IBC UPDATE | FINANCIAL CREDITORS CAN JOINTLY FILE AN IBC APPLICATION TO REACH THE THRESHOLD LIMIT
The Rajasthan High Court in a recent judgement in the case of Vishnu Oil Mill Pvt. Ltd. Vs. Union of India upheld Section 7 of the Insolvency and Bankruptcy Code 2016 (IBC), that a group of financial creditors can converge and join hands to touch the financial limit of INR 10 Million as stipulated under Section 7 so as to initiate a Corporate Insolvency Resolution Process (CIRP) under the IBC.
The petitioner in the present case, Vishnu Oil Mill Private Limited (Petitioner) had filed a writ petition to assail the validity of Section 7 of the IBC and also to challenge the Order dated 22 December 2021 passed by the National Company Law Tribunal, Jaipur Bench (NCLT Jaipur) against the petitioner. The counsel representing the petitioner had contended that due to the serious financial distress brought around by the Covid-19 pandemic, the Government of India increased the minimum amount of default to INR 10 million from the existing threshold of INR 100,000. He contended that, while raising the threshold limit for initiating CIRP, the legislature's objective was that a joint application by financial creditors could be heard, but a minimum default of INR 10 million should be qua every individual creditor. The Petitioner stated that the provision needs to be read in a purposive manner so as to lay down such principle. The petitioner further argued that some of the defendants had started insolvency proceedings despite of not having a default of INR 10 million.
The Petitioner further stated that the Supreme Court while determining the validity of Section 7 in the case of Swiss Ribbons Private Ltd. & Anr. Vs. Union of India & Ors , has till date not accounted for the possibility of complying with the threshold limit provided under section 7 of IBC by group of financial creditors for filing application collectively.
On the other hand, the respondents argued that the language of Section 7 of the IBC is unambiguous. They submitted that the remedy to trigger CIRP has been provided to financial creditors in their individual capacity and also through a joint application with the total minimum threshold for initiation of CIRP being fixed at INR 10 million. They argued that the letter and spirit of Section 7 would be weakened if it is determined that the threshold of INR 10 million is qua every individual financial creditor, and that such an interpretation cannot be envisaged by any stretch of imagination.
Issues to be adjudicated:
Whether Section 7 of the IBC is constitutionally valid?
Whether a group of financial creditors can jointly trigger CIRP without meeting the individual default threshold of Rs. 1 crore?
The Rajasthan High Court was of the opinion that a plain reading of Section 7 reveals that there is no ambiguity in the clause that demands any interpretation other than what is expressed in its literary sense. The section clearly stipulates that the application for triggering CIRP may be initiated by a financial creditor either individually or jointly with other financial creditors. It was observed that in the case of MSMEs, financial creditors with individual debts of INR 10 million or more may not exist. The statute and the amendments thereto make it clear that they were drafted in such a way as to provide a means of effective redressal to the smaller financial creditors and to give them the opportunity of availing of the speedy remedy under the IBC rather than being forced to engage in other time-consuming proceedings to recover their money. The High Court held that the Section 7 of the IBC as amended vide Gazette Notification dated 5 June 2020, admits no other interpretation except that a group of financial creditors can converge and join hands to touch the financial limit of INR 10 million stipulated under Section 7 so as to initiate a CIRP under the IBC.
In the view of the above, the Rajasthan Court dismissed the writ petition however, the petitioner was given the liberty to avail appropriate lawful remedy against the order dated 22 December 2021 passed by the NCLT Jaipur.
MHCO Comment : In our view, the Rajasthan High Court has made it crystal clear that a group of financial creditors can join hands to touch the threshold of INR 10 million to initiate CIRP and that there is no other way to interpret the section 7 of IBC.
This update was released on 12 August 2022.
Legal Update Team
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