9911796707
TMI Blog2023 (6) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... Per : Justice Rakesh Kumar Jain : This order shall dispose of two appeals i.e. CA (AT) (Ins) No. 1527 of 2022 titled as Mohan Nathuram Sakpal Vs. State Bank of India & Anr. (In short 'first appeal') and CA (AT) (Ins) No. 1526 of 2022 titled as Sundar Nagar Co-operative Housing Societies Union Limited Vs. State Bank of India & Anr. (In short '2nd appeal') as both the appeals have been filed against the same impugned order dated 06.12.2022 by which an application filed under Section 7 of the Insolvency and Bankruptcy Code, 2016 (in short 'Code') r/w Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (in short 'Rules') by State Bank of India (Financial Creditor) against A A Estates Private Limited (Corporate Debtor) for the resolution of an unresolved financial debt of Rs. 1,35,26,12,129/- inclusive of interest and penal interest has been admitted. 2. The first appeal has been filed by a shareholder/director of the Corporate Debtor whereas 2nd appeal has been filed by a federal society comprising of nine societies incorporated under the provisions of Maharashtra Co-operative Societies Act, 1960. 3. The brief facts of this case are that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he DCCO did not occur on 30.06.2014 i.e. twelve months from the original DCCO, the account of the Corporate Debtor was classified as NPA on 30.06.2014, in terms of the guidelines issued by the Reserve Bank of India. The Financial Creditor issued a legal demand notice dated 02.03.2015 to the Corporate Debtor and the personal guarantors under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) recalling the total outstanding liability due and owed to the Financial Creditor but the Corporate Debtor did not remedy the default, therefore, the Financial Creditor served possession notice dated 01.07.2015 intimating the Corporate Debtor that it has taken over physical possession of the land on 27.06.2015 and has initiated the sale process of the said land for recovery of the debt, but the Financial Creditor did not receive any bids. 7. The Financial Creditor vide legal demand notice dated 05.04.2016, served upon the Corporate Debtor, recalled the entire outstanding dues alongwith interest payable and also filed an original application on 01.07.2016 against the Corporate Debtor and the Guarantors before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hnu Aggarwal (Supra) is under challenge before the Hon'ble Supreme Court in Civil Appeal No. 878 of 2019 in which status quo has been ordered to be maintained. 13. As regards, the different dates of default are concerned, it is submitted by the Financial Creditor that the loan account of the Corporate Debtor was restructured in the month of March 2014 upon the requests of the Corporate Debtor and the terms were modified to shift the DCCO by 12 months from June 2013 to June 2014 which is evidenced by the revival letter, letter of arrangement and rectification deed. Thereafter, part payment of Rs. 50 lakhs was received from the Corporate Debtor on 01.06.2015 which was the last payment, therefore, the date of default has rightly been considered by the Financial Creditor as 01.06.2015 in regard to the remaining amount due from the Corporate Debtor. It is further alleged that after restructuring, there was further default and the Financial Creditor was bound to further declare the account as NPA on 27.02.2015 which was intimated to the Corporate Debtor vide demand notice dated 02.03.2015, however, since the Corporate Debtor failed to adhere to the revised DCCO, the account was classifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in so far as Phase 1 is concerned, the Corporate Debtor has constructed Wings B to E of rehabilitation buildings and has handed over possession to 255 members out of the total 315 members. Even for the sale buildings, Wings A, B, C, D & E are undergoing construction and 184 flats have been sold to third parties. It is alleged that the Corporate Debtor has rehabilitated 75% of the members of the society and presently 60 members remain to be rehabilitated. 16. In both the appeals, Counsel for the Appellant has argued that the order of admission deserves to be set aside on the ground that the application filed under Section 7 was barred by limitation. In this regard, it was submitted that the date of default mentioned in part IV of the application under Section 7 of the Code is 01.06.2015 whereas the application itself has been filed on 15.01.2021. It was submitted that the period of limitation for the purpose of filing of an application under Section 7 of the Code is three years from the date of default which had expired on 01.06.2018. 17. In this regard, Counsel for the Respondent has submitted that in between the period 01.06.2015 to 01.06.2018, the Corporate Debtor acknowledge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has relied upon a decision in the case of Dr. Vishnu Aggarwal (Supra) in which it has been held that the Financial Creditor cannot initiate two separate CIRP for the same set of debt. 22. In this regard, Counsel for the Financial Creditor has submitted that in the case of Dr. Vishnu Aggarwal (Supra) CIRP was initiated against the two corporate guarantors as compared to one and the decision of this Tribunal in the case of Dr. Vishnu Aggarwal (Supra) has already been challenged before the Hon'ble Supreme Court in which status quo has been ordered to be maintained whereas in another case of this Tribunal in State Bank of India Vs. Athena Energy Ventures Private Limited, it was held that the CIRP can be initiated against both the borrower and the guarantors. 23. We have heard Counsel for the parties in this regard. In so far as the decision in the case of Dr. Vishnu Aggarwal (Supra), relied upon by the Appellant is concerned, in that case the application under Section 7 was filed against two Corporate Guarantors whereas in the case of Athena Energy Ventures Pvt. Ltd. (Supra) it was against the borrower and the guarantor. Moreover, the decision in the case of Dr. Vishnu Aggarwal (Supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 which was disposed of on 22.09.2022 with the following observations "The elucidation in paragraph 90 and other paragraphs were made in the context of the case at hand. It is well settled that judgments and observations in judgments are not to be read as provisions of statute. Judicial utterances and/or pronouncements are in the setting of the facts of a particular case. To interpret words and provisions of a statute, it may become necessary for the Judges to embark upon lengthy discussions. The words of Judges interpreting statutes are not to be interpreted as statutes." 27. We have heard Counsel for the parties and are of the considered opinion that in the given facts and circumstances of the case Vidarbha Industries Power Limited (Supra), relied upon by the Appellant, is not applicable because there is a clear admission on the part of the Corporate Debtor of the amount of debt due in view of the letter dated 31.01.2018. 28. The Hon'ble Supreme Court in the case of M. Suresh Kumar Reddy Vs. Canara Bank & Ors. Civil Appeal No. 7121 of 2022 decided on 11.05.2023 has held that : "13. Thus, it was clarified by the order in review that the decision in the case of Vidarbha Industr ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
