TMI Blog2021 (10) TMI 1313X X X X Extracts X X X X X X X X Extracts X X X X ..... 31st March, 2019, the details of debentures issued by UTI is mentioned along with the fact that the same was recalled in the Financial Year 2002-2003. Here, the Bench would like to reiterate that the Petition was filed on 6th November, 2018. Thus, it is clear that there has been acknowledgement of debt as per the financial filings of the Corporate Debtor with RoC regularly and year after year and thus it would fairly constitute as the acknowledgement under Section 18 of the Limitation Act, 1963. Petition admitted - moratorium declared. - C.P. No.4277/MB/I&B/2018 - - - Dated:- 7-10-2021 - Hon ble Shri H. V. Subba Rao, Member (Judicial) And Hon ble Shri Chandra Bhan Singh, Member (Technical) For the Petitioner: Ms. Manaswi Agarwal, Advocate. For the Respondent: Mr. Gautam Ankhad, Advocate a/w Ms. Pavitra Pillay, Advocate, i/b Kanga Company. ORDER Per: Chandra Bhan Singh, Member (Technical) 1. This Company Petition is filed by Phoenix ARC Private Limited, Trustee of Phoenix Trust FY 15-14, (hereinafter called Petitioner ) seeking to set in motion the Corporate Insolvency Resolution Process (CIRP) against Ajanta Paper and General Products Limited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 04th December, 2014, UTI (Assignor) assigned all the rights, title and interest in the Financial Facility in favour of the Petitioner. Thus, the Petitioner acted in favour of UTI in respect of the debt owned by the Corporate Debtor to UTI. Further, as per the Subscription Agreement dated 15th June, 1998 executed by the Corporate Debtor in favour of the Assignor, the Corporate Debtor was liable to repay the Financial Facility in 6 annual instalments after the expiry of the second year from the respective dates of allotments. 6. But the Corporate Debtor failed to repay the Financial Facility as per the agreed terms and conditions. Thus, UTI issued a Recall Notice dated 10th October, 2002 to the Corporate Debtor calling upon them to repay the entire outstanding amounts under the Financial Facility as on 30th September, 2002. 7. Despite receipt of the Recall Notice, the Corporate Debtor failed to repay the outstanding amounts. Therefore, the Petitioner filed this Petition praying for the admission of the Petition and commencement of CIRP against the Corporate Debtor. Contentions of the Corporate Debtor: 8. The Corporate Debtor in its reply contended that on a caref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... created on the ownership rights of the Corporate Debtor on 14th October, 1998. In addition, charge has also been created on all the movable properties of the Corporate Debtor including Plant and Machinery both present and future. The Bench notes that it is admitted position that a Secured Redeemable Non-Convertible Debentures of ₹ 5 crores along with interest has been provided by way of financial facility to the Corporate Debtor. However, the only point of defence raised by the Corporate Debtor is that the Petition is time barred and therefore, should be dismissed. 16. The Corporate Debtor in his reply mentions that records in the balance sheet does not amount to unequivocal acknowledgment as per provisions of the Section 18 of the Limitation Act. 17. Since the Corporate Debtor admitted its liabilities towards the financial facilities, the Bench would not dwell on the debt and disbursal aspect of the facility. However, only aspect to be seen by this Bench relates to the limitation aspect and whether the Petition which has been filed on 6th November, 2018 is as barred by time. 18. In order to deal with the issue of limitation, the Petitioners have submitted an additi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the debentures issued by Unit Trust of India which stood subsequently transferred to Phoenic ARC Private Limited. It clearly mentions amount as on 31st March, 2017 stands at ₹ 10,62,92,521/- along with Interest. The Snapshot of the same is as follows: 23. Again, in the balance sheet for the year ended 31st March, 2017, there is a mention of the outstanding non-convertible debentures of ₹ 5,00,000 having face value of ₹ 100 each outstanding at the end of the year. The snapshot of the same is as follows: 24. Similarly, for the financial year 1st April, 2018 to 31st March, 2019, the details of debentures issued by UTI is mentioned along with the fact that the same was recalled in the Financial Year 2002-2003. Here, the Bench would like to reiterate that the Petition was filed on 6th November, 2018. 25. This Bench would like to refer to recent judgement of Hon ble Supreme Court in the Dena Bank vs. C. Shivakumar Reddy on 4 August, 2021 wherein the Hon ble Supreme Court has mentioned the following: 141. Section 18 of the Limitation Act cannot also be construed with pedantic rigidity in relation to proceedings under the IBC. This Court se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... towards the initial CIRP cost by way of a Demand Draft drawn in favour of the Interim Resolution Professional appointed herein, immediately upon communication of this Order. d. That this Bench hereby prohibits 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; transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; 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 Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the Corporate Debtor. e. That the supply of essential goods or services to the Corporate Debtor, if continuing, shall not be terminated or suspended or interrupted during moratorium period. f. That the provisions of sub-section (1) of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
