Innoventive Industries, India’s first company to be tried under the new Insolvency and Bankruptcy Code, has failed to finalize a debt resolution plan in the stipulated six months, prompting the National Company Law Tribunal (NCLT) to extend the deadline by another three months – the maximum permissible – before liquidation. If the company fails to resolve the debt problem in the next three months with banks taking a haircut and promoters bringing in equity, it would face liquidation. The company manufactures steel tubes and auto parts for various large auto companies.
As creditors and the borrower could not conclude on the revival plan, they agreed on seeking the additional time, three sources familiar with the matter told ET. “The promoter may too bid for the company on a personal capacity, a move aimed at preventing a possible liquidation of the company as there is disagreement over the revival plan,” said one of the persons cited above.
Financial Performance of Innoventive Industries Ltd.
Table 1: Financials of Innoventive (All Figs. in INR Crores)
2017 | 2016 | 2015 | 2014 | 2013 | |
Revenue | 307.16 | 335.22 | 341.97 | 389.79 | 650.68 |
Other Income | 4.39 | 3.15 | 3.71 | 3.92 | 2.07 |
Total Income | 311.55 | 338.37 | 345.68 | 393.71 | 652.75 |
Expenditure | -730.74 | -317.99 | -353.32 | -699.4 | -482.84 |
Interest | -151.69 | -132.43 | -149.05 | -97.1 | -60.95 |
Depreciation | -62.96 | -62.87 | -68.47 | -36.09 | -35.66 |
Net Profit | -482.15 | -174.97 | -213.48 | -434.66 | 56.54 |
Equity | 59.64 | 59.64 | 59.64 | 59.64 | 59.64 |
Relevant Facts
Financial Creditor | ICICI Bank Ltd |
Corporate Debtor | M/s Innoventive Industries Ltd |
Date of default | 30th November 2016 |
Date of Company petition | 22nd December 2016 |
Maharashtra Relief Undertaking (Special Provisions) Act declared Innoventive Industries Ltd as relief undertaking. |
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Issue | Whether Financial Creditor (ICICI Bank) can invoke Insolvency proceedings against Corporate Debtor (Innoventive Industries Ltd) during which the Corporate debtor is already enjoying the relief of one year of all the debts and liabilities as having been suspended under another Act(Maharashtra Relief Undertaking (Special Provisions) Act)? |
War of non-obstante clauses both under Insolvency and bankruptcy Code 2016 Sec 238 and Maharashtra Relief Undertaking (Special Provisions) Act(MRU) Sec 4. | Grounds for Judgement:
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Decision | The Bench having not noticed any merit in the argument of the Corporate Debtor Counsel, the Application filed by Corporate Debtor is hereby dismissed. |
Later an appeal was filed to NCLAT by Innoventive Industries Ltd on 3 issues. | The question (s) involved in this appeal are: –
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Decision | ‘adjudicating authority’ having satisfied on all counts, including default and that the application is complete and that there is no disciplinary proceeding pending against the Insolvency Resolution Professional, no interference is called for against the impugned judgment. And it does not find any merit in this appeal. It is accordingly dismissed. However, in the facts and circumstances, there shall be no order as to cost. |
Key highlights of the Supreme Court Judgement
Both NCLT and NCLAT had views that the Code and the Maharashtra Act operate in different fields and, therefore, are not repugnant to each other. Having recorded this, however, the NCLAT went on to hold that the appellant cannot derive any advantage from the Maharashtra Act to stall the insolvency resolution process under Section 7 of the Code.
- On 16th January, a second application was filed by the appellant in which a different plea was taken. This time, the appellant pleaded that owing to non-release of funds under the MRA, the appellant was unable to pay back its debts as envisaged. But by a separate order dated 23rd January 2017 passed by NCLT, in which a clarification application was dismissed, it was held that the second application of 16th January 2017 was raised belatedly and would not be maintainable for two reasons – (1) because no audience has been given to the corporate debtor in the Tribunal by the Code; and (2) the corporate debtor has not taken the plea contained in the second application in the earlier application. This was because a limited timeframe of only 14 days was available under the Code from the date of filing of the creditors’ petition, to decide the application.
- In this view of the matter, Supreme Court considered view that the Tribunal and the Appellate Tribunal were right in admitting the application filed by the financial creditor ICICI Bank Ltd.
The date of declaration of Moratorium under section 13 of IBC 2016 for Innoventive Industries Ltd is 17 January 2017, wherein the powers of the existing Board of the Company are automatically suspended and the Insolvency Professional, Mr. Dhinal A. Shah is vested with such powers. It is interesting to note that in the wake of such moratorium, the Insolvency Professional has signed the Results for the year ended March 31, 2017. Whereas in case of annual results of ABG Shipyard Ltd (which is also presently facing insolvency proceedings) are not signed and approved either the Board or Insolvency Professional during moratorium period. Hence there are two stands taken in the same case by both the Insolvency Professionals.