TaxTMI 
TaxTMI 
2022 (4) TMI 707
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....o. 3765 of 2020 and Civil Appeal No. 3 of 2021 etc. Hon'ble Apex Court vide its judgment dated 15.04.2021 has set aside the Judgment of this Tribunal dated 07.02.2020 and remanded back the matter to this Tribunal to decide the matter afresh in accordance with law laid down in Civil Appeal No. 323 of 2021. Relevant portion of the judgment is reproduced below for ease of convenience: "5. As decided by us in Civil Appeal No. 323 of 2021, we given one more opportunity to the appellant in this case to amend its pleading on payment of costs of Rs. 1,00,000/- to respondents within four weeks from today. The NCLAT judgment dated 07.02.2020 is set aside and the matter is remanded to the NCLAT to decide the matter afresh in accordance with the law laid down in Civil Appeal No. 323 of 2021." In compliance to the above judgment dated 15.04.2021 passed by the Hon'ble Apex Court, the instant Company Appeal (AT)(Insolvency) No. 1097 of 2019 with Cause Title: Mr. G. Eswara Rao. Vs. Stressed Assets Stabilisation Fund & Anr. is taken up for adjudication. 2. The brief facts of the case are as under: 2.1 Between 30.11.1994 to 31.05.2001, Corporate Debtor/Appellant obtained vari....
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.... Hyderabad in favour of Financial Creditor on 19.06.2019. Submission of the Appellant: 3. Learned Counsel for the Appellant has stated that the provisions of Maharashtra Protection of Interest of Depositors (In Financial Establishments) Act, 1999 (henceforth 'MPID') having invoked against the Corporate Debtor in the year 2013, the Government of Maharashtra had issued various notifications attaching the properties of Corporate Debtor and other accused companies. The proceedings initiated under the said MPID Act is barred to the enactment of the Code. The Economic Offence Wing, Mumbai Police, is also investigating the Corporate Debtor. The case filed by the Corporate Debtor is through Promotor of the Company who is well versed with the statements made by him in Affidavit appearing at page no. 79 of the Appeal Paper Book. 4. It has been stated by the Appellant/Corporate Debtor that the properties of the Corporate Debtor are attached and are in the custody of the Dy. Collector, Land Acquisition, Mumbai, appointed under the provision of Section 5(1) of the MPID Act, 1999. It is also stated by the Appellant/Corporate Debtor that the Government of Maharashtra had filed M.A. No. 1....
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....ecuted by IDBI Bank in favour of Stressed Assets Stabilisation Fund (Financial Creditor and Respondent No. 1 in the present case). It is also stated by the Respondent No. 1/Financial Creditor that the Corporate Debtor defaulted in repayment of loan facilities and on 30.09.2002, Corporate Debtor's Account was declared as NPA and on 31.03.2004, the Bank recalled the loan facility and demanded requisite dues of Rs. 40,34,72,381/- and thereafter initiated various proceedings available at the then period and approached DRT, vide O.A. No. 193/2004 and got a decree dated 17.08.2018 and the Financial Creditor became entitled to recover the dues along with interest payable @ 12% per annum. The DRT-1/Hyderabad on 19.06.2019 issued a Recovery Certificate entitling the Financial Creditor to recovery a sum of Rs. 102,79,41,641/-. 7. The Financial Creditor moved an Application under Section 7 of the Code before National Company Law Tribunal, Hyderabad vide CP(IB) No. 200/7/HDB/2019, which then got transferred to Amravati Bench bearing TCP(IB) No. 87/7/AMR/2019 seeking commencement of proceeding against the Corporate Debtor. 8. The Adjudicating Authority has recorded the fact that the loan ....
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....ncial Creditor. VIII. The Financial Creditor has submitted Balance Sheet and the Auditors Report of the Corporate Debtor for the Financial year 2004-05 till 2016-17 which is appearing in Volume IV page 547 to 1019 of the amended Application submitted by the Financial Creditor. IX. As far as issue of MPID Act is concerned, it looks that there is no prohibition under the MPID Act for initiating CIRP process. As and when CIRP is initiated, the Resolution Professional is duty bound to approach the designated court for taking back control and custody of the said property over which the Corporate Debtor has ownership right derived from the legal documents. Hence the attachment of property does not prohibit initiation of CIRP. X. As far as issue of Balance Sheet is concerned, whether the Balance Sheet acknowledgment will give life to the due debt otherwise payable in law has also been amply clear in Hon'ble Apex Judgment in Civil Appeal No. 323 of 2021 titled Asset Reconstruction Company (India) Ltd. Vs. Bishal Jaiswal & Anr. Paragraphs 22, 33 & 35 of the judgement of the Hon'ble Apex Court in Civil Appeal No. 323 of 2021 are reproduced for ease of convenience: "22. A pe....
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.... and Sections 238 & 238(A) of the Code is reproduced herewith for sake of convenience: Section 18 of the Limitation Act, 1963: "18. Effect of acknowledgment in writing. (1) Where, before the expiration of the prescribed period for a suit of application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed. (2) Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872, oral evidence of its contents shall not be received. Explanation.-For the purposes of this section,- (a) an acknowledgment may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come or is accompanied by a refusal to pay, deliv....
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....ns, are secured by feet charge on all movable and Immovable assets of the company both present and future subject to prior charge on specified curent assets of the company created/to be created in favour of the working capital bankers on reciprocal basis. The loans are further secured by personal guarantana of promoters of the company b) The working capital borrowings of the company are secured by first charge on all the current sets of the company, both present and future, and by way of a second charge on the fixed assots of the company on reciprocal basis. The loans are further secured by personal guarantees of the promoters a) The company has not privided interest on interest vendue and penal interest on term one of IOBI, EXIM BANK b) Some of the Lenders have led the cases against the company for the recovery of their dues. The company has extended Corporate Guarantees to Flebarks on behalf of other companies to the extent of its 2760.90Lakhs and the same were invoked by them. The matter is under and company to in discussion with that other companies and hopeful of poetive settlement, Hence no provision has been made in....