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TMI Blog2023 (11) TMI 566X X X X Extracts X X X X X X X X Extracts X X X X ..... o time. (ii) On 30.01.2016, default took place on the part of the Corporate Debtor - Dharamraj Aluminium Industries Private Limited. On 29.04.2016, the account of the Corporate Debtor was classified as Non-Performing Asset ("NPA"). On 02.05.2016, the State Bank of India issued notice under Section 13(2) of the SARFAESI Act, 2002. O.A. No.762 of 2017 was filed by the State Bank of India seeking recovery certificate for a sum of Rs.22,27,07,356/- being outstanding as on 19.09.2016. (iii) In a winding up petition under Sections 433, 434 and 439 of the Companies Act, 1956 filed by one M/s Oswal Minerals Limited against the Corporate Debtor, the Bombay High Court allowed the winding up petition vide order dated 25.01.2018. The High Court directed that the company be wound up under the orders, direction and supervision of the Court and an Official Liquidator be appointed to take charge of the company and to conduct its affairs during the course of its winding up. (iv) A petition under Section 7 was filed by the State Bank of India before the Adjudicating Authority on 13.01.2022 claiming an amount of Rs.22,52,02,115.61/-. The date of default mentioned in the Part-IV of the Applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uest for One Time Settlement on 08.07.2021 for settlement of dues by payment of Rupees four crores, on the basis of which proposal, the Appellant is entitled for extension of limitation by virtue of Section 25, sub-section (3) of the Contract Act, 1872. 5. The learned Counsel for the Respondent refuting the submission of the learned Counsel for the Appellant submits that Application under Section 7 filed by the Appellant was clearly barred by time. Date of default being 30.01.2016 and petition having been filed on 13.01.2022, after six years, was rightly dismissed as barred by time. It is submitted that the Appellant cannot take benefit of stay of proceedings as the Appellant never tried to file any application or petition for seeking leave for initiating the proceedings against the Respondent and also the Appellant ignored the request of Liquidator by not taking any steps against the Respondent. The Liquidator on several occasions had sent letters to the Appellant for providing details of physical possession and any information regarding the assets of the Corporate Debtor. The Liquidator asked the Appellant to take steps otherwise the Office of Official Liquidator shall proceed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der: (a) that the respondent company, namely M/s. Dharmraj aluminum industries Pvt. Ltd. having its registered office at B/s, Devprayag, Bhaktimandir Marg, Opp. Thanawala Automobiles, Thane - 400 602, Maharashtra, be wound up by and under the orders, direction and supervision of this Hon'ble Court; (b) That the Official Liquidator or some other fit and proper person be appointed as Liquidator of respondent company with all powers under the provisions of Companies Act, 1956 or later enactment to take charge of respondent company and to conduct its affairs during the course of its winding up. 5. Official Liquidator to take steps immediately without waiting for notification. 6. Company petition accordingly stands disposed." 9. The Official Liquidator appointed in the winding up petition, has been in communication with the Appellant. The Appellant in his additional affidavit has informed that notice issued by Official Liquidator to the Appellant was dated 15.02.2018, where the State Bank of India - Appellant was called to attend a meeting. Copy of one of the letters sent by Official Liquidator dated 24.02.2023 has been filed along with the additional affidavit. The Liquid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... again requested to inform about the outcome of SARFAESI proceedings initiated by your bank in respect of the properties of the Company (In Liqn.) if any, so that further necessary action in the matter may be taken. Further it is to state that till date no step has been taken by you in respect of taking physical possession of the immovable property of the company (In. Liqn) situated at Plot No.M-146 MIDC, Walung, Aurangabad and Plot No.E-64, MIDC, Walung, Aurangabad. In view of the same you are once again requested to take the physical possession of the said property within seven (7) days if not, this Office of Official Liquidator shall proceed to take the physical possession of the same. This may be treated as MOST URGENT. Yours faithfully, Dy. Official Liquidator High Court Bombay" 10. The Appellant never sought leave of the Company Judge to proceed with SARFAESI proceedings. The Appellant is not entitled for the benefit of Section 14 of the Limitation Act due to pendency and winding up petition in the High Court. 11. The learned Counsel for the Respondent has relied on the judgment of this Tribunal in Company Appeal (AT) (Ins.) No.1066 of 2021 - Vedika Credit C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of want of jurisdiction. Paragraph 21 is as follows: "21. The relevant dates reveal that the cash credit account of the corporate debtor was declared NPA with effect from 31.3.2013. Proceedings under the SARFAESI Act commenced on 18-1-2014, when a demand notice was issued under Section 13(2) of the SARFAESI Act. In other words, proceedings were initiated under the SARFAESI Act, 2002, approximately months and 18 days after the date of accrual of the right to issue. The proceedings under the SARFAESI Act, 2002 were stayed by the Calcutta high Court, by an order dated 24.07.2017, on the ground of want to jurisdiction. About 11 months thereafter, while the writ petition filed by the corporate debtor was still pending in the High Court, and the interim stay of the SARFAESI Act proceedings still continuing, the financial creditor initiated the application under Section IBC." 12. Thus in the above case, the benefit of Section 14 was extended because prima facie it was proved that proceedings under SARFAESI Act were without jurisdiction. Present is not a case where it is even contended that winding up petition filed by the Appellant before the Kolkata High Court were without jurisdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment to which the consent of the promisor is freely given is not void merely because the consideration is inadequate; but the inadequacy of the consideration may be taken into account by the Court in determining the question whether the consent of the promisor was freely given. Illustrations (a) A promises, for no consideration, to give to B Rs 1000. This is a void agreement. (b) A, for natural love and affection, promises to give his son, B, Rs 1000. A puts his promise to B into writing and registers it. This is a contract. (c) A finds B's purse and gives it to him. B promises to give A Rs 50. This is a contract. (d) A supports B's infant son. B promises to pay A's expenses in so doing. This is a contract. (e) A owes B Rs 1000, but the debt is barred by the Limitation Act. A signs a written promise to pay B Rs 500 on account of the debt. This is a contract. (f) A agrees to sell a horse worth Rs 1000 for Rs 10. A's consent to the agreement was freely given. The agreement is a contract notwithstanding the inadequacy of the consideration. (g) A agrees to sell a horse worth Rs 1000 for Rs 10. A denies that his consent to the agreement was freely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Business was collapsed totally, since last year. I therefore request you, kindly to allow me an offer (OTS amount) of Rs.4.00 (CR.) which will be paid by me without fail as under.---- 1) OTS Amount 4.00 CR. 2) Amount 10% of the OTS will be paid within thirty days of OTS sanctioned Date. 3) Remaining Amount will be paid within Six Months from the date of OTS sanctioned with the regular installment without fail. Your Resolution Agency namely M/S Dynamic Financial Services Aurangabad Prop. M.V. Deshmukh personally following us for recovery. I hope you will consider my case in a sympathetic view. Thanking you, Yours faithfully Sd/- Bharat Babulal Gurjar Director (M/s Dharmraj Aluminium Industries)" 15. The said offer was rejected on 15.07.2021 by the Bank asking the Corporate Debtor to improve the offer. In the Application, which was filed under Section 7, the Appellant has not brought on record the OTS offer given by the Corporate Debtor and for the first time in the Appeal, the said document has been brought on record. The Corporate Debtor has no opportunity to file a reply to the OTS offer or to make its submission on the said letter. We, thus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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