TMI Blog2023 (12) TMI 1172X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by information of default from an information utility is to be rejected and if the Financial Creditor has filed other evidence to prove default which is contemplated by the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 and the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, the said application has not to be considered - even after amendment of Regulation 20 by insertion of Regulation 20(1A) w.e.f 14.06.2022, Financial Creditor is entitled to file evidence of record of default as contemplated by Regulation 2A of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 r/w Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 - there are no substance in the submission of the Appellant that since Financial Creditor has not filed the record of default from an information utility, Section 7 deserves to be rejected - the Adjudicating Authority has correctly repelled the contention of the Appellant that in absence of a record of default recorded by information utility, the application filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se Rate of the Bank per annum with monthly rests or at such rates as may prevail from time to time. (iii) The Corporate Debtor did not operate the account in accordance with banking norms and failed to maintain financial discipline and defaulted to pay the instalments of loan amounts as also the interest due thereon. The facility extended to the Corporate Debtor were classified as Non- Performing Asset ( NPA ) with effect from 13.03.2017. (iv) The Bank filed OA No.615 of 2017 on 26.05.2017 against the Corporate Debtor and its guarantor for recovery of amount of Rs.7,85,62,274/- along with interest. The Bank of Baroda, before filing the above OA, has issued a Demand Notice dated 06.05.2017 under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest ( SARFAESI ) Act, 2002. The loan having not been discharged, the Bank proceeded under Section 13(4) of the SARFAESI Act and took symbolic possession of the secured immovable properties of the Corporate Debtor through possession notice dated 13.09.2017. (v) The Appellant on 03.01.2018 and 10.01.2018 gave settlement proposal for Rs.275 lacs and Rs.280 lacs respectively, which w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 7 the aggregate amount of principal and interest defaulted to be paid by the Corporate Debtor was calculated as Rs.13,49,47,775.57/- and date of default was mentioned as 13.03.2017. The details and particular of the OA No.615 of 2017 filed by the Bank was also mentioned in the Application. Several other documents were filed by the Financial Creditor in support of Section 7 Application. Reply to Section 7 Application was filed by the Corporate Debtor. (xii) The Adjudicating Authority after hearing the Financial Creditor as well as the Corporate Debtor, by the impugned order dated 26.07.2023 admitted Section 7 Application. (xiii) The Adjudicating Authority held that Application filed by Financial Creditor is not barred by time. The Corporate Debtor having made several OTS proposal and lastly on 03.11.2020, is an acknowledgement of the default amount, hence the Application filed within three years from the date of acknowledgement, is well within time. The Adjudicating Authority held that Financial Creditor has furnished certified copy of entries in the relevant account in Banker s Book, and has also enclosed statement of account in respect of two accounts along with interes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebtor and other two group companies. Appellant may submit OTS proposal within 10 days from today and the Bank thereafter within 10 days may consider the OTS Proposal. 4. Learned Counsel for the IRP is present and submits that he has constituted the Committee of Creditors on 16th August, 2023. 5. List this Appeal on 20th September, 2023. In the meantime, IRP may not take any further steps in the CIRP till the next date. 4. On 20.09.2023, when again the matter was taken up, learned Counsel for the Bank submitted that OTS proposal, which has been submitted by the Appellant has not been approved and a communication dated 18.09.2023 was sent to the Appellant. The learned Counsel for the Appellant submitted that they will further approach the Bank and following order was passed on 20.09.2023: 20.09.2023: Learned counsel for the Bank submits that OTS proposal which has been submitted by the Appellant has not been approved and on 18.09.2023 a communication has been sent in this regard. Learned counsel for the Appellant submits that after communication dated 18.09.2023 Appellant received email to further approach the Bank. He seeks adjournment. Appeal is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opportunity, no further time shall be allowed to the Appellant. In event, no settlement takes place, the matter shall finally be heard on merits. 5. Mr. Yash Karan Jain, Learned Counsel seeks liberty to file Vakalatnama during the course of the day. Prayer is allowed. 7. The Appeal came for hearing before the Tribunal on 04.12.2023, on which date learned Counsel for the Bank submitted that no settlement could take place. Recording the aforesaid submission, the interim order was vacated. 8. Shri Deepak Khosla, learned Counsel appeared on behalf of the Appellant and made elaborate oral submissions in support of the Appeal. The learned Counsel for the Appellant also handed over one page note for consideration of the Court. After hearing the learned Counsel for the Appellant and the Bank of Baroda, the order was reserved. The learned Counsel for the Appellant has also made a request to submit a copy of written note, which was not acceded to, since the Appellant had already made elaborate oral submissions. On same day, i.e., 04.12.2023 at 5:51 P.M., an email was sent by learned Counsel for the Appellant addressed to learned Counsel who appeared for the Bank of Baroda, cop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : SHORT NOTE MAIN PRAYER FOR 04-12-2023 : 1. The Hon ble Tribunal may be pleased to issue notice on the appeal to Bank of Baroda, the respondent herein, who be directed to file a Reply to the Appeal by way of a specific and detailed Affidavit. 2. The impugned order be stayed. In the lesser-preferred alternative : the existing interim relief granted on 18-08-2023 be directed to continue (namely, that the IRP will not take further steps in the CIRP till disposal of the appeal). 13 MAIN GROUNDS : 1. NO JURISDICTION NON-COMPLIANCE WITH A MANDATORY REQUIREMENT OF THE CODE : The scheme of the IBC is not about debt . It is about default i.e. admitted default (and only in light of which admission has it been provided that Section 7 proceedings are summary in nature no adjudication). Because of the pre-existing dispute (please see below), the bank has deliberately not complied with the requirement of filing proof of debt lodged by it with an Information Utility. This is a mandatory requirement. On this count alone, the appeal deserves to succeed. THE MORE DRACONIAN / ONE-SIDED A LAW THE MORE MANDATORY IS THE ST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .28 cr 207.99 cr i.e. ~ 8x excess by 181.71 crs Note : Figure in column (3) is not any claim made by the bank in the Commercial Suit, but is what has been demanded by it from time to time. 3. NO COUNTER-CLAIM / SET-OFF FILED BY BANK IN COMMERCIAL SUIT : The bank has not filed any counterclaim, or claimed any set-off, in the Commercial Suit. Hence, it is barred from filing the IBC petition by virtue of Order II (Rule 2) of the CPC when read with Order VIII [Rule 6a(4)]. Not asking for a set-off on account of its own OA before DRT is undoubtedly in view of no reply to the counter-claim since July 2023. 4. MALICIOUS INITIATION OF IBC : The bank has only filed Section 7 against Company (a) above i.e. Cygnus Splendid Ltd, and not against Company (b) and (c) i.e. Sunway Infrastructure Services Ltd nor against Cygnus Equipments and Rentals Ltd, because those companies have huge demands in the Commercial Suit. This is patently malicious, as the objective is not insolvency-resolution , but merely a pressurizing tactic. 5. PRE-EXISTING DISPUTE : The counter-claim pending at DRT Delhi since 24-09-2020 for Rs. 45.00 crores, plus the su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointed, who will then bury the suit for the undue benefit of such Financial Creditor. 9. LEGAL CONUNDRUM : Since the RP is an appointee of the Financial Creditor, and if the IBC process is allowed to go forward, this means that the suit on behalf of the Corporate Debtor can only be prosecuted by him, which means that since all actions of the RP are dictated by the Financial Creditor, it is clear that no steps will be taken by the Financial Creditor to ensure that the RP diligently prosecutes the suit against his own nominator i.e. the same Financial Creditor. In fact, the very filing of the Section 7 petition constitutes criminal contempt of court on the part of the bank, as the intent is to ensure that the Corporate Debtor cannot prosecute the suit against the bank. 10. LIMITATION : The Section 7 petition was barred by limitation. It was filed on 12-01-2023, whereas the date of default accepted by NCLT (para 10) was 13-03-2017. But to allow the petition, NCLT (para 11) has referred to a letter dated 03-11-2020 to adopt the view that the Sec. 7 petition is within limitation. However, it omitted to note that this letter was Without Prejudice . 11. WITH ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... please see Peacock Plywood. 13. POWER OF ATTORNEY : The Financial Creditor had authorized one Nidhi Kumar through a Power of Attorney dated 01-09-2021 to act on its behalf, but Ms. Nidhi Kumar nominated Mr. Pawan Sharma to be true and lawful Attorney of the Financial Creditor. Thus, the Sec. 7 petition was not maintainable, not being filed by authorized representative of the Petitioner, for the reason that the Power of Attorney does not envisage the aforesaid Ms. Nidi Kumar delegating her own authority to her nominee, Mr. Pawa Sharma. Therefore, this is a classic case of delegatus non potest delegare. The Power of Attorney has been appended as Annexure MMM, Vol. 8, Pages 1501-1507. Therefore, on this ground also, the impugned order is a nullity in law, as NCLT has no jurisdiction to entertain and act on a petition filed by a person other than an authorised person. 12. The learned Counsel for the Bank opposing the submissions of learned Counsel for the Appellant submits that Appellant having throughout acknowledged the debt and had also taken several opportunities in this Appeal also to settle the default and having failed to do so, cannot be allowed to contend tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 240 of the Insolvency and Bankruptcy Code, 2016. Regulation 20 as amended w.e.f 14.06.2022 which is sheet anchor of the submission of the Appellant is as follows:- 20. Acceptance and receipt of information.- (1) An information utility shall accept information submitted by a user in Form C of the Schedule. [(1A) Before filing an application to initiate corporate insolvency resolution process under section 7 or 9, as the case may be, the creditor shall file the information of default, with the information utility and the information utility shall process the information for the purpose of issuing record of default in accordance with regulation 21.] (2) On receipt of the information submitted under sub-regulation (1) [or sub regulation (1A), as the case may be], the information utility shall- (a) assign a unique identifier to the information, including records of debt; (b) acknowledge its receipt, and notify the user of- (i) the unique identifier of the information; (ii) the terms and conditions of authentication and verification of information; and (iii) the manner in which the information may be accessed by other parties. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utilities will record the status of authentication of information of default as indicated in the Table 2 below: TABLE-2 Sl. No. Response of the Debtor Status of Authentication Colour of the Status (1) (2) (3) (4) 1 Debtor confirms the information of default, Or (b) Debtor does not respond even after three reminders Authenticated Green 2 Debtor disputes the information of default Disputed Red (4) After recording the status of information of default under sub-regulation (3), the information utility shall communicate the status of authentication in physical or electronic form of the relevant colour, as indicated in column (4) of the Tables 1 or 2, as the case may be, by issuing a record of default in Form D of the Schedule, to the registered users who are- (a) creditors of the debtor who has defaulted in payment of a debt; (b) partie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kh.11 of village Dahiyaki South: kh. no 365 West: part of Khasra No. 361,363 and 366 of plot no 4B Admeasuring 1276.55 sq meters, in the name of the Corporate Debtor. 2. PARTICULARS OF AN ORDER OF A COURT, TRIBUNAL OR ARBITRAL PANEL ADJUDICATING ON THE DEFAULT, IF ANY (ATTACH A COPY OF THE ORDER) That on 26.05.2017, the Financial Creditor filed an Original Application/recovery suit under Section 19 of The Recovery of Debts and Bankruptcy Act, 1993 before the Hon'ble Debt Recovery Tribunal-11, New Delhi bearing OA No. 615 of 2017 for an amount of Rs. 7,85,62,274/- (Rupees Seven Crores Eighty Five Lacs Sixty Two Thousand Two Hundred And Seventy Four) due and payable at the time, along with further interest at contracted rates and other charges as applicable. That the Hon'ble Debt Recovery Tribunal, New Delhi was pleased to issue notice in the said OA and the OA is currently pending adjudication. 3. RECORD OF DEFAULT WITH THE INFORMATION UTILITY, IF ANY (ATTACH A COPY OF SUCH RECORD) 4. DETAILS SUCCESSION OF CERTIFICAT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... LIA/ADV/2013-14/ A-8 2. A copy of board resolution dated 13.03.2014 passed by the board of directors of the Corporate Debtor A-9 3. A copy of the Reconstitution Letter dated 30.04.2014 A-10 4. A copy of the Term Loan Agreement dated 30.04.2014 A-11 5. A copy of Demand Promissory Note (Term Loan) dated 30.04.2014 A-12 6. A copy of Demand Promissory Note (Cash Credit) dated30.04.2014 A-13 7. A copy Letter of Instalments dated 30.04.2014 A-14 8. A copy of Letter of Continuing Security dated 30.04.2014 A-15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 7 of the IBC deals with initiation of corporate insolvency resolution process by financial creditor . Section 7(2) provides that Financial Creditor shall make an application under sub-section (1) in such form and manner and accompanied with such fee as may be prescribed. Sub-section (3) of Section 7 provides that the financial creditor shall, along with the application furnish record of the default recorded with the information utility or such other record or evidence of default as may be specified. Sub-sections (2) and (3) are as follows:- 7. Initiation of corporate insolvency resolution process by financial creditor. - (2) The financial creditor shall make an application under subsection (1) in such form and manner and accompanied with such fee as may be prescribed. (3) The financial creditor shall, along with the application furnish (a) record of the default recorded with the information utility or such other record or evidence of default as may be specified; (b )the name of the resolution professional proposed to act as an interim resolution professional; and (c) any other information as may be specified by the Board. 21. Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cant shall serve a copy of the application to the registered office of the corporate debtor and to the Board, by registered post or speed post or by hand or by electronic means, before filing with the Adjudicating Authority.] (4) In case the application is made jointly by financial creditors, they may nominate one amongst them to act on their behalf. 24. Sub-Rule (1) of Rule 4 requires that the application under Section 7 in Form 1 is to be accompanied with documents and records required therein and as specified in the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. We have already noticed Part-V of Form-1 particulars of financial debt (documents, records and evidence of default) in which application has to be filed by the Financial Creditor. 25. When we look into Part-V, it is clear that Item No.3 records of default with the information utility, if any, is mentioned and Item No.5, the latest and complete copy of the financial contract, Item No.6, record of default as available with any credit information company and Item No.7, copies of entries in a bankers book in accordance with the Bankers Books ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rces which evidences a financial debt. Paragraphs 54 and 55 of the judgment are as follows:- 54. It is clear from these sections that information in respect of debts incurred by financial debtors is easily available through information utilities which, under the Insolvency and Bankruptcy Board of India (Information Utilities) Regulations, 2017 (Information Utilities Regulations), are to satisfy themselves that information provided as to the debt is accurate. This is done by giving notice to the corporate debtor who then has an opportunity to correct such information. 55. Apart from the record maintained by such utility, Form I appended to the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, makes it clear that the following are other sources which evidence a financial debt: (a) Particulars of security held, if any, the date of its creation, its estimated value as per the creditor; (b) Certificate of registration of charge issued by the Registrar of Companies (if the corporate debtor is a company); (c) Order of a court, tribunal or arbitral panel adjudicating on the default; (d) Record of default with the information u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al creditor is at liberty to submit such other record of default as may be specified which is a statutory provision contained in Section 7. Further Regulation 2A of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 clearly refers to provide for record or evidence of default by financial creditor. We have also noticed that the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 which are Rules framed by the Central Government provides for filing of the application under Section 7 in Form-1 and under Form-1, Part-V under particulars of financial debt (documents, records and evidence of default) , it is not only the record of default with information utility but other record of default has also been contemplated. We have noticed that Regulations framed by the Board as per Section 240(1) has to be consistent with provisions of the Code and the Rules. If Regulation 20(1A) is to be read as Regulation now mandating the Financial Creditor to file only the record of default in the information utility, the said Regulation will not be consistent with provision of Section 7(3) of the Code and Rule 4 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicating Authority. It is useful to extract the following observations in paragraph 11 of the judgment of the Adjudicating Authority:- As far as the plea of default being not recorded with the information utility is concerned, as can be seen from Section 7 (3)(a) of the IBC, 2016, along with the application, the Financial Creditor may furnish the record of default recorded with the information utility or such other or record or evidence of default as may be specified. Besides, as can be seen from Regulation 2A of IBBI (Insolvency Resolution Process for Corporate Persons Regulations), 2016, for the purpose of Clause (a) of sub-section 3 of Section 7 of the Code (ibid), the Financial Creditor may furnish a certified copy of entries in the relevant account in Banker's Book as evidence of default. In the present case, the Petitioner has enclosed the copies of the statement of account in respect of Account Nos. 05860600004851 and 05860500000127 along with the interest calculation sheet and Certificate under Section 2(A) of Banker's Book Evidence Act, 1891, as Annexure-7 to the Petition, which is valid evidence in terms of the provisions of Regulation 2A(a) of IBBI (CIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 29 and 30 of the judgment, following has been held:- 29. The scheme of Section 7 stands in contrast with the scheme under 9 Section 8 where an operational creditor is, on the occurrence of a default, to first deliver a demand notice of the unpaid debt to the operational debtor in the manner provided in Section 8(1) of the Code. Under Section 8(2), the corporate debtor can, within a period of 10 days of receipt of the demand notice or copy of the invoice mentioned in sub-section (1), bring to the notice of the operational creditor the existence of a dispute or the record of the pendency of a suit or arbitration proceedings, which is pre-existing-i.e. before such notice or invoice was received by the corporate debtor. The moment there is existence of such a dispute, the operational creditor gets out of the clutches of the Code. 30. On the other hand, as we have seen, in the case of a corporate debtor who commits a default of a financial debt, the adjudicating authority has merely to see the records of the information utility or other evidence produced by the financial creditor to satisfy itself that a default has occurred. It is of no matter that the debt is disputed so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 35. The mere fact that the Corporate Debtor has filed a counter claim and has also filed money suit cannot negate the existence of debt and default which was proved by the Financial Creditor by filing relevant materials before the Adjudicating Authority which included copies of entries in a bankers book pertaining to both the loan accounts of the Corporate Debtor as well as the statement of account filed along with the Section 7 application. We, thus, do not find any substance in the submission of the Appellant that since the counter claim or money suit has been filed there is no debt. 36. Under Ground No.4, Appellant s claim that the bank has filed Section 7 application only against the Corporate Debtor and not against two other sisters companies because those companies have huge demands in the Commercial Suit, which according to the Appellant is patently malicious. We have already noticed that before filing Section 7 application, the bank has already initiated proceedings under Section 13(2) and (4) of the SARFAESI Act, 2002 against the Corporate Debtor. Mere not filing Section 7 application against other two sister companies of the Corporate Debtor cannot lead to any c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or, it cannot be said that any liability has arisen which has to be reflected in the financial balance sheet of the year ending 31.03.2023. We have already taken the view that the plea of pre-existing dispute is not relevant with regard to financial debt when debt is due on the Corporate Debtor and he commits default. The submission of the Appellant that the plea of preexisting dispute which is applicable with regard to operational debt should also be applied on principle of priority with the financial creditor is totally against the statutory scheme as delineated by the Code. We do not find any substance in the submission. 41. Under Ground No.9 under the heading legal conundrum , the Appellant submits that since the Resolution Professional is an appointee of the Financial Creditor, and if the IBC process is allowed to go forward, this means that the suit on behalf of the Corporate Debtor can only be prosecuted by him, which means that since all actions of the Resolution Professional are dictated by the Financial Creditor, it is clear that no steps will be taken by the Financial Creditor to ensure that the Resolution Professional diligently prosecutes the suit against his own n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9.2019, 23.09.2019, 16.12.2019, 21.09.2020 and 03.11.2020 (collectively annexed herewith as Annexure A-5 (Colly)) iii. The Hon'ble Supreme Court of India vide its' order dated 10.01.2022 in SMW(C) No. 3 of 2020, excluded the period between 15 March 2020 to 28 February 2022 for the purpose of computing the period of limitation on account of the Covid-19 pandemic (order dated 10.01.2022 is annexed herewith as Annexure A-6) Workings for computation of amount and days of default are contained in the statements of accounts and the respective interest calculation sheets enclosed herewith. 44. It is well settled by the Hon ble Supreme Court that any acknowledgment of liability by a Corporate Debtor is acknowledgment within the meaning of Section 18 of the Limitation Act. Hon ble Supreme Court in Dena Bank (Now Bank of Baroda) vs. C. Shivakumar Reddy and Anr- (2021) 10 SCC 330 laid down following in paragraph 139:- 139. Section 18 of the Limitation Act cannot also be construed with pedantic rigidity in relation to proceedings under the IBC. This Court sees no reason why an offer of one-time settlement of a live claim, made within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Appellant has relied on paragraph 43 of the judgment which paragraph 43 of the judgment is as follows:- 43. In Phipson on Evidence, 16th Edn., pp. 655-57, it is stated: Without prejudice privilege is seen as a form of privilege and usually treated as such. It does not, however, have the same attributes as the law of privilege. Privilege can be waived at the behest of the party entitled to the privilege. Without prejudice privilege can only normally be waived with the consent of both parties to the correspondence. Whilst the rule in privilege is 'once privileged, always privileged', the rule for without prejudice is less straightforward, and at least in three-party cases, this will not always be the position. A third distinction is that in the three- party situation, which is not governed by contract, without prejudice documents are only protected in circumstances where a public policy justification can be provided, namely, where the issue is whether admissions were made. That is not a principle applicable in the law of privilege. Fourthly, whereas legal professional privilege is a substantive right, without prejudice privilege is generally a rule of admissibi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he parties positively want any subsequent court to see the correspondence and always had in mind that it should be open correspondence. It may be a nice point whether negotiations at which no one mentioned the words 'without prejudice' should be admitted in evidence: for example at an early meeting between the parties when the dispute first developed. There is no easy rule here. On the other hand, even when a letter is sent as the 'opening shot' in negotiations, and is not preceded by any previous correspondence, it may be without prejudice. There are authorities in both directions on this and it will depend on the facts. It has been said that if one is seeking to change the basis of the correspondence from without prejudice to open it is incumbent on that person to make the change clear, although that may be more a pointer than a rule. There is no reason why every letter for which without prejudice is claimed should contain an offer or consideration of an offer, so long as the without prejudice correspondence is part of a body of negotiation correspondence. 47. Paragraph 43 of the judgment only extract Phipson on Evidence, 16th Edn. Pp. 655-57. Paragrap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. It said: (WLR p. 2091, para 83) 83. Here, the [respondent], Mr Rashid was not offering any concession. On the contrary, he was seeking one in respect of an undisputed debt. Neither an offer of payment nor actual payment . (emphasis in original) We, thus, find that the mere introduction of the words without prejudice have no significance and the debtor clearly acknowledged the debt even after action was initiated under the Act and even after payment of a smaller sum, the debtor has consistently refused to pay up. 48. The above judgment of the Hon ble Supreme Court in ITC Ltd. v. Blue Coast Hotels Ltd. (supra) fully covers the issue raised by the Appellant. There is clear acknowledgment of debt in various letters for One Time Settlement as given by the Appellant which was also pleaded categorically clearly in Section 7 Application. We have already noticed that in pursuance of One Time Settlement, amount of Rs.2 Crore is claimed to be deposited by the Appellant and other two companies those One Time settlement offers were clear acknowledgment of Corporate Debtor its liability and dues and showed his anxiety to settle the issue. We have already notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cuments filed at Page Nos. 1502-1507. The Power of Attorney refers to Power of Attorney dated 01.09.2021 which empowers Nidhi Kumar to nominate, constitute and appoint. Following statement in Power of Attorney given by Nidhi Sharma is as follows:- NOW KNOW YE AND THESE PRESENTS WITNESS that by virtue of the said Power to substitute contained in the said Power of Attorney dated 1st September 2021 for all or any of the Powers contained therein and enabling me, I hereby nominate, constitute and appoint Mr. Pawan Sharma, (EC No. 102555), now in the service of the Bank as Senior Manager at Zonal Stressed Asset Recovery Branch (ZOSARB), New Delhi and who has been identified for posting at Zonal Stressed Asset Recovery Branch (ZOSARB), New Delhi to be the true and lawful attorney of the Bank at New Delhi or any place or places in India (including Head office at Baroda) or at any other place or places abroad for and on behalf of the Bank and in the name of the Bank or in my name to do and perform all or any of the acts, matters, powers and things set out in the Schedule hereto which I am authorised to do and perform by virtue of the said Power of Attorney dated 1st September 2021 in t ..... 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