clear and unconditional.”
9. We accept the submission of the appellant that this letter was
a request to consider a onetime settlement. But again, in absence
of averments or pleading, after initiation of insolvency proceeding,
14
any promise made to pay the debt cannot be treated to have cured
the fault of limitation in a preexisting action. A promise of this
nature would constitute an independent cause of action.
We shall now return to the point argued by the appellant that
10.
the date of default should go back to the date on which the loan
account of the corporate debtor was declared as nonperforming
asset. In the cases of
B.K. Educational Services Private Limited
vs Parag Gupta & Associates [(2019) 11 SCC 633] and Babulal
(supra), date of default has been treated to be the date on which
the limitation period starts ticking. In Gaurav Hargovindbhai
Dave vs Asset Reconstruction Company (India) Limited and
Another [(2019) 10 SCC 572], the provision of Article 137 to the
Limitation Act was applied for computing the period of limitation.
But these authorities do not lay down a proposition of law which is
contrary to that laid down by the threeJudge Bench judgment of
this Court in the case of (supra). This Court, in
Kotak Mahindra I
the case of Vashdeo R. Bhojwani vs Abhyudaya Cooperative
Bank Limited and Another [(2019) 9 SCC 158], on considering
the facts involved in that case, came to the finding that when the
recovery certificate was issued, the said certificate injured
15
effectively and completely the appellant's rights, as a result of
which limitation would have begun ticking. The recovery certificate
there was issued on 24.12.2001 and the financial creditor filed an
application under Section 7 of the IBC before the NCLT on
21.07.2017. But in the said judgment also the date of recovery
certificate was treated to be the date on which the time of
limitation began to tick.
11. On behalf of the appellant, submissions have been made that
the banks having approached the DRT, were barred under the
doctrine of election from approaching the NCLT for recovery of
same set of debts. This is a doctrine embodied in the law of
evidence, which bars prosecution of the same right in two different
fora based on the same cause of action. But so far as the present
appeal is concerned, the recovery proceedings before the DRT had
commenced in the year 2014. At that point of time, the IBC had
not come into existence. Moreover, it has been held by this Court
in Kotak Mahindra I (supra) that the recovery certificate itself
would give rise to a fresh cause of action entitling a financial
creditor to initiate Corporate Insolvency Resolution Process (CIRP).
By this judgment, the right of the financial creditor to invoke the
mechanism under the IBC after issue of recovery certificate stood
16
acknowledged as a valid legal course. This Court, in that case also
dealt with the question of instituting a CIRP on the strength of
recovery certificate. Needless to add, such recovery certificate arose
out of a proceeding from the DRT. The enforcement mechanism for
a recovery certificate is an independent course, which a financial
creditor may opt for realisation of its dues crystalised under the
1993 Act, instead of chasing the mechanism under the 1993 Act.
The IBC itself is not really a debt recovery mechanism but a
mechanism for revival of a company fallen in debt, but the
procedure envisaged in the IBC substantially relates to ensuring
recovery of debts in the process of applying such mechanism. The
question of election between the fora for enforcement of debt under
the 1993 Act and initiation of CIRP under the IBC arises only after
a recovery certificate is issued. The reliefs under the two statutes
are different and once CIRP results in declaration of moratorium,
the enforcement mechanism under the 1993 Act or the SARFAESI
Act gets suspended. In such circumstances, after issue of recovery
certificate, the financial creditor ought to have option for enforcing
recovery through a new forum instead of sticking on to the
mechanism through which recovery certificate was issued. In the
case of Transcore vs Union of India and Another [(2008) 1 SCC
17
125], application of SARFAESI mechanism was held permissible
even though the subjectproceeding was instituted under the 1993
Act. Thus, the doctrine of election cannot be applied to prevent
the financial creditors from approaching the NCLT for initiation of
CIRP.
12. One factor which has come to our notice in course of hearing
is that one of the recovery certificates was issued on 08.09.2015.
We have already held that the letter dated 29.01.2020 cannot by
itself revive the debt though it could create an independent cause
of action. A question that arises now is as to whether the debts in
connection with the recovery certificate issued in the year 2015
could form subject matter of an application under Section 7 of the
IBC filed on 06.09.2019. In the case of Kotak Mahindra I (supra),
it was held that CIRP could be brought within three years from the
date of issue of recovery certificate.
13. What has been filed before the NCLT is a composite
application based on three recovery certificates, two of which have
been instituted within the threeyear period as postulated in
Article 137 of the Limitation Act. The third recovery certificate was
issued in the year 2015. Thus, there is more than three years gap
between the date of issue thereof and the date of filing of the
18
application before the NCLT. But a recovery certificate under the
1993 Act is also clothed with the character of a deemed decree.
The provisions of Section 19 (22A) of the 1993 Act specifies :
“
Section 19 Application to the Tribunal:
………..
(22A) Any recovery certificate issued by the Presiding
Officer under subsection (22) shall be deemed to be
decree or order of the Court for the purposes of
initiation of winding up proceedings against a
company registered under the Companies Act, 2013
(18 of 2013) or Limited Liability Partnership
registered under the Limited Liability Partnership Act,
2008 (6 of 2009) or insolvency proceedings against
any individual or partnership firm under any law for
the time being in force, as the case may be.]”
Life of a decree is twelve years for enforcement as per Article 136 of
the schedule of Limitation Act. The said provision stipulates:
| “Description of<br>application | Period of<br>limitation | Time from which period<br>begins to run |
|---|---|---|
| 136. For the execution<br>of any decree<br>(other than a<br>decree granting a<br>mandatory<br>injunction) or<br>order of any civil<br>court. | Twelve years. | [When] the decree or<br>order becomes<br>enforceable or where<br>the decree or any<br>subsequent order<br>directs any payment of<br>money or the delivery<br>of any property to be<br>made at a certain date<br>or at recurring periods,<br>when default in<br>making the payment or<br>delivery in respect of<br>which execution is<br>sought, takes place:<br>Provided that an |
19
| application for the<br>enforcement or<br>execution of a decree<br>granting a perpetual<br>injunction shall not be<br>subject to any period of<br>limitation.” |
|---|
14. There is authority for the proposition that the time for
computing limitation period for filing an application under Section
7 of the IBC would be guided by Article 137 of the Limitation Act.
That is the ratio of this Court in the case of Kotak Mahindra I
(supra). The same authority has also analysed the position of a
recovery certificate as a deemed decree. It has been, interalia,
held in this judgment:
| “ | 79. | From the plain and simple interpretation of the words | |
|---|---|---|---|
| used in subsection (22A) of Section 19 of the Debts | |||
| Recovery Act, it would be amply clear that the legislature | |||
| provided that for the purposes of windingup proceedings | |||
| against a company, etc. a recovery certificate issued by | |||
| the Presiding Officer under subsection (22) of Section 19 | |||
| of the Debts Recovery Act shall be deemed to be a decree | |||
| or order of the Court. It is thus clear that once a recovery | |||
| certificate is issued by the Presiding Officer under sub | |||
| section (22) of Section 19 of the Debts Recovery Act, in | |||
| view of subsection (22A) of Section 19 of the Debts | |||
| Recovery Act it will be deemed to be a decree or order of | |||
| the Court for the purposes of initiation of windingup | |||
| proceedings of a company, etc. However, there is nothing | |||
| in subsection (22A) of Section 19 of the Debts Recovery | |||
| Act to imply that the legislature intended to restrict the use | |||
| of the recovery certificate limited for the purpose of | |||
| windingup proceedings. The contention of the | |||
| respondents, if accepted, would be to provide something |
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| which is not there in subsection (22A) of Section 19 of the | |
|---|---|
| Debts Recovery Act. |
| 80. | In any case, when the legislature itself has provided | ||
|---|---|---|---|
| that any recovery certificate issued under subsection (22) | |||
| of Section 19 of the Debts Recovery Act will be deemed to | |||
| be a decree or order of the court for initiation of windingup | |||
| proceedings, which proceedings are much severe in | |||
| nature, it will be difficult to accept that the legislature | |||
| intended that such a recovery certificate could not be used | |||
| for initiation of CIRP, which would enable the corporate | |||
| debtor to continue as an ongoing concern and, at the | |||
| same time, pay the dues of the creditors to the maximum. | |||
| We, therefore, find no substance in the said submission. | ” |
15. We have already referred to the provision of Section 19(22A) of
the 1993 Act. This Court has construed the purpose of the said
provision to include bringing an action under the IBC on the
strength of Section 19(22) and (22A) of the 1993 Act. In the said
provision, however, so far as bringing a windingup action is
concerned, the right of a recovery certificateholder as a
deemeddecree holder has been confined to companies registered
under the Companies Act, 2013 and certain other entities with
which we are not concerned here. But in relation to initiating
proceeding under the IBC or making a claim under the said Code,
the restriction does not remain confined to the Companies Act,
2013. The corporate debtor in this proceeding was incorporated
under the Companies Act, 1956. In the case of
Kotak Mahindra I
(supra), credit facilities were extended to the borrower entities in
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the years 199394. It is obvious that the three corporate entities
involved in that case were incorporated under the Companies Act
that prevailed prior to coming into operation of 2013 Act. The
position of law to guide the subject proceeding should be the same.
In the event a financial creditor wants to pursue a recovery
certificate as a deemed decree, he would get twelve years’ time. We
are of this view as the extent of operation of a recovery certificate
has been construed by this Court in Kotak Mahindra I (supra) to
go beyond filing of windingup petition alone. It would retain the
character of a decree to lodge a claim in an IBC proceeding. But
this point has not been examined by the Appellate Tribunal. We
have already expressed our opinion on the reasons that weighed
with the Appellate Tribunal as also the NCLT in entertaining the
application. But since the first two fora did not test the legality of
the 2015 certificate as a deemed decree, we are of the opinion that
this question also ought to be addressed by the Appellate Tribunal.
We are otherwise not satisfied with the argument of the appellant
about maintainability of the application out of which this appeal
arises on the ground of the application being barred under
limitation. The application with respect to the two recovery
certificates issued in the year 2017 is maintainable. In the event
22
the Appellate Tribunal is of opinion that the CIRP could not lie so
far as the recovery certificate of 2015 is concerned, as the decree
would be still alive, the claim based on the said recovery certificate
could be segregated from the composite claim and the Committee
of Creditors shall, in that event, treat the sum reflected in the said
recovery certificate as part of the claims made in pursuance of the
public announcement. This direction we are issuing in exercise of
our jurisdiction under Article 142 of the Constitution of India.
16. With these observations and directions, the appeal is
dismissed. Interim orders, if any, shall stand dissolved.
17. Pending application(s), if any, shall stand disposed of.
There shall be no order as to costs.
18.
.................................J.
(ANIRUDDHA BOSE)
...............................J.
(VIKRAM NATH)
NEW DELHI;
OCTOBER 18, 2023
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