TMI Blog2022 (11) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... d Shri Balraj Joshi : Member (Technical) For the Financial Creditor : Mr. Joy Saha , Sr.Adv. : Mr. Debasish Chakraborty,Adv. For the Corporate Debtor : Mr. Shaunak Mitra, Adv. : Mr.V.V.Sastry, Adv. ORDER Rohit Kapoor, Member (Judicial) 1. The Court convened via hybrid mode. 2. This is a Company Petition filed under section 7 of the Insolvency and Bankruptcy Code, 2016 ( the Code ) read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 by Punjab National Bank ( Financial Creditor ), by Mr. Achyut Banerjee Chief, Manager, duly authorised vide Authorization Letter dated 12 July, 2018 for initiation of Corporate Insolvency Resolution Process ( CIRP ) against Impex Ferro Tech Limited ( Corporate Debtor ). 3. The present Petition was filed on 20 July, 2018 before this Adjudicating Authority on the ground that the Corporate Debtor has defaulted in payment of a sum of Rs.40,14,94,934.51 (Rupees Forty Crores Fourteen Lakh Ninety Four Thousand Nine Hundred Thirty Four and Fifty One Paisa only), advanced by the Financial Creditor to the Corporate Debtor as a Credit Facility ( Credit facility or Loan ), including ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... follows: Standard accounts classified as NP and NPA account retained in the same category on restructuring by the bank should be upgraded only when all the outstanding loans/facilities in the account performed satisfactorily during the 'specific period' lie principal and interest on all facilities in the account are serviced as per terms of payment during that period. 5.5 Thereafter the Corporate Debtor has executed the Revival letter on 14.12.2017 to survive the limitation under section 18 of the limitation Act. The said revival letter (at Page 1541 of the section 7 application). From the Revival letter the instant section 7 is filed within the period of limitation. The said section 7 has been filed on 20.07.2018. The Financial Creditor is relying upon the following judgements to establish that from the acknowledgment of debt ,the section 7 can be filed within 3 years: i. Dena Bank (Now Bank of Baroda) - versus- C. Shiva kumar Reddy and Another - 2021 SCC Online SC 543 ii. Sesh Nath Singh v. Baidyabati Sheoraphuli Coop. Bank Ltd., (2021) 7 SCC 313 5.6 It is submitted that the company has filed balance sheet for the year ended at 2016- 2017 before the RO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor through a letter dated 26 June, 2019. However, the said offer was not accepted by the Financial Creditor (Page 8 of the Reply. 6.5 The Financial Creditor has also filed proceedings against the Corporate Debtor being O.A. No. 218 of 2018 before the Ld. Debt Recovery Tribunal, Kolkata. Hence, the Financial Creditor cannot pursue simultaneous proceedings. 6.6 Further, a winding up petition has already been admitted and advertised in respect of the Corporate Debtor herein. The winding up petition was filed by Auroma Coke Limited against the Corporate Debtor before the Hon ble High Court at Calcutta which was numbered as C. P. No. 613 of 2016. Further, the Hon'ble High Court at Calcutta by an order dated 10 August, 2018, admitted the winding up application against the Corporate Debtor (Annexure E of the Reply). 6.7 Since, the Corporate Debtor had admittedly failed to pay the sum of money to the petitioning creditor in C. P. No. 613 of 2016 in accordance with the direction passed by the Hon ble High Court at Calcutta, the winding up petition being C. P. No. 613 of 2016 was advertised in The Statesman and in Bartaman by the petitioning creditor of C. P. No. 613 of 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anee has the capacity to make the payment and/or that the bank/financial institution is able to recover the entire loan amount even by auctioning the mortgaged property/secured property, either from the loanee and/or guarantor, the bank would be justified in refusing to grant the benefit under the OTS Scheme. Ultimately, such a decision should be left to the commercial wisdom of the bank whose amount is involved and it is always to be presumed that the financial institution/bank shall take a prudent decision whether to grant the benefit or not under the OTS Scheme, having regard to the public interest involved and having regard to the factors which are narrated hereinabove. 11. Be that as it may, there is clear admission of debt by the Corporate Debtor in term of revival letter dated 14 December, 2017 as well as the Balance Sheet for the Financial Year ending on 2016-2017 filed with the Registrar of Companies, Kolkata [Dena Bank (Now Bank of Baroda) - versus- C. Shiva kumar Reddy and Another - 2021 SCC Online SC 543]. Hence, this would result in the extension of the limitation period from time to time. 12. Upon perusal of the record it is apparent that transaction between the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orate Debtor shall provide all documents in their possession and furnish every information in their knowledge to the IRP within one 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.4,00,000/- (Rupees Four 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 Maste ..... X X X X Extracts X X X X X X X X Extracts X X X X
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