TMI Blog2020 (12) TMI 876X X X X Extracts X X X X X X X X Extracts X X X X ..... imited (Corporate Debtor) being aggrieved and dissatisfied by the impugned order dated 17th July, 2020 passed by the Adjudicating Authority, National Company Law Tribunal, Mumbai Bench, Court No. II in CP No. 3460/IBC/NCLT/MB/MAH/2018, whereby and whereunder the Ld. Adjudicating Authority has admitted the Application filed by Bank of India / Financial Creditor, under Section 7 of the Insolvency and Bankruptcy Code, 2016. 2. Brief facts of the case is as under: - i) The Respondent No. 1 / Financial Creditor preferred an Application under Section 7 of the IBC against the Respondent No. 2 / Corporate Debtor on 30.08.2018 alleging debt of INR 23.90 CR, and defaulted upon allegedly on 30.06.2015. The same was allowed by the Ld. Adjudicating Authority by way of the impugned order. ii) The Respondent No. 1 is the Financial Creditor, a scheduled bank and a body constituted under the Provisions of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970. iii) The Bank of India / Financial Creditor sanctioned term loan facility of ₹ 9,00,00,000/- and a cash credit facility of ₹ 6,00,00,000/- to the Corporate Debtor vide a sanction letter dated 14.08 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he date of declaration as NPA is to be considered as date of default, the Hon ble Supreme Court has categorically held that Section 18 of the limitation Act, would not be applicable to applications under Section 7 and 9 of the IBC. Therefore, impugned order cannot be sustained in the eye of law. Submissions on behalf of the Respondent No. 1 7. The learned counsel for the Respondent No. 1 during the course of argument and in his written submissions submitted that the Appellant has been wrongly contended that the Application under Section 7 of the IBC was time barred. It is further submitted that it has been held by this Hon ble Tribunal in numerous matters that the date of default is the date of NPA. Admittedly, the date of default / NPA in the present Appeal was 31.03.2015. 8. It is further submitted that the Corporate Debtor had executed two separate Deeds of Acknowledgement of Debt and Securities on 31.08.2015, confirming and acknowledging its indebtedness to the Respondent No. 1. 9. It is further submitted that the Appellant has twice offered the OTS. It shows in the letter dated 1st April 2017 (at Annexure A/1 page 9 of the I.A.) written by Katare Spinning Mil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e arrangements for the funds. Moreover we have to bear the additional cost of ₹ 317 lakhs to run the business for 6 months. Hence, we are offering you ₹ 600 Lakhs lump sum against the full and final settlement (including repayment made by us after NPA). 4. On your confirmation. a) We will deposit 5% on your approval. b) We will match 25% of the OTS amount within 60 days subject to reopening of Hotel. c) Remaining amount will be paid within 4 months from the date of approval. 13. Reference is also made to Annexure A/5 at page 17 of the I.A. the letter dated 14.09.2020 written by Katare Spinning Mills Limited to the Bank of India, Main Branch, Solapur, caption OTS where they have stated that Settlement of our dues under BOI OTS 2020 without prejudice during pendency of this Appellate Tribunal stating interalia as follows: 8. In the above background, we request you to revive / consider our OTS proposal on following lines. i) OTS amount at ₹ 1117 lakh or lesser as per your liberalized norms for MSMEs. ii) Adjustment of ₹ 123 lakh viz. 10% of OTS amount to be earmarked out of earlier deposit of ₹ 246 Lakh a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... art of the hotel for operations. Hotel would continue to be in possession of BOI. Operations including entire cash flow could even be under the supervision of BOI official. v) Bank can release the amount paid over 10% of OTS amount to help us refurbish the hotel to the minimum extent necessary. Once in operation, we expect top line of around ₹ 300 lakh in a year estimating an ARR of ₹ 2500 and occupancy of 60%. Presuming daily expenses to be taken care of by renting of part of hotel, entire ₹ 250-₹ 300 lakh can be paid to Bank of India. Please note that we had achieved an ARR of around 2500/- in 2017 when hotel was taken possession of by BOI under SARFAESI. We could also explore contracting out dining and other business to generate some revenue to repay BOI dues. Promoters would also dispose of the assets in the meantime to repay the BOI dues before the lease period i.e. September,2023. 16. It was further submitted that the Appellant himself have given offer for settlement of the dispute from time to time under OTS Scheme and have also admitted their dues and have deposited 3 Cr. in two instalments. 17. It was further submitted that the conduct o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. The instant Appeal was filed on 07.08.2020 and the matter was taken up by this Appellate Tribunal on 17.08.2020 and notices were issued to Respondents. In the meanwhile, during the pendency of this Appeal the Appellant (herein) on 14.09.2020 by Annexure- A/5 at page 17 of the I.A. written a letter without prejudice for OTS address to Chief Manager, Bank of India Main Branch, Solapur (supra). So in view of the aforesaid documents it is crystal clear that the Appellant has admitted their dues and ready to settle the matter by OTS proposal. The conduct of the Appellant in view of the letters for OTS and in the facts and circumstances is not covered by the Judgment of Hon ble Supreme Court in Babulal Vardharji Gurjar Vs. Veer Gurjar Aluminium Industries Pvt. Ltd. Anr. (supra). The Ld. Adjudicating Authority has rightly taken notes of the facts. There is no illegality in the impugned order. The impugned order dated 17.07.2020 is affirmed. The Appeal is dismissed. ORDER 20. Having regard to the foregoing discussion, we do not find any merit in the Appeal. The Appellant has failed to demonstrate that the impugned order suffers from any legal infirmity. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
