TaxTMI 
TaxTMI 
2019 (10) TMI 280
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....e Resolution, dated 02.05.2018, authorizing Shri Ajay Kumar Raina for proceedings under the Code is filed at Annexure-2 of the petition. 2. The copy of certificate of incorporation and! Memorandum and Articles of Association of Corporate Debtor are stated to be filed at Annexure-3 (Colly) of the petition. Corporate Debtor is stated to be incorporated on 30.03.1991 and the registered address is stated to be 17-Cantonment, Amritsar, Punjab-143 001. Therefore, the jurisdiction lies with this Bench of the Tribunal. 3. It is stated in Part-IV of Form No.1 that the Corporate Debtor was granted various credit facilities by Bank of Punjab Limited. Thereafter in the year 2005, the said Bank got merged with Centurion Bank of Punjab Limited (CBOP) and the entire assets and liabilities of the Corporate Debtor were taken over by CBOP. The sanctioned credit facilities are as under:- (i) On 21.05.1996, Bank of Punjab Limited sanctioned the following credit facility as follows:- Nature of Credit Facility Amount (in Rs.) Fund Based 1000 lacs Non-fund Based 200 lacs It is stated that these limits were restructured from time to time. (ii) On 29.01.2000, Bank of Punjab Limited sancti....
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....ation of machinery and there is also collateral security by way of mortgage of properties including flats in the name of company, agricultural land situated at Village Chaba, District and Tehsil Amritsar and One Rice Mill of the company. It is further stated that the acknowledgment letters for deposit of title deeds of two flats in the name of the company situated in Mumbai dated 25.06.1996, and 1.06.1996, are filed at Annexures-14 and 15 of the petition. The statement of accounts pertaining to the loan account and overdue export bills duly certified under the Bankers Books Evidence 1891 are stated to be attached as Annexure 25 and 31 of the petition. It is stated that the debts and securities stand acknowledged by Board Resolutions dated 24.09.2002 and 18.02.2002. Also, copy of balance confirmation letters by the Financial Creditor are attached as Annexure-32 of the petition. 6. It is stated that due to default payment of instalments of loan, the account was classified as NPA on 31.12.2004. 7. It is further averred that such debt was assigned by the Centurion Bank of Punjab Limited (Assignor) to Kotak Mahindra Bank Limited (Assignee) vide Deed of Assignment dated 27.09.2007. Cop....
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....Mumbai, wherein it was directed to take possession of the secured assets viz. (1). Flat No. 9, Mashrique Building, 2nd Floor, 227 P.D. Mello Road Fort Mumbai and (2). Flat at 20, 4th Floor, India House No. 4, Co-op Housing Society Ltd, August Kranti Marg, Kemp's Corner, Mumbai. 14. Thereafter, the Financial Creditor got published Sale/Auction Notice under the provisions of SARFAESI Act, 2002 on 20.06.2014. 15. In Part-Ill of Form No.1 Shri Hemanshu Jetley, Regn. No. IBBI/IPA-001/IP-P00219/2017-18/10457 has been proposed as Interim Resolution Professional (IRP). Form No.2 dated 10.09.2018 submitted by the proposed IRP is stated to be attached as Annexure-6, of the petition. 16. Vide order dated 26.10.2018, notice of the petition was directed to be issued to Corporate Debtor. Reply has been filed by Corporate Debtor by Diary No. 638, dated 07.02.2019. It is stated that the Corporate Debtor had secured a credit facility from CBOP and in August, 2016, CBOP had approved the proposal for One-Time Settlement (OTS) of Rs. 750 lac in full and final settlement of the debt. A reference letter in this regard is placed on record as Annexure R-2 (Diary No. 638 dated 07.02.2019). It is further....
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....Nos. 8337-8338 of 2017) wherein it was held that the definition of "debt due", under the Code refers to a debt which is due and payable and are not time barred. Also, learned counsel places reliance on another judgment of Hon'ble Supreme Court in the case of B.K Educational Services (P.) Ltd. vs. Parag Gupta And Associate wherein it was held that the provisions of Limitation Act, 1963 are very well applicable to the IBC Code, 2016. The respondent also makes out a case that the debt due is hopelessly time-barred and IBC proceedings cannot be triggered in the year 2018, for the same cause of action. 21. It is also submitted that the petitioner Bank has no legal right to demand any amount which is in excess of the amount invested by it on behalf of the respondent Corporate Debtor and any such demand would be in violation of agreement dated 17.04.2007. 22. Rejoinder was filed vide Diary No. 1045, dated 01.03.2019. It is stated that the respondent-Corporate Debtor had submitted a proposal of OTS through its counsel for a sum of Rs. 4.35 crore but the same was rejected by the Financial Creditor. Copy of the said letter dated 09.04.2015, is attached as Annexure A-34 (Diary No. 1045). 2....
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....present application was not maintainable. In reply, the learned counsel for the financial creditor stated that because of the mortgage the limitation was of 12 years and that the debt was not a dead debt, since the remedy under the DRT was being pursued and therefore, the period spent before the other Fora was to be excluded for the purposes of computing the period of limitation. Reliance was placed upon the decision of the NCLT Hyderabad Bench in International Asset Reconstruction Company (P) Ltd. v. Shri Maruthi Textiles Ltd. CP (IB) No. 226//HDB/2018 Dated 07-02-2019.. It was argued that there is no embargo in law on taking recourse to action under the Code when proceedings under the DRT have already been taken. As regarding the indicative term sheet, it was argued that the FIR registered by the corporate debtor was stayed by the Hon'ble Punjab & Haryana High Court (Annexure-22 of the application). 27. We have carefully considered the submissions of the learned counsel for the financial creditor and the corporate debtor and have also examined the records. 28. The first contention of the learned counsel for the corporate debtor is that the present application is filed beyond li....
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....ies Act, 1956. There is no averment that the winding up proceedings were initiated. No provision in the Code has been brought to our notice by which application under Section 7 of the Code cannot be filed where proceedings under SARFAESI 2002 are pending. Section 238 of the Code states that the provisions of the Code shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law. The contention raised by the learned counsel for the corporate debtor is not accepted. 30. The third contention raised by the learned counsel for the corporate debtor has reference to the indicative term sheet relating to advisory services to Sachdeva Group by the financial creditor and the letter dated 17.04.2007, of the financial creditor setting out the basis upon which the financial creditor will work with Sachdeva Group. It is submitted that the extent of reimbursement to the financial creditor would only be the cost of buying the debt along with agreed fees and expenses. The rejoinder of the learned counsel for the financial creditor is that the corporate debtor had earlier filed CWP ....
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....No.2 filed by him, he has certified that there are no disciplinary proceedings pending against him with the Board or Indian Institute of Insolvency Professionals of ICAI. 34. The conditions provided for by Section 7(5) (a) of the Code being satisfied in the present case, we direct that the application for initiation of CIRP against Corporate Debtor be admitted. The directions regarding moratorium and appointment of IRP are given below. 35. We declare the Moratorium in terms of sub-section (1) of Section 14 of the code as under:- (a) The institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; (b) Transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (c) Any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; (d) The recove....