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2021 (5) TMI 550 - AT - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Approval of resolution plan - Corporate Debtor failed to make repayment of its dues - Financial Creditors - time limitation - maintainability of second application against the Corporate Debtor as for the same debt and default, CIRP has already been taken place against the Corporate Guarantor and the Financial Creditor has accepted the amount in full and final settlement of all its dues. Time Limitation - HELD THAT:- In the present case, admittedly the date of default is 15.04.2012. Within three years, i.e on 24.03.2015, the Debt Repayment and Settlement Agreement was entered into by the parties (Diary no. 24049, Page 214-245, Appeal Paper Book). The Corporate Debtor failed to repay the debt as per Debt Repayment and Settlement Agreement. Therefore, Financial Creditor cancelled the said agreement (Diary no. 24049, Page 246-256, Appeal Paper Book) on 29.05.2017. In this agreement, the Corporate Debtor has specifically acknowledged the debt - Thereafter, within three years i.e on 10.02.2020, the Financial Creditor filed the Application under Section 7 of the IBC. It is apparent that the Application is filed within extended period and the Application is within limitation. There are no force in the arguments advanced by the Ld. Counsel for the appellant - the finding of Ld. Adjudicating Authority that the Application is within limitation is affirmed. Whether the second Application under Section 7 of IBC is not maintainable against the Corporate Debtor as for the same debt and default, CIRP has already been taken place against the Corporate Guarantor and the Financial Creditor has accepted the amount in full and final settlement of all its dues? - HELD THAT:- Application under Section 7 of the IBC against the Corporate Debtor for the same debt and default is maintainable in the light of judgment of Athena Energy Ventures [2020 (11) TMI 800 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , NEW DELHI]. The argument made by the Ld. Counsel of the appellant that CIRP has already taken place against the Corporate Guarantor therefore, the second application against the Corporate Debtor is not maintainable, is not convincing. It cannot be held that the Financial Creditor accepted the amount in full and final settlement of all its dues. We are therefore of the considered view that the Application under Section 7 of the IBC is maintainable against the Corporate Debtor for the same debt and default and the Financial Creditor can recover the remaining dues from the Corporate Debtor. Whether the Resolution Applicant is entitled to exercise its right over the subsidiaries company of ACIL (Corporate Guarantor)? - HELD THAT:- No forensic audit report place on record to prove that the ACIL fraudulently made investments in its subsidiaries i.e. Corporate Debtor. Therefore, the assets of the subsidiaries cannot be included in the resolution plan in relation to ACIL submitted by Resolution Applicant (Appellant). Whether the approved resolution plan has included the SEZ business of the Corporate Debtor? - HELD THAT:- In the case of Facor Alloys Ltd. [2020 (11) TMI 848 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] the shares of Facor Power Ltd. i.e. 86% shares were held by the Corporate Debtor. The RP in accordance with regulation 27 of the IBBI (Insolvency Resolution Process of Corporate Persons) Regulations 2016 appointed two registered valuers to determine the fair value and liquidation value of the assets of the Corporate Debtor (Including the shares held by the Corporate Debtor in FPL). However, in the present case, during the CIRP of ACIL, no valuer was appointed to determine the fair value of the shares held by the the Corporate Debtor. Therefore, the assets of the Corporate Debtor (Respondent) cannot be included in the resolution plan - Thus, the facts of the case of Facor Alloys Ltd. are quite different from those of the present case. Thus, this citation is not helpful to the Appellant. Thus, the SEZ Business of the Corporate Debtor is not included in the resolution plan submitted by the Appellant. Appeal disposed off.
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