TaxTMI 
TaxTMI 
2021 (3) TMI 1200
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....ppeal (AT) (Insolvency) No. 03 of 2020 preferred by Pawan Kumar Agarwal, Suspended Director of Mohan Jute Mills Ltd., but both the Appeals are disposed of by two separate Judgments. 2. This appeal has been preferred by Appellant- Pawan Kumar Agarwal Suspended Director of Raigarh Properties Pvt. Ltd. being aggrieved and dissatisfied by the impugned order dated 27.02.2020 in C.P. (I.B.) No. 432/KB/2019 passed by Adjudicating Authority, National Company Law Tribunal, Kolkata Bench, Kolkata, whereby and whereunder admitted the Application under Section 7 of the Insolvency and Bankruptcy Code, 2016 (in short IBC) filed by Respondent No. 1 / Financial Creditor the main elements of impugned order is as under: i. The Application filed by the Operational Creditor under Section 7 of the IBC, 2016 for initiating the CIRP against the Corporate Debtor, Raigarh Properites Pvt. Ltd. is hereby admitted. ii. We declare a moratorium and cause public announcement in accordance with Sections 13 and 15 of the IBC, 2016. iii. Moratorium is declared for the purpose referred to in Section 14 of the IBC. The IRP shall cause a public announcement of the initiation o....
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....dvance fees as per Regulation 33(3) of IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 which shall be adjusted from final bill. xii. The Resolution Professional shall conduct CIRP in time bound manner as per Regulation 40A of IBBI (Insolvency Resolution Process for Corporate Persons) Regulation, 2016. xiii. List the matter on 09th April, 2020 for the filing of the progress report. xiv. Registry is hereby directed under Section 7(7) of the IBC, 2016 to communicate the order to the Financial Creditor, the Corporate Debtor and to the IRP by speed post as well as through e-mail. xv. Certified copy of the order may be issued to all the concerned parties, if applied for, upon compliance with all requisites formalities. 3. The facts giving rise to the instant Appeal lie in narrow compass as follows: i) The Appellant -Corporate Debtor, in the year 2008, had availed loan from Union Bank of India in respect of which the Corporate Debtor had created security in form of hypothecation and other securities in favour of the Union Bank of India. On account of failure of the Corpo....
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....ported failure of the Appellant to repay the outstanding amount, the Respondent No. 1 filed Application under Section 7 of the IBC seeking initiation of CIRP in respect of the Appellant-Corporate Debtor and the impugned order was passed. Submissions on behalf of the Appellant 4. The Appellant during the course of the argument and his Written Submissions submitted that the Adjudicating Authority has failed to appreciate that the Appellant - Corporate Debtor had availed loan from Union Bank of India in the year 2008 and that it was declared NPA in the year 2009. 5. It is further submitted that the Application under Section 7 of the IBC was filed on 14th March, 2019 by Respondent No. 1 at Annexure-2 page 55 to 340, Vol-I & II of the Appeal Paper Book. It was further submitted that the date of NPA was declared on 31st December, 2009 but the Application under Section 7 of the IBC was not filed within three years of Limitation. 6. It is further submitted that the Application under Section 7 of the IBC barred by limitation in view of the judgment of Hon'ble Supreme Court of India reported in 2020 SCC OnLine SC 647 'BABULAL VARDHARJI GURJAR V/s. VEER....
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...., Vol-II of the Appeal Paper Book), 14th August, 2015 (page 83-88 of Convenience Compilation: page 310 Vol-II of the Appeal Paper Book), 1st September, 2015 (page 89-94 of Convenience Compilation: page 316, Vol-II of Appeal Paper Book) and 5th April, 2016 (page 95-98 of Convenience Compilation: page 323, Vol-II of the Appeal Paper Book). Pertinently, these OTS / Settlement Offer(s) were rejected by the Respondent No. 1 on 9th November, 2015(at page 322, Vol-II of the Appeal Paper Book) and finally thereafter on 7th April, 2016 (at page 327, Vol-II of the Appeal Paper Book). 9. It is further submitted that this Appellate Tribunal in Company Appeal (AT) (Insolvency) No. 407 of 2019 "C. Shivkumar Reddy V/s Dena Bank & Anr." para 7 has held as follows: "7. In the present case, there is nothing on record to suggest that the 'Corporate Debtor' acknowledged the debt within three years and agreed to pay the debt. The application moved by 'Corporate Debtor' to restructure the debt or payment of the interest, does not amount to acknowledgement of debt. There is nothing on record to suggest that the 'Corporate Debtor' or its authorized representative by its signatur....
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....er on 10.07.2012 and 23.07.2012 respectively requested the Principal Lender- Union Bank of India for modification of the conditions of said settlement. The letter dated 23.07.2012 is marked as Annexure- 2 at page 292, Vol.-II of the Appeal Paper Book. 15. It is further submitted that on 30th July, 2012 the Principal Lender- Union Bank of India informed the Appellant - Corporate Debtor with the requests for modification in conditions of the settlement proposal dated 02.07.2012 has been accepted which is at page 293, Vol-II of the Appeal Paper Book. 16. It is further submitted that on 31.12.2012 an Assignment Agreement at pages 114 to 139, Vol-I of the Appeal Paper Book, was executed between the Principal Lender- Union Bank of India and Respondent No. 1 whereby Principal Lender- Union Bank of India assigned the loan granted to the Corporate Debtor in the year 2010 along with other loans to Respondent No. 1. In pursuance thereof, the Respondent No. 1stepped into the shoes of the Principal Lender- Union Bank of India and accordingly, all the rights for recovery of loan along with the right to contest subsequent litigations were also transferred by the said Agreement. ....
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....proposed for 8 equal quarterly instalments for repayment starting from 31.10.2016 till 31.07.2018. The aforesaid letters form part of Annexure-A/2 at pages 310 to 315, Vol-II, of the Appeal Paper Book. 23. It is further submitted that though a letter dated 1st September, 2015, the Appellant-Corporate Debtor referring to term sheet dated 21.03.2013 and the discussions held on 06.08.2015 requested the Respondent No. 1 for the reschedulement of the outstanding principal dues of Rs. 16,89,63,000/- and interest dues to the tune of Rs. 6,71,35,000/- up to 31.08.2015 and to capitalize the same as on 31.08.2015. The fresh proposal was made by the Appellant - Corporate Debtor to the Respondent No. 1 for repayment of outstanding with upfront payment of Rs. 1,50,00,000/- quarterly instalments starting from 30.11.2016 till 31.08.2018 after the moratorium of 12 months on the balance capitalized interest and principal amount from 01.09.2015. The letter written by the Appellant - Corporate Debtor is at Annexure- A/2 at pages No. 316 to 321, Vol-II of the Appeal Paper Book. 24. It is further submitted that on 09.11.2015 (Annexure -A/2 at page No. 322, Vol-II of the Appeal P....
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....p; Learned Counsel for the Respondent No. 1 while referring to Application under Section 7 of the IBC, wherein Part-IV particulars of the financial debt is mentioned as 28.02.2019, further submitted that the Application under section 7 of the IBC was filed within the period of limitation, so in view of the judgment of Hon'ble Supreme Court of India reported in 2020 SCC OnLine SC 647 'BABULAL VARDHARJI GURJAR V/s. VEER GURJAR ALUMINIUM INDUSTRIES PVT. LTD. & ANR.' is not applicable in the facts of this case. 31. Learned Counsel for the Respondent No. 1 further while referring on a judgment of this Appellate Tribunal in Company Appeal (AT) (Insolvency) No. 236 of 2020 "Yogeshkumar Jashwantlal Thakkar V/s Indian Overseas Bank decided on 14th September, 2020 wherein this Tribunal as held as follows: ".......... 25. In the decision of Hon'ble Supreme Court in 'Babulal Vardharji Gurjar' V. 'Veer Gurjar Aluminium Industries Pvt. Ltd. and Anr.' (Civil Appeal no. 6357 of 2019 - decided on 14.08.2020) at paragraph 33.1 it is observed as under:- "33.1 Therefore, on the admitted fact situation of the present case, where only the ....
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.... title and interests in the plant and machinery nor the point was argued before the High Court and we do not have the benefit in this regard either of the Tribunal or of the High Court. In this view We decline to go into the question but confine to the 1st question and agree with the High Court answering the reference in favour of the revenue and against assessee that the appellant is not entitled to the development rebate u/s 33(1) of the Act. The appeal is accordingly dismissed with costs quantified at Rs. 5,000." 27. In the judgement of Hon'ble Supreme Court 'A.V. Murthy' V. 'B.S. Nagabasavanna' (Criminal Appeal No. 206 of 2002 - decided on 8.2.2002) (MANU/SC/0089/2002) at paragraph 5 it is observed as under:- ".....Moreover, in the instant, the appellant has submitted before us that the respondent in his balance sheet prepared for every year subsequent to the loan advanced by the appellant had shown the amount as deposits from friends. A copy of the balance sheet as on 31st March, 1997 is also produced before us. If the amount borrowed by the respondent is shown in the balance sheet, it may amount to acknowledgment an....
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.... OA 470 of 2017 (filed on 18.08.2017 by the 1st Respondent / Bank) on 18.2.2019, directing the defendants 1 to 3 therein to pay the dues within two months from the date of judgement etc. and in fact the relief sought for by the 1st Respondent / Bank in the said application praying for issuance of recovery certificate to the tune of Rs. 19,25,81,173.31 only together with interest at 13.20% p.a. with monthly rests and costs was granted etc. 32. It transpires that Director of the 2nd Respondent / Jason Dekor Pvt. Ltd. had confirmed the correctness of the balance of Rs. 14,34,42,101.00 dated 15.10.2013, on 01.11.2013 and over the revenue stamp had affixed his signature. Likewise, the Director of the 2nd Respondent had confirmed the correctness of the balance dated 05.06.2016 and had affixed his signature on 05.06.2016 itself. Likewise, on 20.05.2015 the Director of the 2nd Respondent had confirmed the correctness of the balance in respect of the credit facilities availed by it and the signature was affixed on 20.05.2015. On 02.09.2016 the Director of the 2nd Respondent / 'Corporate Debtor' had executed the revival letter to and in favour of the 1st Resp....
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....03.2017 as mentioned elaborately in Para 20 of this judgement. Although, this Appellate Tribunal had held in 'Rajendra Kumar Tekriwal' Vs. 'Bank of Baroda' in Company Appeal (AT) (Ins) No. 225 of 2020 and in Jagdish Prasad Sarada Vs. Allahabad Bank in Company Appeal (AT) (Ins) No. 183 of 2020, (both being three Members Bench) had taken a stand that the Limitation Act, 1963 will be applicable to all NPA cases provided, they meet the criteria of Article 137 of the Schedule to the Limitation Act, 1963, the extension of the period can be made by way of Application under Section 5 of the Limitation Act, 1963 for condonation of delay; however, the peculiar attendant facts and circumstances of the present case which float on the surface are quite different where the 1st Respondent / Bank had obtained Confirmations/Acknowledgments in writing in accordance with Section 18 of the Limitation Act periodically. As a matter of fact, Section 18 of the Limitation Act, 1963 is applicable both for 'Suit' and 'Application' involving 'Acknowledgment of Liability', creating a fresh period of limitation, which shall be computed from the date when the 'Acknowledgment' ....
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....application under Section 7 of the I&B Code, 2016 was filed by the 1st Respondent/Bank on 01.04.2019 before the 'Adjudicating Authority' within the period of Limitation. Furthermore, in view of the fact, that ingredients of Section 18 of the Limitation Act, 1963 are quite applicable both for 'Suit' and 'Application' and the debit confirmation letters in the instant case were duly acknowledged in accordance with Law laid down on the subject, the instant Appeal deserves to be dismissed and accordingly the same is dismissed, since no legal infirmities have been found in the impugned order passed by the Adjudicating Authority in admitting CP No. (IB) 257/7/NCLT/AHM/2019 and declaring moratorium etc. Resultantly, all connected Interlocutory Applications are closed. There shall be no order as to costs. 32. It is further submitted that the facts of this case is squarely covered by Judgment of this Appellate Tribunal (supra), there is no merit in the Appeal and it is fit to be dismissed. Submissions on behalf of the Respondent No. 2 33. The Learned Counsel for the Respondent No. 2- Resolution Professional - Mr. Kamal Nayan Jain has filed t....
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....nt with request for modification in condition of settlement proposal dated 02.07.2012 has been accepted. f) It is admitted that on 31.12.2012 an Assignment Agreement (at pages 114 to 139, Vol-I of the Appeal Paper Book) was executed between the Principal Lender- Union Bank of India and Respondent No. 1 - Asset Reconstruction Company (India) Limited whereby Principal Lender- Union Bank of India assigned the loan granted to the Corporate Debtor in the year 2010 along with other loans. g) It is admitted that vide letter dated 21.03.2013 sent by Respondent No. 1 - Asset Reconstruction Company (India) Limited to Mohan Jute Mills Ltd. informing that proposal for restructuring the scheme of Mohan Jute Mills Ltd. and Raigarh Properties Pvt. Ltd. have been approved and terms sheet dated 21.03.2012 was drawn between the Respondent No. 1 - Asset Reconstruction Company (India) Limited, Mohan Jute Mills Ltd. and Raigarh Properties Pvt. Ltd. which is at Annexure - A/2 Vol-II, pages 221 to 243 of the Appeal Paper Book. h) It is admitted that on 30th June, 2013 and 31st July, 2013, the Corporate Debtor once again defaulted in making payments and the Respondent No. 1 was ....
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....t is admitted that the Corporate Debtor failed to make any payment and only 20th May, 2016 the Respondent No. 1 issued a recall notice for an outstanding dues of Rs. 26,61,47,046/-. n) It is admitted that on 20.02.2019 the Respondent No. 1 computed the total dues of the Corporate Debtor which came to Rs. 42,33,36,044/- and informed the Corporate Debtor through letter which is part of Annexure- A/2 Vol- II, pages 247 to 249 of the Appeal Paper Book. o) In view of the categorical acknowledgement by the Corporate Debtor, acknowledging the dues and making requests for the rescheduled the payment of the instalments, we are of the clean opinion that in view of the Judgment of this Appellate Tribunal (supra) dated 14th September, 2020 the ratio of the judgment is applicable in the facts of this case and this case is squarely covered by the aforesaid judgment. At this stage the plea of the Appellant is that the Application under Section 7 of the IBC is barred by limitation, cannot be sustained in the eye of law. p) The Adjudicating Authority while passing the impugned order dated 27.02.2020 in C.P. (I.B.) No. 432/KB/2019 has considered al....