TMI Blog2018 (12) TMI 1372X X X X Extracts X X X X X X X X Extracts X X X X ..... in the amount of debt between both the parties. The Tribunal is of the opinion that there is in existence a dispute before the petition was filed in this Tribunal and hence under the provisions of the IBC, 2016 the petition stands dismissed. - C. P. No. 774 /(IB)/ 2018 and M. A. No. 426 /(IB)/ 2018. - - - Dated:- 30-10-2018 - B. S. V. Prakash Kumar Judicial Member And S. Vijayaraghavan Technical Member For the Corporate Debtor.: V. V. Sivakumar and M/S. Dua Associates for the applicant/financial creditor. Ms. Sharon Elizabeth and M/S. Ramasubramaniam And Associates ORDER S. VIJAYARAGHAVAN (TECHNICAL MEMBER).- Under consideration is a company petition filed by M/s. International Asset Reconstruction Co. P. Ltd. (in short the applicant/financial creditor) against M/s. Paramount Mills P. Ltd. (in short the corporate debtor) under section 7 of the Insolvency and Bankruptcy Code, 2016 (in short the IB Code, 2016) read with rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity, the IB Rules 2016 ). 1. The corporate debtor is a private limited company incorporated under the Companies Act, 1956 on February ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... financial creditor (annexures 37, 38 and 39). 4. The aforesaid facility was renewed favourably by the assignor of the financial creditor, at the request made by the borrowers, vide sanction letters dated December 30, 2009 and October 27, 2010 (annexures 34 and 35). The corporate debtor had defaulted in the repayment of the amounts due to the assignor of the financial creditor and consequently, its account was declared as a non-performing asset on September 30, 2011 (annexure 40). 5. The assignor of the financial creditor issued a demand notice dated December 19, 2011 under section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 to the respondent/corporate debtor upon for repayment of the then outstanding sum of ₹ 2,40,66,657.67, to which no objection was received under section 13(3) and (3A) of the SARFAESI Act (annexure 41). On July 6, 2012 the assignor of the financial creditor took symbolic possession of the mortgaged securities. A publication was made in the newspapers and a possession notice was also duly affixed on the outer door being a conspicuous place of the property (annexure 42). Subsequently, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cal possession of the property and also pointed out that custodian agreement stands terminated due to efflux of time. Pursuant to the defaults of TVKL, the financial creditor is entitled to forfeit the aforesaid sum of ₹ 2.16 crores. It has been stated that towards the outstanding dues, the corporate debtor had executed acknowledgment of debts dated May 18, 2007 and April 27, 2010 (annexures 33 and 39) in terms of section 18 of the Limitation Act, 1963, acknowledging its liability towards the financial creditor with respect to aforesaid credit facilities availed whereby the corporate debtor acknowledged the outstanding debt of ₹ 6,39,39,004.01 as of March 29, 2007 and ₹ 4,83,66,919.70 as of February 28, 2010. The financial creditor has filed a suit vide O. A. No. 378 of 2013 on the file of the Debts Recovery Tribunal at Madurai and enforcement proceedings under the provisions of the SARFAESI Act to enforce payment of money secured by a mortgage charged upon immovable property within time. Article 62 of the Schedule to the Limitation Act is the relevant provision to show that the financial creditor's claim is not barred by limitation. 9. The corporate debtor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h post-dated cheques from the TVKL Properties P. Ltd., for the balance payment to be paid. A sum of ₹ 93 lakhs to be paid by November 16, 2015 the third tranche of payment of ₹ 93 lakhs on or before December 16, 2015 and the last tranche of ₹ 94 lakhs on or before December 31, 2015 apart from this the respondent was supposed to withdraw the writ petition filed in the Madurai Bench and S. A. No. 197 of 2014 filed before the Debts Recovery Tribunal, Madurai before execution of the assignment agreement in favour of TVKL Properties P. Ltd. 12. It has been submitted that under the said arrangement the respondent through another company, J. R. Scrips paid a sum of ₹ 1 crore on October 20, 2015 to the applicant herein. On November 12, 2015 the proposed assignee TVKL Properties P. Ltd., through another company, Briarknoll Mills made a payment of ₹ 31 lakhs, on November 13, 2015 another sum of ₹ 62 lakhs was paid through J. R. Scrips, on December 17, 2015 a sum of ₹ 18 lakhs was transferred through J. R. Scrips to the applicant. On March 1, 2016 a sum of ₹ 5 lakhs was transferred through Briarknoll Mills. In total a sum of ₹ 2.16 cror ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty dismissed in order to pass a clear title to TVKL Properties P. Ltd., as agreed upon under the terms of assignment of debt agreed upon by the applicant to TVKL Properties P. Ltd. 15. It was also agreed upon by the applicant and TVKL Properties to take necessary legal remedies to remove the attachment on this property by IDBI Bank and to get a clear direction to the Registrar of land, Thirumangalam to allow and permit sale transaction of the said property in order to facilitate payment of balance amount towards the loan repayable by the respondent. 16. It has been submitted that the financial creditor instead of taking steps to get the order of attachment dismissed has conveniently opted for calling upon TVKL Properties P. Ltd., to hand over the physical possession of the property under the custodian agreement. And now the applicant has initiated the present process as against the respondent as if there is a huge amount of ₹ 6,08,65,428.53 due to be paid as on December 31, 2017 without giving credit to the various amounts that was being paid from October 20, 2015 to March 1, 2016 amounting to ₹ 2.16 crores. The statement of account relied upon by the applica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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