TMI Blog2022 (8) TMI 650X X X X Extracts X X X X X X X X Extracts X X X X ..... f delay is the discretionary jurisdiction conferred on the Courts and Tribunals and the Courts and Tribunals while dealing with the applications of condonation of delay have to liberally condone the delay in order to meet the ends of justice. At the same time, a duty is cast upon the Applicant to broadly and properly explain the overall delay. When once the Petitioner properly explains the delay, the number of days delay to be condoned is immaterial - Condonation of delay is the discretionary jurisdiction conferred on the Courts and Tribunals and the Courts and Tribunals while dealing with the applications of condonation of delay have to liberally condone the delay in order to meet the ends of justice. At the same time, a duty is cast upon the Applicant to broadly and properly explain the overall delay. When once the Petitioner properly explains the delay, the number of days delay to be condoned is immaterial It is the admitted case of the Petitioner that the default in this case was occurred way back in 2013 and the State Bank of Patiala initiated recovery measures by filing various proceedings in 2014 itself and the present Company Petition is filed in 2019. Since this Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e State Bank of Patiala have considered the above request of Respondent through its Directors and have sanctioned (i) Term Loan I (Corporate Loan) of Rs.5,00,00,000/ , (ii) Term Loan II of Rs.5,00,00,000/-, (iii) Term Loan III (Crop Loan) of Rs.2,00,00,000/- totaling to Rs. 12,00,00,000/- (iv) Cash Credit Limit of Rs.3,50,00,000/- with a sub limit of FBP/FBD of Rs.2,00,00,000/ (within the overall limit of Rs.3,50,00,000/-) and (v) Letter of Credit Limit of Rs.50,00,000/- Grand Total of Rs.16,00,00,000/- against Hypothecation of Fixed Assets to be created under the Project including equitable mortgage of land under the Project vide Sanction Letter bearing Ref. No. NO/ADV dated 11.08.2007, upon Respondent through its Directors executing necessary security document in favour of erstwhile State Bank of Patiala and have passed necessary Board Resolution dated 11.08.2007 passed by Respondent i.e. M/s. Deccan Florabase Pvt. Ltd. 4. The Applicant further states that in order to secure the above Credit Facilities, Respondent through its Director Late Shri. Avinash C. Rangnekar have deposited the original Title Deeds and documents on behalf of the Respondent in respect of their Property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hree Only). However, Respondent have failed and Neglected to repay the outstanding dues. 9. The Respondent is liable to pay to the Applicants the outstanding amounts of Rs.50,23,75,899.89 as on 15.09.2019 along with further Interest/charges as on date. 9. In view of the above the circumstances and events leading to the filing Of the present Application are substantiated in detail, which make out A clear case for initiation of Corporate Insolvency Resolution process against the Respondent Company by this Hon ble Tribunal are mentioned in list of dates and events. 10. The Applicant further states that the Respondent has admitted their liability in the last Balance Sheet dated 31.03.2011 and further submits that the Respondent has not paid the admitted liabilities which is in continuing matter. The Applicant further states that they have filed an Original Application (O.A.) bearing O. A. No. 1514 of 2016 for recovery of the outstanding dues before DRT-I Mumbai in the year 2014. The Respondents have mortgaged their properties in or about 2007, if the mortgage is legally executable under the Limitation Act, the limitation period for filing the Suit is 12 years, Article 62/63 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt for recovery of its dues. 17. It is submitted during the period from 13.03.2016 till date of filing CIRP application, the Applicant on one hand was exploring all the options available under law for recovery of its legitimate dues and on other hand was also negotiating for settlement. The Applicant submits that the Respondent is not in a financial position to pay off its debts and the securities are deteriorating day by day and there is no prospect of receiving any payment from the Respondent even after giving sufficient reminders and considerable time. The Applicant is a secured creditor and its securities is in danger. The Applicant submits that there is no dispute with regards to liability and as such the Applicant has excellent chances of succeeding in the Company Petition (IB) in case the delay of 1150 days is condoned by this Hon ble Tribunal. 18. It is submitted that the Hon ble Supreme Court in case of B.K Educational Services Pvt. Ltd. V. Parag Gupta Associates have observed as under: 27. It is thus clear that since the Limitation Act is applicable to Applications filed under Sections 7 and 9 of the Code from the inception of the Code, Article 137 of the Limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd to condone the delay in filing the Company Petition. 23. The present Interlocutory Application for Condonation of Delay is made bonafide. The Applicant further submits that if this Interlocutory Application is not allowed serious harm, loss and injury will be caused to the Applicant. No prejudice will be caused to the Respondents if the present Application is allowed. The submissions of the Respondent are as follows 24. Mr. Anirudh Rangnekar, Director of the Corporate Debtor filed affidavit in Reply for the limited purpose of bringing to the notice of this Hon ble Court that the said Application is totally misconceived and that the contentions and submissions raised in the said Application are liable to be rejected. The company s board resolution authorising Aniruddh to execute this affidavit on behalf of the company has already been filed. 25. The Respondent deny each and every allegation, averment, insinuation, contention and/or submission raised in the said Application, which is inconsistent with and/ or contrary to what is stated herein in the said Reply as if the same is set out and nothing Contained in the said Application shall be deemed to have been admi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent deal with reference to paragraph 14 of the said Application, the contents contained therein are denied in toto and the deponent is put to strict proof thereof. It is pertinent to know that the Applicant has pleaded in the OA filed before the Hon ble DRT that the NPA date was in the year 2013. On this ground alone, the said Application ought to be dismissed. Assuming without admitting that there was a continuing cause of action ensuing to the Applicant s favour then there is no reason as to why the Applicant has filed the said Application as the same would be unnecessary. Knowing fully well that the captioned Company Petition is barred by the law of limitation, the Applicant as a last-ditch effort has filed the said Application even though the same is contrary to settled law. With reference to paragraph 19 of the said Application, the contents contained therein are true and correct. It is settled law that the limitation for initiation of proceedings under the IBC Code is three years from the date of default. 31. The Respondent further submit that as the NPA date was way back in the year 2010, the calculation of the days for delay computation cannot be 1150 days as plea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the options available under law for recovery of its legitimate dues and on the other hand was also negotiating for settlement. The Petitioner except devoting more space in pleading various facts with regard to initiating various proceedings against the Corporate Debtor for recovery before the DRT etc. did not explain even a single day s delay. 3. Even according to the Petitioner, the loan facilities were availed by the Corporate Debtor from the original lender State Bank of Patiala way back in 2007 and the State Bank of Patiala already initiated measures under SARFAESI Act as well as RDDB Act against the Corporate Debtor for recovery way back in 2014. Similarly, the State Bank of Patiala was merged with the present Financial Creditor namely, State Bank of India by way of amalgamation through gazette notification dated 22.02.2017. Under these circumstances, this Bench is unable to understand, as to how the Petitioner can seek condonation of delay caused by State Bank of Patiala prior to its merger. Similarly, no reasons were assigned by the Petitioner anywhere in the application with regard to the delay from 22.02.2017 till the date of filing the above I.A. In addition to the abo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
