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TMI Blog2018 (3) TMI 1455X X X X Extracts X X X X X X X X Extracts X X X X ..... that it sanctioned Term Loan of Rs. 12 crores and Fund based limit of Rs. 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 Rs. 6 crores, that was also disbursed on 29.10.2007. Thereafter, additional term loan of Rs. 6 crores with enhancement limit up to Rs. 6.75 crores from the existing Rs. 3 crores through another sanction letter dated 29.04.2008, in pursuance of this facility was also availed by the Corporate Debtor on 29.04.2008. In addition to these facilities, this Corporate Debtor availed temporary enhancement to working facility limit to a tune of Rs. 1.6 crores from Rs. 6.75 crores through sanction letter dated 30.03.2010, however, this has been subsequently shown as adjusted/paid. Besides the facilities availed as mentioned above, this Corporate Debtor has also availed ad hoc cash credit facility of Rs. 3.4 crores on 28.06.2010 by a sanction letter dated 28.06.2010 and another Rs. 5.5 crores ad hoc facility on 28.3.2011 basing on a sanction letter dated 28.3.2011. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) executed by the guarantors for an amount of Rs. 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 Rs. 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 petitioners binding themselves as liable to repay the loan facilities availed by the Corporate Debtor. 4. Apart from the documents abovementioned, the Petitioner filed balance confirmation letters dated 09.02.2008 (Exhibit-AB), 23.6.2010 (Exhibit-AC), 28.5.2011 (Exhibit-AD), 25.9.2012 (Exhibit-AE), from time to time reflecting how much debt liability remained outstanding against the Corporate Debtor. When this account became NPA, this Petitioner issued notice (Exhibits AF-AK) 21.7.2011 u/s. 13(2) of SARFAESI Act 2002 to the company as well as to the persons stood as guarantors putting them to notice that the Corporate Debtor having defaulted in paying instalments/interest/principal debt, the account has been classified as NPA on 31.5.2011 as per RBI Guidelines stating that the amount due as on 31.5.2011 is Rs. 32,65,09,799.27 with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cated 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 forthcoming from the proceeding lying with the Debt Recovery Tribunal, the Petitioner issued statutory notice to the Corporate Debtor u/s. 434(1) of Companies Act, 1956 demanding the Corporate Debtor to pay the sum due (which amounts to Rs. 26,23,96,256 as on 30.9.2016), failing which the Petitioner would file petition for winding-up of the company. 5. The Petitioner Counsel, in respect to this fact, candidly admits that the outstanding due shown as Rs. 26,23,96,256 as on 30.09.2016 is incorrect, indeed it is the principal amount due and payable as on 30.09.2016 along with interest, therefore, this error could not be construed as due outstanding as on 30.09.2016. He says when the principal as on the date of filing Application u/s. 19 of RDBA, 1993 was above Rs. 45 crores, how could it even be imagined as Rs. 26 crores outstanding due as on 30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vided one time settlement proposal is given for an amount of Rs. 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, they sought for acceptance of their OTS proposal to get the dues of the Bank recovered as earliest as possible. 9. In addition to the above material, on 13.9.2016, the corporate debtor wrote a letter (Exhibit-D in the additional affidavit) to PNB Nagpur submitting OTS proposal for Rs. 27 crores which was by then not acceded by the Bank. In relation to tagging of account, the corporate debtor tendered three cheques for an amount of Rs. 5,00,000 in No-Lien account. When SARFAESI action was initiated, the corporate debtor filed an application before Debt Recovery Tribunal u/s. 17(1) of the SARFAESI Act challenging the action taken by the Petitioner Bank under the provision of Section 13(4) of the SARFAESI Act, the Ld. Tribunal wherein passed an order dated 12.02.2014 (Exhibit-F in the additional affidavit) directing the Bank to consider reschedulement of loan. 10. By showing all these documents filed with additional affidavit, the Petitioner Counsel submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 acknowledgement was so signed. (2) Where the writing containing the acknowledgement 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 acknowledgement 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 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 set-off, 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.2013 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 to be dismissed on the ground of bar of limitation. The Corporate Debtor Counsel has not argued over the document annexed to the affidavit filed by the Financial creditor on 04.07.2017, wherein there are several documents, which this Bench has taken into consideration, reflecting the Corporate Debtor acknowledging the liability from time to time up to 13.09.2016. 18. As to subsidy granted by Central Government which came to this loan account on 24.07.2014, the corporate debtor counsel says it cannot become an acknowledgement by the corporate debtor because this payment has not been made by the corporate debtor as part payment to survive the limitation, he says, if section 19 of Limitation Act is looked into, it is evident that such part payment shall be made by the person liable to pay the debt or his agent before the expiration of the prescribed period, since the government cannot be treated as an agent to the corporate debtor even if that payment is taken as part payment towards the loan account, it wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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) Section 14 shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. (IV) That the order of moratorium shall have effect from 14.02.2017 till completion of the corporate insolvency resolution process or until this Bench approves the resolution plan under sub-Section (1) of Section 31 or passes an order for liquidation of corporate debtor under Section 33, as the case may be. (V) That the public announcement of the corporate insolvency resolution process shall be made immediately as specified under section 13 of the Code. (VI) That this Bench hereby appoints, Mr. Dushayant C. Dave, 1101, Dalamal Tower, Nariman Point, Mumbai - 400 021 having Registration Number: IBBI/IPA-003/IP-00043/2016-17/1343, whose name has been given by the petitioner, as Interim Resolution Professional to carry the functions as mentioned under Insolvency & Bankruptcy Code. 21. Accordingly, the Petition is admitted. 22. The Registry is hereby directed to communic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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