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TMI Blog2020 (3) TMI 1350X X X X Extracts X X X X X X X X Extracts X X X X ..... sion in the Union Budget 2004-05, a Special Purpose Vehicle (SPV) Trust for acquiring stressed and non-performing assets of erstwhile Industrial Development Bank of India. SASF has been accorded the status of Financial Institution to take advantage of provision of the Recovery of Debts due to Banks and Financial Institutions, 1993 by approaching Debt Recovery Tribunal (DRT) as well as Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act 2002, Corporate Debt Restructuring (CDR) mechanism for resolution of the assets acquired." Therefore, the petitioner claims itself to be a Financial Creditor as being notified as a Financial Institution within the meaning of Section 2(h)(ii) of the Recovery of Debts Due to Banks and Financial Institution Act, 1993 read with Section 2(m)(ii) of the SARFAESI Act, 2002 as per Central Government Notification vide S.O. No. 2505 dated 29.09.2004. It is informed that the Petitioner, SASF was incorporated on 24.09.2004 with an identification number: AAETS8709G. the SASF is being managed by a Board of Trustees with Mr. Rakesh Sharma as its Chairman. The registered office of SASF is located at: IDBI Tower ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Corporate Debtor for an amount of Rs. 3011=00 Lakhs. However, the Respondent failed in to comply with the terms and conditions of settlement package, hence, later on the Petitioner revoked such settlement package. 7. It is stated that the Respondent/Corporate Debtor filed a reference before the Board of Industrial and Financial Reconstruction (BIFR), New Delhi, which registered the reference as Case No. 20/2007 under Section 15(1) of the Sick Industrial Companies (Special Provisions) Act, 1985 ("SICA"). 8. It is further stated that the SICA got repealed with effect from 01.12.2016 under the provision of Section 1(2) of the Sick Industrial Companies (Special Provisions) Repeal Act, 2003 (1 of 2004) [vide Government of India, Ministry of Finance, Department of Financial Services, New Delhi's Notification dated 25.11.2016 under S.O. No. 3568(E)]. Hence, Therefore, the Petitioner proceeded to move the present application under Section 7 to trigger the Corporate Insolvency Resolution Process ("CIRP") in respect of the Respondent/Corporate Debtor Company. 9. It is stated that, earlier, the Petitioner had issued a notice dated 17.06.2008 under Section 13(2) of the SARFAESI Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision in the matter of ARCIL Vs. Neesa Leisure decided on 26.04.2019. 14. The Respondent/Corporate Debtor has also raised an issue of limitation in Para 23 to 28 of its reply affidavit, which has also been replied as follows. 15. The Respondent, contending that it approached the Petitioner for One Time Settlement ("OTS") and in response to this, the Petitioner had conveyed its approval of OTS (on certain terms and conditions attached within), vide its letter dated 20.04.2005 (annexed at Page 104 of the petition) but the Respondent failed in to comply with these terms and conditions. Hence, the Petitioner withdrew the offer of OTS vide a letter dated 17.08.2006 (Page No. 106 of the present petition). The Respondent filed a reference before BIFR in February 2007 on the basis of its audited balance sheets as on 31.12.2006, which was registered as a case no. 20/2007 by the SICA. The Respondent/Corporate Debtor, for this purpose filed Form-A before the BIFR, mentioning the company is 'temporarily closed' and the BIFR dismissed the reference by order dated 04.05.2009 as being non-maintainable. The Respondent thereafter filed an appeal before AAIFER and by its order dated 21.06. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such objection has further clarified the issue in its written submission by stating that the financial assistance granted to the Corporate Debtor was restructured by the IDBI in the form 01 subscription issue of non-convertible debentures ("NCD") of Rs. 31.71 crores vide sanction letter dated 18.02.1999 and the said NCDs carried interest at the rate of 16.50% per annum with the first instalment of interest for broken period from the date of subscription to 30.09.1999 was to be paid by the Corporate Debtor on 01.10.1999 and subsequently on the first of every month. Thus, by taking the principal amount outstanding for Rs. 31.71 Crores as on 24.03.1999, total unpaid interest, penalty and charges accrued up to 01.12.2018 (total 17 years) for Rs. 563,39,01,165=00 has been added to the total outstanding dues for Rs. 600,10,01,165=00. Hence, it is stated to be calculated properly in accordance with the terms and conditions of sanction letter which has been accepted by the Respondent/Corporate Debtor Company. 21. We examined the above stated issue on its merits and have gone through the averments made by both the parties in their respective pleadings, i.e. application/objections, I.B. Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of its debt liability to the extent of certain sum of Rs. 300 Lakhs which is obviously more than of rupees one lakh. Hence, the Corporate Insolvency Resolution Process (C.I.R.P.) can very well be triggered in respect of the Corporate Debtor provided that such petition is filed within the limitation period. 26. As per record, it is further admitted position in the matter that having made proposal for settlement in 2005, the Corporate Debtor itself moved a reference in February, 2007 before the BIFR, under the provision of SICA and such BIFR reference was kept pending till 01.12.2016, when the present I.B. Code came in to force. By operation of this, the proceedings pending under the provision of SICA Act stood abated. Therefore, the commencement of limitation for the present matter would start from the date acknowledgement for debts due and payable under one time settlement, i.e. 26.08.2008 (the date of reply admitting of debt) or 20.04.2005 the date of OTS which was assured to be complied with by the Corporate Debtor. Further, the period spent in during the pendency of SICA proceedings is required to be excluded. It is further found that the present petition is filed within the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ick Industrial Companies Act, 1985 has been repealed by way of a notification dated 25.11.2016 published by the Government of India with effect from 01.12.2016. That the loan of Corporate Debtor was recalled on 09.04.2018 and O.A. was filed in DRT-II, Delhi for recovery against the Corporate Debtor. 4. Oral arguments were also heard and order was reserved on 23.07.2019. As directed vide order dated 23.07.2019 the petitioner have also filled written submissions. We have gone through the documents filed by both the parties and heard the arguments and perused written submissions made by both the counsels. Respondent contends that the date of default in the present case is 01.04.2000 and 03.04.2000 and yet the petitioner is mute about the steps taken by IDBI and the petitioner during the period 2000 to 2019 for seeking recovery of the alleged dues. While going through the documents Tribunal observed that based on the balance sheet of corporate debtor as on 31.12.2006 filed an application under Section 15(1) of Sick Industrial Companies Act, 1985 before BIFR in January 2007 which was admitted as case no. 09/2007 and was pending before BIFR till the SICA Act, 1985, was repealed and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orium. This Adjudicating Authority also appoints Mr. Jigar Pradipchandra Shah, B-801, Gopal Palace, Near Shiromani Complex, Nehrunagar Cross Roads, Ahmedabad, Gujarat having Registration No. IBBI/IPA-001/IP-P01121/2018-19/11820 as Interim Resolution Professional under Section 13(1)(a) of the Code. 31. Further, this Adjudicating Authority hereby order for declaration of moratorium under Section 13(1)(a) prohibiting the following as laid down in Section 14 of the Code, which reads as under: Ia. 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 (54 of 2002); d. the recovery of any property by an owner o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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