TMI Blog2022 (6) TMI 620X X X X Extracts X X X X X X X X Extracts X X X X ..... h various documents as indicated herein. The present petition filed by the Financial Creditor is complete in all respects as required by law. The Petition establishes that the Corporate Debtor is in default of a debt due and payable and that the default is more than the minimum amount stipulated under section 4 (1) of the Code, stipulated at the relevant point of time - Petition admitted - moratorium declared. - C. P (IB) No. 588/KB/2020 - - - Dated:- 10-6-2022 - Mr. Rohit Kapoor, Member (Judicial) And Mr. Harish Chander Suri, Member (Technical) For Financial Creditor : Mr. Joy Saha, Sr. Adv. Mr. Pratik Shanu, Adv. Mr. NilanjanBhattacharjee, Adv. For Corporate Debtor : Mr. KrishnarajThaker, Adv. : Mr. Rahul Poddar, Adv. Mr. Sayantaan Das, Adv. ORDER Per: Rohit Kapoor, Member (Judicial) 1. The court is convened by video conference today. 2. This Petition under Section 7 of the Insolvency and Bankruptcy Code, 2016 read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 has been filed by Export-import Bank of India(hereinafter referred to as the Financial Creditor),seeking initiation of Corporate Insolve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor created a mortgage by executing a Memorandum of Deposit dated 21 August, 2009 whereby the immovable property mentioned in part II therein (Junjer No. 74, Property No. 84 in Sy No. 39 admeasuring to an extent of 4 Acres 34 Guntas out of the total of 6 Acres 7 Guntas situated at Kammasandra Agrahara, village: Kasaba Hobili, Anekal, Taluk, Bangalore District) was secured on paripassu first charge basis to the Financial Creditor and State Bank of India and on second charge basis to the other lenders. A copy of which is annexed as Annexure J. 9. The Corporate Debtor created another mortgage by executing a Memorandum of Deposit dated 31st May, 2010 whereby the immovable property mentioned therein (Over 2 Acres 24 Guntas of land at Ankel, Village and Taluk Bangalore) was secured on pari passu first charge basis to the Financial Creditor and State Bank of India and on second charge basis to the other lenders A copy of such Memorandum of Deposit dated 31 May, 2020 is annexed as Annexure K. 10. The Corporate Debtor in the meanwhile was facing financial distress and towards the end of the year 2011, the Corporate Debtor was unable to pay the outstanding amounts of the Financial Cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 44 in the Bommasandra Industrial Area, Bommasandra Village, Attibele Hobli, Anekal Taluk, Bangalore District. Property was secured on parripassu firs charge basis to the Financial Creditor and State Bank of India and on second charge basis to the other lenders. Copies of such Memorandums of Deposits are annexed hereto and marked as Annexure P. 15. Thereafter, the Financial Creditor along with the State Bank of India and the Corporate Debtor had entered into a Master Restructuring Agreement dated 28 May, 2012 with the other lenders of the Corporate Debtor who were part of the consortium providing working capital to the Corporate Debtor. In terms of the Master Restructuring Agreement, the Corporate Debtor had irrevocably acknowledged and confirmed the existence of various credit facilities availed from different lenders. A copy is annexed hereto and marked as Annexure -Q. 16. Thereafter, the Financial Creditor along with other lenders entered into a Working Capital consortium Agreement dated 15 January, 2013 with the Corporate Debtor whereby the Allahabad Bank was recognized as the Lead Bank and the Corporate Debtor admitted of having availed the working capital faciliti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of meeting 20th of August, 2014 as Annexure- W. 22. The Corporate Debtor availed of the aforesaid credit facilities but failed to repay the said facilities in conformity with the terms and conditions on the basis of which it was granted and the Corporate Debtor started defaulting in liquidating the outstanding/ dues under the credit facilities on account of interest as well as principal amount and the account of the Corporate Debtor was declared as a non performing asset (NPA). 23. Thereafter, the Financial Creditor was left with no option but to recall the loan sanctioned to the Corporate Debtor by its letter dated 11 September, 2014. A copy of the said letter is marked as Annexure- X. 24. By a letter dated 16 September, 2014 the Corporate Debtor expressed its inability to service the debts on time and had requested the Financial Creditor to consider one-time settlement proposal. A copy of letter is annexed as Annexure- Y. 25. Since the Corporate Debtor was not paying any heed to the requests of the Financial Creditor, it was constrained to issue a demand notice to the Corporate Debtor, Mr Shyam Sundar Shah and Mr Sundeep Shah 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 ..... further interest @ 14% per annum from 13 September, 2016. 29. While one of the guarantors Mr. Shyam Sunder Shah had passed away, the application against the Corporate Debtor and its personal guarantor being O.A No. 77 of 2016 is still pending before the DRT, Kolkata. 30. In the meanwhile, the Financial Creditor has come to know that all the other lenders of the Corporate Debtor have either made one-time settlement and/or had assigned their debts to Assets Reconstruction Companies and the Financial Creditor along with ASREC, who has been assigned the term loan sanctioned by State Bank of India to the Corporate Debtor are the only existing term loan lenders. The Corporate Debtor had made various offers to the Financial Creditor for one-time settlement by its letters dated 21 December, 2015, 16 August 2017, 13 October 2017, 22 December 2017, 28 February 2018, 31 January 2019, 2 March 2019. However, the Financial Creditor did not accept such offers as the value of such offers were very low and the value of the assets of the Corporate Debtor is significantly higher than the amount owed by the Corporate Debtor. The Financial Creditor has clearly communicated the reasons for non-acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Institutions Act, 1993 before the Debt Recovery Tribunal, Kolkata against both the Corporate Debtor and its personal guarantors, being O.A. No. 77 of 2017 on, which is still pending [Pg 22, Para 27 CP]. 36. Debt admitted in the Balance Sheet for FY 2018-19 [Pg 426 at Pgs. 484 and 495 of CP]. Submissions by the Corporate Debtor in its Reply 37. The Corporate Debtor had taken loan facilities from a consortium of 11 Banks. 38. Subsequently, a CDR Scheme of the CD was undertaken and Allahabad Bank was designated as the Lead Banker. The Corporate Debtor was honouring the commitments under the CDR Scheme, inter alia, by infusing a sum of Rs. 14.66 Crores through the promoter and not redeeming its preference shares of Rs. 14.79 Crores due for redemption in April 2020 till such time as the entire dues of Banks and Financial Institutions were repaid. 39. The OTS after offer of the Corporate Debtor was not considered by the Lead Bank and the Corporate Debtor revised the OTS offer to Rs. 160 Crores on 29.05.2014 and finally to a sum of Rs. 170 Crores on 28.06.2014 40. On September 11, 2014, the Financial Creditor recalled the loan granted to the Corporate Debtor 41. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Orders 43. We have heard the Ld. Senior Counsel appearing on behalf of the Financial Creditor and the Ld. Counsel appearing on behalf of the Corporate Debtor. The issue involves in this instant matter is whether the Petition under section 7 of the Code is barred by limitation or not? 44. Upon perusal of the record it is apparent that transaction between the parties was purely financial in nature and from time to time the terms and conditions were also revised. Further, the balance sheet of the Corporate Debtor for the Financial Year 2018 -2019 reflects that there are admitted dues of the Financial Creditor, which are duly acknowledged by the Corporate Debtor (at page 437 of the Petition). 45. We also noticed that the through various letters dated 21 December, 2015 (at page 506 of the Petition), 16 August, 2017(at page 508 of the Petition), 13 October 2017 (at page 509 of the Petition), 28 February, 2018 (at page 517 of the Petition), 31 January, 2019 (at page 547 of the Petition) and 02 March, 2019 (at page 550 of the Petition) the Corporate Debtor acknowledged the debt and tried to settle the same. 46. In Laxmi Pat Surana V. Union Bank of India Anr, decided on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Section 18 of the Limitation Act is applicable to applications filed under Section 7 of the Code. In case the application under Section 7 is filed beyond the period of three years from the date of default and the financial creditor furnishes the required information relating to the acknowledgement of debt, in writing by the corporate debtor, before the Adjudicating Authority, with such acknowledgement having taken place within the initial period of three years from the date of default, a fresh period of limitation commences and the application can be entertained, if filed within this extended period. 48. In light of the above facts and circumstances there has been continuous acknowledgement by the Corporate Debtor, which would extend the limitation period from time to time. 49. From the records produced before the Adjudicating Authority, it is clear that there is a debt due and payable by the Financial Creditor to the Corporate Debtor and there is a default on the part of the Corporate Debtor. 50. It is also apparent from the above referred record that there is an admission of debt by the Corporate Debtor through various documents as indicated herein. 51. The p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... week from the date of receipt of this Order, in default of which coercive steps will follow. No separate notice for cooperation by the suspended management should be expected. (g) The IRP/RP shall submit to this Adjudicating Authority periodical report with regard to the progress of the CIRP in respect of the Corporate Debtor. (h) The Financial Creditor shall deposit a sum of Rs.5,00,000/- (Rupees Five Lakh only) with the IRP to meet the expenses arising out of issuing public notice and inviting claims. These expenses are subject to approval by the Committee of Creditors (CoC). (i) In terms of section 7(5)(a) of the Code, Court Officer of this Court is hereby directed to communicate this Order to the Financial Creditor, the Corporate Debtor and the IRP by Speed Post and email immediately, and in any case, not later than two days from the date of this Order. (j) Additionally, the Financial Creditor shall serve a copy of this Order on the IRP and on the Registrar of Companies, West Bengal, Kolkata by all available means for updating the Master Data of the Corporate Debtor. The said Registrar of Companies shall send a compliance report in this regard to the Registry of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
