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TMI Blog2019 (2) TMI 1865X X X X Extracts X X X X X X X X Extracts X X X X ..... mention that the 'Financial Creditor' is a wholly owned subsidiary of ICICI India. It was incorporated in England and Wales as a private company on 11.02.2003 with limited liability under the name ICICI Bank UK and was converted into a public limited company, assuming the name ICICI Bank UK PLC, on 30.10.2006. It was assigned identification No. 4663024 by the Registrar of Companies, United Kingdom. It has its Registered office at One Thomas MoreSquare, London-E IWIYN, United Kingdom. Copies of certificate of incorporation dated 11.02.2003 & dated 30.10.2006 issued under the provisions of the United Kingdom's Companies Act, 1985 have been placed on record (Annexure- 1 ) . 2. Mr. Abhimanyu Pandey, Relationship Manager of the Financial Creditor has been empowered to sign and submit the petition on the strength of the resolution of the Board of Directors dated 27.07.2018 (Annexure-2) in accordance with the provisions of the Articles of Association of the Financial Creditor. A copy of the Articles of Association of the Financial Creditor has also been placed on record (Annexure-3). 3. The Corporate Debtor-Aditya Estates Private Limited is a company registered under the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Debtor as 'Owner'; Duncan Macneil Power India Limited as 'Borrower'; ICICI Bank Limited as 'Lender' and ICICI Bank Limited as 'Attorney'. Clause '5' which is a relevant clause incorporated in the DASA is set out below verbatim. It deals with the sale of the aforesaid property of the Corporate Debtor in the event the Owner fails to deposit the total dues to the satisfaction of the Lender and reads thus:- "5. SALE PROCESS 5.1 Upon the occurrence of an Event of Default under the Facility, the Lender shall issue a notice to all the Obligors to make payment for discharge of their obligations within 7 days of the notice. 5.2 On non-payment of the dues in full to the satisfaction of the Lender within 7 days of the Demand Notice issued under clause 5.1, the Lender shall provide a notice to the Owner requesting to sell the Immovable Property with [45] days of the Demand Notice or to clear (i) the outstanding amounts under the Facility and (ii) the outstanding amounts under the facility provided by ICICI UK Plc to Assam Oil Company Limited, a company incorporated in England (collectively the "Total Dues"). The Owner may sell the Immovable P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he (i) Lender from the Borrower and (ii) subject to receipt of all necessary regulatory approvals, ICICI Bank UK Plc from AOCL, and any charges/ expenses to be paid in connection with the sale including but not limited to overdue interest, penal charges, dues to be paid to L&DO, stamp duty, tax deducted at source, other applicable statutory dues and other charges payable in relation to complete the transfer of the Immovable Property. 5.6 In case the Owner and/or the Attorney fail(s) to sell/ auction the Immovable Property and/or deposit the sale proceeds of the Immovable Property for any reason whatsoever within the timelines stipulated hereinabove, the Lender shall have a right (but not an obligation) to purchase the Immovable Property without any further notice for an amount equivalent to the Reserve Price. The Lender may pay the consideration for the purchase of the Immovable Property by adjusting the Total Dues along with any other charges/ expenses to be paid in connection with the sale including but not limited to overdue interest, penal charges, dues to be paid to L&DO, stamp duty, tax deducted at source, other applicable statutory dues and other charges payable in relatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ICICI Bank UK when all the necessary regulatory approves (including the approval from the RBI, if required) have been obtained. Upon the satisfaction of the dues payable by Assam Oil Company Limited to ICICI Bank UK and Duncan Macneill Power India Limited to ICICI Bank, ICICI Bank shall remit the residual amount out of the sale proceeds received by it to Aditya Estate Private Limited. 2.4 This Undertaking is irrevocable and shall remain in full force and effect till the UK Facility is. paid off to the satisfaction of ICICI Bank UK, upon receipt of the necessary regulatory approvals and cannot be terminated by the Obligors." 8. It is highlighted that the Articles of Association were specifically amended in February 2015 (i.e. subsequent to and in continuation of the DASA and the Multi-party Undertaking)inter alia to include the Financial Creditor as 'Lenders' in relation to the debts owed to the Financial Creditor by Assam Oil Company Limited and also imposed a restriction on the Corporate Debtor from directly or indirectly dealing with the Property without the written consent of the 'Lenders' i.e. including the Financial Creditor in line with the terms of the DAS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Debts Recovery Tribunal-Il, New Delhi, which is seized of the proceedings arising out of claims of ICICI India against M/S. Duncan Macneill Power Limited, the Corporate Debtors and others, under the provisions of Recovery of Debts and Bankruptcy Act, 1993. 12. The Hon 'ble High Court vide its orders dated 17.07.2018 & 24.07.2018 issued interim directions whereby directed the Corporate Debtor to maintain status quo with respect to the aforesaid property till 16.08.2018. Meanwhile, upon payments of the dues with respect to ICICI India, the Learned Debts Recovery Tribunal-Il, New Delhi vide its order dated 23.07.2018 directed that the pendency of a case instituted by the Financial Creditor before the UK Court, is no ground to deny the right of redemption of the aforesaid property to the Corporate Debtor. Copies of the orders of the Hon'ble High Court of Delhi dated 17.07.2018 & 24.07.2018 have been placed on record [Annexure-8 (Colly)]. 13. The Financial Creditor had also filed a claim petition before the Hon ble High Court of Justice, Business and Property Courts of England and Wales, Commercial Court (QBD) against Assam Oil Company Limited (principal borrower) and AIL Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eement. 10) A copy of the default notice dated 25 January 2018 issued by the ICICI India to the Corporate Debtor (with a copy to the Financial Creditor) under Clause 5.2 of the Debt Asset Swap Agreement inter alia for payment of the outstanding amounts towards the Financial Creditor, undertaken and guaranteed to be repaid under the terms of the Debt Asset Swap Agreement. 11) A copy of the letter dated 1 June 2018 issued by the Financial Creditor upon ICICI India (with a copy to inter alia the Corporate Debtor) seeking confirmation regarding adherence to the provisions of the Undertaking dated 14 April 2015 on account of the initiation of steps under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ("SARFAESI ACT") with respect to the property of the Corporate situated at 3, Bhagwan Das Road, New Delhi. 12) A copy of the letter dated 4 June 2018 issued by ICICI India to the Financial Creditor confirming the initiation of action under the SARFAESI Act with respect to the property of the Corporate Debtor situated at 3, Bhagwan Das Road, New Delhi and seeking confirmation from the Financial Creditor regarding outstanding dues f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Quicknet Telecom Private Limited, granted AOCL the option to sell all or any of the shares to that Put Option Provider on occurrence of events prescribed therein. Clause 1.3 of the said First Put Option records in unequivocal terms that a person who is not a party to the said Agreement has no right to enforce or enjoy the benefits of any term of the said Agreement. (b) Pursuant to the Put Option Deed, an Escrow Agreement dated December 21, 2007, was executed by the Corporate Debtor at Kolkata to place in escrow with IDBI Trusteeship Services Limited (Escrow Agent), the documents in relation to the aforesaid property. Admittedl the Res ondent had de osited the Pro ert documents not for creating any security, but only for the safe custody. The Escrow Agreement was governed by the laws of India and the High Court of Mumbai had the sole jurisdiction to decide any dispute in relation to this Escrow Agreement. (c) As a support to the Put Option, the Corporate Debtor allegedly executed a Non-Disposal Agreement dated December 21, 2007 ("the NDA"), in respect of the Property. This NDA was to expire on the expiry of the Escrow Agreement. (iii) Admittedly, the Escrow Agreement dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s entered between the ICICI India, the Corporate Debtor and Duncan on 20.12.2014. Admittedly, the Applicant is not a party to the DASA, on which reliance has been placed by the Applicant. The right of the Applicant under the DASA, if any, was subjected to an event of default in the Indian Facility and failure to repay the outstanding amount and consequent sale of the aforesaid property. (ix) AOCL, Duncan, the Corporate Debtor and Assam Company Ltd., allegedly gave an undertaking dated 14.04.2015, in favour of the Applicant and ICICI India for payment of the loan amount under UK Facility out of the sale proceeds of the aforesaid property. As per the terms of the Undertaking, the aforesaid undertakings were to kick of only in case of non-payment by Duncan and eventual sale of the property; and not otherwise. (x) In September 2016, ICICI India, on an alleged failure of Duncan to repay its loan amount under the Indian facility, filed an Original Application, being O.A. No. 742/2016, before the Debt Recovery Tribunal, Delhi (for brevity 'DRT'), for recovery of Rs. 32,96,76,730/-. The said O.A. was filed on the allegation that Duncan, the Principal Borrower, had failed to rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m passing any order of redemption of the mortgage. (xvi) The Ld. DRT vide its order dated July 23, 2018 disposed of the O.A. and the S.A. While disposing the O.A. and the S.A., the Ld. DRT rejected the contention of the ICICI India that the Corporate Debtor is not entitled to redeem the property as the claim of the Applicant is pending. The operative part of the aforesaid order is extracted hereinbelow: " 16. Further the contention of the OA bank that the security applicant is not entitled for redemption as the claim of the ICICI Bank UK Plc is pending. As per the provision of the Transfer of Property Act, the right to redeem mortgage under Section 60 of the TP Act which provided that at any time after the principal money has become due the mortgagor has a right, on payment or tender, at a Property time and place, of the mortgagemoney, to require the mortgagee (a) to deliver to the mortgagor the mortgage-deed and all documents relating to the mortgaged Property which are in possession or power of the mortgagee. 17. Thus, the pendency of a case before UK Court by ICICI Bank Plc is no ground to deny the right of redemption to the security applicant. In the circumstances, I am o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (xx) The Respondent is not a 'Corporate Debtor' as defined under sub-section 8 of Section 3 of the Code and in that regard heavy reliance has been placed on the definition of Section 3 (8) of the Code. (xxi) The Respondent submits that no evidence of default as defined under Sub-section 12 of Section 3 of the Code has occurred in the present case. The applicant has failed to demonstrate due date of alleged money though under the Code, the onus to prove the same is on the Applicant's hand. (xxii) The Respondent does not owe any liability/ debt under the UK Facility. The applicant is, admittedly, not even a party to the UK Facility Agreement. No amount was disbursed by the Applicant to the Respondent against the UK Facility. (xxiii) The applicant cannot rely upon the Indian Facility Agreement for filing the present application as the Indian Facility Agreement was entered between ICICI India and Duncan. Respondent had already paid the entire outstanding against the Indian Facility on 23.07.2018 regarding loan to Duncan and redeemed the property. After payment of the outstanding against the Indian Facility, the Indian Facility does not survive anymore. (xxiv) The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... formation utility. In that regard reliance has been placed at point no. 3 and 6 of Part V of Form 1 of the application which is blank and mentioned as 'not applicable'. (xxix) The alleged debt claimed by the Applicant from the Respondent is time barred. The applicant itself has stated that the alleged default in payment of principal by the borrower occurred on December 28, 2011. Date of alleged default in payment of interest as alleged by the applicant as December 24, 2013 and the present application has been filed on August 6, 2013 i.e. after a lapse of about five years from the date of first alleged default. 19. A rejoinder to the reply has been filed by the Financial Creditor reiterating the submissions made in the application and controverting the assertions in the reply. 20. Mr. A.S. Chandioke and Mr. Abhinav Vashisht, learned Senior Counsels have vehemently argued that the agreement between the Financial Creditor and the AOCL dated 21.12.2007 as amended on 15.02.2011 underwent a further change by DASA dated 20.12.2014. A reference has been made to the undertaking dated 14.04.2015 inter alia executed by the Corporate Debtor in favour of the Financial Creditor to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rants admission. 24. Apart from the aforesaid requirements of Insolvency and Bankruptcy Code, a reference has been made to the suit filed by the Financial Creditor before Hon 'ble Delhi High Court and the one filed before the Hon 'ble High Court of Justice, Business and Property Courts of England and Wales, Commercial Court (QBD) against the AOCL etc. 25. However, Mr. S.N Mookherjee, learned Senior Counsel for the respondent has vehemently argued that the repayment of debt claimed by the petitioner from the Corporate debtor is time barred. In that regard, reliance has been placed on the view expressed by Hon 'ble the Supreme Court in para 27 of the judgment rendered in the case of B.K EducationaZ Limited v. Parag Gupta & Associates, Civil Appeal No. 23988 of 2017, decided on 11.10.2018. Referring to the details of default, it has been pointed out that in Form I, part IV the petitioner has asserted the date of default by AOCL being 28.12.2011 and the date of commencement of default in payment of interest is claimed to be 24.12.2013.Accordingly, it has been argued by placing reliance on the views of Hon 'ble the Supreme Court that 'the right to sue' accrues ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a perusal of letters dated 01.06.2018 and 04.06.2018 written by the ICICI India which refers only to the undertaking for realising its dues and not the provisions of DASA. 29. Learned counsel further elaborated his submissions arguing that the right of ICICI India to sell the property under DASA has already extinguished and stand expired by submitting as under:- (i) The argument of the Applicant that once there is an event of default under the Indian Facility, the Respondent is bound to sell the property and repay the loans advanced under the UK facility, is untenable in view of the mandatory timeline provided for sale of the Property in case of event of default in the Indian Facility. (ii) Sale of Property as envisaged under DASA was to take place in case of default by Duncan in the repayment of the dues under the Indian Facility Agreement, in a time bound manner as stipulated in Clause 1.1 of the Dasa. The timeline provided was admittedly sacrosanct and once the timeline was missed there was no question of sale/ purchase of the property. (iii) As per the timeline under ClauSe 1.1 of DASA, sale of property under Clause 5.2 of DASA was to be completed within 45 days of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded Rupee Term Loan facility of INR to Duncan Macneill Power India Limited vide facility agreement dated November 1 7, 2014 and Bank UK mc which has extended Forei n Currenc Term Loan aciZit of United States DoZZar 63,000,000/- to Assam Oil Company Limited vide faciZity agreement dated December 21, 2007. (ii) Clause 34(c) do not stipulate the Applicant as a 'Lender' of Respondent but 'Lender' of Assam Oil Company Limited. Without prejudice to the above, it is submitted that the Applicant cannot rely on the AOA of the Respondent as it is a settled law that the Articles of a Company are simply a contract between the shareholders inter se and cannot give a right of action to a person who is not a party to the articles although named therein. Moreover, by merely referring to the Applicant and the ICICI India as "Lenders', they do not become lenders of the Respondent, unless the Respondent had received the loan amount. Admittedly, the Applicant has not disbursed any arnount to the Respondent, and therefore, it cannot become a lender of the Respondent. In any event, such a definition is only for the purposes of Article 34(a) and (b). (iii) Even otherwise, the App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken to repay the facilities owed by AOCL to the Financial Creditor. Further, under Clause 5.3 of the DASA, ICICI India (in its capacity as the attorney of the Financial Creditor) has been granted the right to sell the Property, if the Corporate Debtor fails to repay all the arnounts due to ICICI India under the India Facility Agreement and to the Financial Creditor under the UK Facility Agreement. 33. Likewise, reliance has been placed on Clause 2 of the Undertaking to show that the Financial Creditor has been granted the right to repayment of monies owed to it by the AOCL out of the sale proceeds of the Property owned by the Corporate Debtor. In that regard reliance has been placed on the judgments of the Hon 'ble Appellate Tribunal namely Dr. B. V.S. Lakshmi v. Geometrix Laser Solutions Private Limited, Company Appeal (AT) Insolvency No. 38 of 2017 (Para 29); Andhra Bank v. F.M. Hammerle Textile Limited, Company Appeal (AT) Insolvency No. 61 of 2018 (Para 9-14)) &Export Import Bank of India v. ResoZution Professional of JEKPL Private Limited, Company Appeal (AT) Insolvency No. 304 of 2017 (Para 48-50). Accordingly, it has been argued that an undertaking to repay the dues o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eement. Similar arguments have been advanced with regard to the amendment in Articles of Association carried by the Corporate Debtor which are as under:- (a) The CD has claimed that the FC cannot place reliance on Article 34(c)(i) of the AoA to place on record that the CD has acknowledged the FC as one of its lenders, as (i) AoA has since been arnended to remove Article 34(c)(i) from the AoA; and (ii) Article 34(c)(i) was inserted by coercion exerted by ICICI India/ the FC and is hence void ab initio; and (iii) the FC is not a party to/ bound by the AoA of the CD as the AoA is a contract between the members of the CD and the CD. (b) In response to 6.4 (a) (i) above, it is submitted that the deletion of Article 34 is ultra vires of the procedure laid down in the AoA and is hence invalid. It is submitted pursuant to Article 34(a) (ii) of the AoA, the AoA could only be arnended after obtaining the consent of the "lenders" as defined under the AoA. The AoA in its Article 34(4)(c) references the FC as one of the lenders. Therefore, the AoA could not have been amended to delete Article 34 without having obtained the permission from the FC. (c) Respectfully, the AoA is binding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of each instance for the compounding of the default interest (which was due and payable immediately), AOCL was liable for the entire amounts (including the principal due and payable as on that occurrence), thereby, being in the nature of a recurring cause of action. Respectfully, as evidenced from the bank account statements, the latest Interest Period for the unpaid debt by AOCL was in June/July 2018. (b) In fact, the CD has admitted the debt of AOCL towards the FC under the Undertaking and in furtherance of such admittance and part discharge of its obligations, AOCL has made a payment as recent as 20 April 2015 (as evidenced from the account statements of (AOCL)and, therefore, by way of the above the debt towards the FC is an admitted debt. Further, the notice under clause 5.1 of the DASA was issued on 16 January 2018, followed by a notice dated 25 January 2018 under clause 5.2 of the DASA. Therefore, the liability of the CD towards the FC arose upon the issuance of the notice under clause 5.2 of the DASA. It is a matter of law that first date of default is not the reference point of limitation and the last date of default and/or acknowledgement of debt serves as the starting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 21.12.2007. 5. 21.12.2007 Non Disposal agreement executed between the Corporate Debtor, Assam Oil Company Ltd. and IDBI Trusteeship Services Ltd., pursuant to which non-disposal undertaking has been given by the Corporate Debtor that during the term of the agreement, it shall not without written consent of IDBI Trusteeship Services Ltd., create any encumbrance on the Property. 6. 21.12.2007 Non-Disposal agreement executed between Assam Oil Company Ltd., IDBI Trusteeship Services Ltd. and ICICI Bank Ltd., pursuant to which a nondisposal undertaking has been given by Assam Oil Company Ltd. where by "NDU Shares" (being Equity shares in Assam Company Ltd. ("ACL") held by ICICI India on behalf of Assam Oil Company Ltd., which represent 46% of ACL's issued and paid up equity share capital), shall be exclusively held in favour of IDBI Trusteeship Services Ltd., for the benefit of the Financial Creditor. Further, as per the undertaking given in this agreement, Assam Oil Company Ltd. is under an obligation not to create or permit any encumbrance on the NDU Shares without prior written consent of the IDBI Trusteeship Services Ltd. 7. 21.12.2007 Non-disposal agreement execut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cneil Power India Limited in relation to a facility agreement executed on 17.11.2014 between Duncan Macneill Power India Ltd. & ICICI India, which was secured by a mortgage in favour of ICICI India, of the immovable property situated at 3, Bhagwan Das Road, New Delhi, 110001-India. 14. 20.12.2014 In terms of the Debt Asset Swap Agreement, the Corporate Debtor executed an Irrevocable Power of Attorney in favour of ICICI India, appointing ICICI India as its attorney, to sell, transfer, assign and/or otherwise dispose-off the Property), including through any encumbrance on the Property inter alia for satisfaction of the dues owed to ICICI India as well as the Financial Creditor. 15. 14.04.2015 Multi-Party Undertaking executed at New Delhi inter alia between the Corporate Debtor and the Financial Creditor pursuant to which the Corporate Debtor, Assam Oil Corporation Ltd. undertook to Financial Creditor, that upon sale of the property being 3, Bhagwan Das Road, New Delhi, 110001 -India, in accordance with the transaction documents upon occurrence of an event of default, any amount which is in excess of the amount required for payment of statutory dues and satisfaction of outstandi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DBI Trusteeship Services Limited which were held by ICICI India on behalf of AOCL and represented 46% of ACL's issued and paid up equity share capital. Thus, the aforesaid shares were to be held exclusively in favour of IDBI Trusteeship Services Limited for the benefit of the Financial Creditor. As per the undertaking recorded in this agreement AOCL was put under an obligation not to create or permit any encumbrance on the NDU Shares without prior written consent of the IDBI Trusteeship Services Ltd. The Non-Disposal Agreement was executed by Quicknet Telecom Private Ltd. in favour of IDBI Trusteeship Services Ltd. for the purpose of disposing of NDU shares as described in non-disposal agreement dated 21.12.2007, along with the power of attorney. It is significant to notice that a fixed and flouting security documents entered into between Assam Oil Company Limited as the Chargor and Morgan Walkers Solicitors LLP as the 'Security Agent', whereunder Assarn Oil Company Limited has inter alia undertaken to pay each of its liabilities under the facility agreement dated 21.12.2007; and has created fixed equitable charge in respect of all Real Property (as defined in the agree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een established through the aforesaid clause. The Financial Creditor has also correctly placed reliance on the amendment carried in the Articles of Association of the Corporate Debtor in February, 2015 specifically amending its Articles of Association to include the Financial Creditor as Lender in relation to the debts owed to the Financial Creditor by AOCL which is a group company of the Corporate Debtor and also imposed a restriction on the Corporate Debtor from dealing with the property at 3, Bhagwan Das Road, New Delhi without written consent of the Lender i.e. the Financial Creditor, as is provided by various clauses of DASA and the Undertaking. It is therefore, evident that reading the Facility Agreement, the provisions of DASA dated 20.12.2014, the Undertaking dated 14.04.2015 along with the amendment carried by the Corporate Debtor in its Articles of Association no doubt is left that the Corporate Debtor has acknowledged the applicant-Financial Creditor as its Financial Creditor and therefore the terms of Loan Agreement in respect of the other group companies stand incorporated. The aforesaid conclusion emerges from reading of clause 5 and its sub clauses of DASA dated 20.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules, 2016. He has further submitted that the details of default along with its dates have been clearly stated in part IV along with all the minute details. There is overwhelming evidence to prove default and name of the resolution professional has also been clearly specified. 45. It may now be examined the provisions of Section 7 (2) and Section 7 (5) of IBC which read as under: "Initiation of corporate insolvency resolution process by financial creditor. 7 (1) .................... 7 (2) The financial creditor shall make an application under sub-section (1) in such form and manner and accompanied with such fee as may be prescribed. 7 (3) .................... 7 (4) ..................... 7 (5) Where the Adjudicating Authority is satisfied that- (a) a default has occurred and the application under sub-section (2) is complete, and there is no disciplinary proceedings pending against the proposed resolution professional, it may, by order, admit such application; or (b) ................................" 46. A conjoint reading of the aforesaid provision would show that form and manner of the application has to be the one as prescribed. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of moratorium shall not apply to (a) such transactions which might be notified by the Central Government in consultation with any financial regulator; (b) a surety in a contract of guarantor to a Corporate Debtor. Additionally, the supply of essential goods or services to the Corporate Debtor as may be specified is not to be terminated or suspended or interrupted during the moratorium period. These would include supply of water, electricity and similar other services or supplies as provided by Regulation 32 of IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. 51. The Interim Resolution Professional shall perform all his functions religiously and strictly which are contemplated, interalia, by Sections 15, 17, 18, 19, 20 & 21 of the Code. He must follow best practices and principles of fairness which are to apply at various stages of Corporate Insolvency Resolution Process. His conduct should be above board & independent; and he should work with utmost integrity and honesty. It is further made clear that all the personnel connected with the Corporate Debtor, erstwhile directors, promoters or any other person associated with the Management of the Corpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imitation is 12 years. In the present case by virtue of DASA and undertaking the Corporate Debtor has undertaken to repay the debts owed to Financial Creditor. It is further fortified by amending the Articles of Association of the Corporate Debtor. The undertaking is to sell the property of the Corporate Debtor situated at House No. 3, Bhagwan Das Road, New Delhi-110001. There is already charge created on that property. Another facet is elaborated in paras 36 (a), (b) & (c) in as much as payment of interest accrued every six months and AOCL has made payment on 20.04.2015. Thereafter DASA was executed on 16.01.2018 showing the Financial Creditor as beneficiary which was followed by a notice dated 25.01.2018 under Clause 5.2 of DASA. It is rightly submitted by Mr. Vashisht, learned Senior Counsel that last date of default and/or acknowledgment of debt serves as a starting point for calculation of limitation period. We also accept the submission of Mr. Vashisht as noted in detail in paras 36 (a), (b) & (c) of this order. Therefore, we have no hesitation in rejecting the argument based on limitation period. 55. The other arguments have already been answered and we do not wish to repea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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