TaxTMI 
TaxTMI 
TaxTMI 
2021 (5) TMI 873
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....aw Tribunal, Ahmedabad Bench, Ahmedabad) in C.P. (IB) No. 279/7/NCLT/AHM/2018. The Application was filed by Andhra Bank against the Corporate Debtor. Andhra Bank was the Financial Creditor. Andhra Bank is now merged with Union Bank of India and thus in the Appeal the name of Union Bank of India has been substituted. The Application under Section 7 of Insolvency and Bankruptcy Code, 2016 (IBC in short) filed by Andhra Bank was admitted and thus the present Appeal. 2. Andhra Bank (Now Union Bank of India) (Hereinafter referred only as - Bank) filed Application under Section 7 of IBC claiming that the Corporate Debtor availed Financial Assistance from various Banks and Financial Institutions since 2001 by way of Term-Loan, Cash Credit and Working Capital Demand Loan. Necessary securities and Bank Guarantees were given. The Working Capital Consortium came to be formed which was led by the Andhra Bank. Corporate Debtor approached CDR Cell to restructure Working Capital and Term-Loan Facilities and the restructuring package for Working Capital Limit was sanctioned on 29th December, 2012. OCC Limit was restructured. Subsequently, even Supplementary Consortium Agreement and other security....
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....ies and right to sue accrues when default occurs. Thus it is claimed that the claim was time-barred and Application under Section 7 should have been rejected. 5. Against this, the Learned Counsel for the Respondent No. 1 has argued that there were outstanding dues of Rs. 245,31,64,521.85 paise against the Corporate Debtor and thus Application under Section 7 was required to be filed. It is argued that there was Restructuring Agreement executed between the Corporate Debtor with consortium of lenders on 29th December, 2012 to restructure liabilities of the Corporate Debtor and that further Trust and Retention Agreement dated 29th December, 2012 was executed. The Amendatory Agreement to amend and restate Security Trustee Agreement executed on 25th July, 2011. and Second Amendatory Agreement dated 13th March, 2014 was also executed along with other documents. The Corporate Debtor still defaulted and so action under SARFAESI Act was required to be taken. Instead of restructuring package, there was no substantial improvement and thus the Account of the Corporate Debtor was finally declared as N.P.A. w.e.f. 29th June, 2012 as per Clause 17 of Reserved Bank of India Circular dated 1st Jul....
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....807.43 crores to the consortium as a whole, to be shared on pari passu basis and the Bank at any stage can exercise its right towards the said securities. However, keeping in mind the principle of natural justice, it is imperative on the part of the Bank to first allow the Company with a reasonable time and opportunity to revive its operations and improve financials to meet the debt obligations. Thus, the Company requests the Bank to provide ample opportunity and time to regularize its account and if the company fails to do so, the Bank may proceed further as per its discretion. In nutshell, if the Bank would have timely restructured the account and would have considered requests of the Company for adequate working capital and term loan, the present financial crunch would have been averted to have win-win situation for both the parties. Nevertheless, the Company once again requests the Bank to evaluate the revival plan submitted by them vide letter dated 24.12.2014 and accord their approval. The Company once again reiterates its stand that they are open for discussions and suggestions from the Bank(s) in order to reach to a mutually beneficial solution........................." ....
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....payment was extended up to F.Y 2019 and therefore the present Application which has been filed before the cut-off date i.e. the date up to which the Respondent was permitted to repay the loan, is premature and not tenable. The Respondent states that even going with the said sanction of CDR EG, no default has occurred and therefore the Application filed by the Applicant is not maintainable under Section 7 of IBC 2016. The Respondent craves leave of the Hon'ble Tribunal to rely upon and refer to the said sanction which produced......................." 11. The Reply before the Adjudicating Authority further stated in Paragraph 7 (Page 141) as follows: "7........... iii. The Respondent states that the Applicant has allegedly treated the account of the Respondent as "NPA" w.e.f. 29.06.2012, however the fact remains that the Applicant has deposited a sum of Rs. 53,86,04,308.47 from the said cut off date to 28.07.2014, as per details marked and exhibited as "Annexure R-7".............." For such and other reasons, the Corporate Debtor claimed before the Adjudicating Authority that the Application should be rejected. In addition to the above, there is balance sheet of 2015-16 (Page 2....
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.... unable to proceed further under the SARFAESI Act. 86. In the instant case, even if it is assumed that the right to sue accrued on 31.3.2013 when the account of Corporate Debtor was declared NPA, the financial creditor initiated proceedings under SARFAESI Act on 18th January 2014, that is the date on which notice under Section 13(2) was issued, proceeded with the same, and even took possession of the assets, until the entire proceedings were stayed by the High Court by its order dated 24th July 2017. The proceedings under Section 7 of the IBC were initiated on 10th July2018. 87. In our view, since the proceedings in the High Court were still pending on the date of filing of the application under Section 7 of the IBC in the NCLT, the entire period after the initiation of proceedings under the SARFAESI Act could be excluded. If the period from the date of institution of the proceedings under the SARFAESI Act till the date of filing of the application under Section 7 of the IBC in the NCLT is excluded, the application in the NCLT is well within the limitation of three years. Even if the period between the date of the notice under Section 13(2) and date of the interim order of th....