TMI Blog2018 (3) TMI 1455X X X X Extracts X X X X X X X X Extracts X X X X ..... h Kumar, Member (Judicial) It is a Company Petition filed under section 7 of Insolvency Bankruptcy Code by the Financial Creditor namely; Punjab National Bank (PNB) against the Corporate Debtor namely; Anand Distilleries Pvt. Ltd. seeking initiation of Corporate Insolvency Resolution process against the Corporate Debtor for having this debtor defaulted in making repayment of the loan facility availed from the Bank on 31.05.2011, therefore, this Petitioner sought repayment of ₹ 79,10,51,494 outstanding due as on 31.05.2017. Brief facts of the case: 2. As this Corporate Debtor approached the Petitioner for loan facility, on 23.09.2006 the Petitioner informed the Corporate Debtor that it sanctioned Term Loan of ₹ 12 crores and Fund based limit of ₹ 3 crores with terms and conditions as mentioned in the said sanction letter and agreement entered between them, in pursuance thereof, above said amounts were disbursed on 23.09.2006 itself. Again on 29.10.2007, the Petitioner sanctioned additional Term Loan of ₹ 6 crores, that was also disbursed on 29.10.2007. Thereafter, additional term loan of ₹ 6 crores with enhancement limit up to ͅ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t facility sanctioned, consent letter from guarantor dated 14.09.2009 (Exhibit-T) and supplementary agreement dated 14.09.2009 (Exhibit-T1), hypothecation of Goods Books to secure cash credit facility dated 30.03.2010 (Exhibit-U) for an amount of ₹ 1.6 crores wherein limit increased from 6.7 crores to ₹ 8.35 crores, agreement of guarantee dated 30.03.2010 (Exhibit-V) by the same guarantors for an amount of ₹ 8.35 crores, hypothecation of Goods Books debts to secure cash credit facility dated 29.06.2010 (Exhibit-W) for an amount of ₹ 10.15 crores, agreement of guarantee dated 03.02.2011 (Exhibit-X) by the same guarantors for an amount of ₹ 12.25 crores, hypothecation agreement 03.02.2011 (Exhibit-Y) for an amount of ₹ 12.25 crores, agreement of guarantee dated 03.02.2011 (Exhibit-Z) executed by the guarantors for an amount of ₹ 12.25 crores, an agreement of guarantee dated 03.02.2011 (Exhibit-AA) executed by Mr. Anandkumar Bhamore and Abhay Anand Bhamore for an amount of ₹ 12.25 crores in favour of the Petitioner. These are various documents executed by the Corporate Debtor and some documents by the guarantors in favour of the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt another notice (Exhibit-AN) on 17.09.2013 calling upon the Corporate Debtor to clear the entire outstanding dues to the bank as on 31.8.2013 of ₹ 31,27,63,024.27 within 30 days of receipt of the notice, in the event of failure, the bank would proceed against the Corporate Debtor. When no repayment came from the Corporate Debtor, the Petitioner filed an application before the Debt Recovery Tribunal, Nagpur against the Corporate Debtor u/s. 19 of Recovery of Debts and Bankruptcy Act, 1993 for a direction against this Corporate Debtor and the guarantors thereof to pay jointly and severally to this bank a sum of around ₹ 45 crores and also to issue recovery certificate u/s. 19(22) of the Act for a recovery of the debt amount from the Corporate Debtor and its guarantors as per contractual rate of interest, for attachment of hypothecated and mortgaged properties of the Corporate Debtor and the guarantors and also for the removal of the corporate debtor and the guarantors from the possession of the mortgaged properties by submitting list of assets to the Tribunal, but till date, this Petitioner could not realize anything from the Corporate Debtor. When no relief has been fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Chief Manager of the PNB on 16.07.2014 stating that the term loan accounts sanction by the bank are not disputed by the Corporate Debtor, the only dispute, the corporate debtor raised in that letter is in relation to an amount of ₹ 5,94,98,311 alleged to have been paid to the Bank. The Counsel on behalf of the Corporate Debtor in this letter has not disputed on availing the loan or even liability, but only thing raised in the letter is, a part payment was made that has not been fully reflected in the accounts of the Corporate Debtor. 8. On 30.03.2016, the corporate Debtor wrote a letter (Exhibit-C in the additional affidavit), through its director, Anand Bhamore, to the Executive Director of PNB, Bhikaji Kama Palace, New Delhi, stating that the directors of the corporate debtor appeared and attended before the addressee authority, wherein during discussion, the directors of the corporate debtor showed their desire for repayment provided one time settlement proposal is given for an amount of ₹ 27 crores towards full and final satisfaction of the bank dues against the account by selling the collateral securities as mentioned in the said letter. By saying so, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving the corporate debtor admitted in the letter dated 16.7.2014 addressed to the Chief Manager, Punjab National Bank, Nagpur, stating that company availed aforesaid loan from the Petitioner Bank with a corollary with regards to cash credit (Hyp) 87-8378 stating that the Corporate Debtor paid ₹ 5,94,98,311, therefore, it cannot be said that the Corporate Debtor has not made any acknowledgement in respect to this loan liability subsequent to filing case before Debt Recovery Tribunal, Nagpur. 13. On reading of explanation given to section 18 of Limitation Act, 1963, it is evident that acknowledgement of liability can be in any mode as mentioned in the explanation, which is as follows: Section 18 in The Limitation Act, 1963 18. Effect of acknowledgement in writing:- (1) Where, before the expiration of the prescribed period for a suit of application in respect of any property or right, an acknowledgement 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 ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 18 of the Limitation Act, 1963. 16. By virtue of the correspondence taken place in between the Petitioner and Corporate Debtor, this debt has to be treated as continuously acknowledged by the corporate debtor. 17. In view of the material facts and submissions placed by the Petitioner Counsel, the corporate debtor counsel made his written submissions stating that this claim is barred by limitation because as per the records of the Petitioners itself, since this account has been classified as NPA on 31.05.2011, it remained live for three years from the date of default. By the time, this company petition was filed, since three years already lapsed, this petition is out-rightly barred by limitation, henceforth this claim shall not be maintainable. As to OTS proposal is concerned, the Corporate Debtor Counsel says, since records disclosing that last payment was made by the corporate debtor on 08.02.2013, even if OTS proposal is taken as given on 31.03.2016, three years being lapsed in between 8.02.2013 and 31.03.2016, OTS proposal cannot become an acknowledgement for already three years lapsed even before OTS proposal has been made on this count also this claim is liable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame of the Resolution Professional proposed to act as Interim Resolution Professional, this Bench hereby admits this application prohibiting all of the following item-I, namely: I (a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; (b) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act); (d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. (II) That supply of essential goods or services to the corporate debtor, if continuing, shall not be terminated or suspended or interrupted during moratorium period. (III) That the provisions of sub-section (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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