TaxTMI 
TaxTMI 
2022 (7) TMI 149
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....aya Hotel and Resorts Limited' as its name suggests is in the hospitality business. Nimitaya Group consisted of three other entities apart from the Corporate Debtor. Against Corporate Debtor and three other entities of Nimitaya Group amounts were due to the Allahabad Bank (now Indian Bank). The compromise proposal of the Nimitaya Group was accepted by Allahabad Bank for Rs.260 Crores by letter dated 19.03.2019. As per compromise, Rs.154 Crores was to be paid by 31.03.2019 and remaining balance of Rs.102 Crores was to be paid within 90 days. Although Nimitaya Group including the Corporate Debtor made the payment of Rs.156 Crores by 31.03.2019 but could not make the balance payment within three months as per the time granted. A Section 7 Application filed by the Allahabad Bank against the Corporate Debtor after acceptance of the compromise proposal was withdrawn on 11.04.2019. The Corporate Debtor could not pay the balance of Rs.102 Crores which led to filing of Section 7 Application by the Allahabad Bank in July, 2019. During pendency of Section 7 Application, the Respondent Bank invited bid from eligible Asset Reconstruction Companies (ARC's)/ Non-Banking Financial Companies (NBFC'....
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....fessional' will not constitute the 'Committee of Creditors', if not yet constituted. However, the 'Interim Resolution Professional' will ensure that the company remains a going concern." 2. Subsequently, the interim order passed by this Tribunal was vacated on 15.03.2022. Paragraph 2 of the order is as follows:- "2. Be that as it may, it is open for the Appellant to make deposit without any prejudice to the rights of the parties and approach the Bank for accepting the offer. We make it clear that we are not expressing any opinion at this stage regarding the claim of the Appellant. However, we are of the view that Interim Order dated 05.01.2022 is modified and let the 'Committee of Creditors' be constituted. However, the Interim Resolution Professional shall ensure that Company remains a 'going concern'. List this Appeal on 19th April, 2022." 3. Respondents have filed their Reply-Affidavit. Appellant has also filed an Additional-Affidavit. 4. We have heard Shri Abhijeet Sinha, Learned Counsel for the Appellant and Shri Rajesh Kumar Gautam, Learned Counsel for the Respondents. 5. Learned Counsel for the Appellant submits that the grievance of the Appellant is that the Financi....
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.... considered the submissions of the Learned Counsel for the parties and perused the record. 8. The present is a case where the Corporate Debtor is not denying its financial liabilities to the Bank. As noted above, a compromise proposal was accepted for Rs.260 Crores against the Nimitaya Group consisting of Corporate Debtor and three other entities. An amount of Rs. 154 Crores was paid by 31.03.2019 and due was only Rs.102 Crores which remains to be paid. Consequently, an earlier compromise failed. Subsequent to filing Section 7 Application, the Bank had issued a proposal for sale of NPAs to Asset Reconstruction Companies (ARC's)/ Non-Banking Financial Companies (NBFC's)/ Financial Institution (FI's) vide its Notice dated 18.01.2021. Copy of the proposal for sale notice in Annexure A-9 annexed in the Appeal in which under heading "NPAs with book balance of above Rs. 50.00 Crs. and upto 100 Crs.". The Corporate Debtor is mentioned at Item No.1 with following details:- "II NPAs with book balance of above Rs.50.00 Crs. and upto 100 Crs S No. BRANCH NAME OF THE ACCOUNT ....
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....e availability of credit and balancing the interest of all stakeholders............. 29. The IBC is a complete code in itself. The Adjudicating Authority and the Appellate Authority are creatures of the statute. Their jurisdiction is statutorily conferred. The statute which confers jurisdiction also structures, channelises and circumscribes the ambit of such jurisdiction. Thus, while the Adjudicating Authority and Appellate Authority can encourage settlements, they cannot direct them by acting as courts of equity.........." 11. Learned Counsel for the Respondent has relied on the judgment of the Hon'ble Supreme Court in "Bijnor Urban Cooperative Bank Limited, Bijnor and Ors. vs. Meenal Agarwal and Ors.- 2021 SCC OnLine SC 1255" wherein the Hon'ble Supreme Court has laid down following in paragraph 30:- "30. The sum and substance of the aforesaid discussion would be that no writ of mandamus can be issued by the High Court in exercise of powers under Article 226 of the Constitution of India, directing a financial institution/bank to positively grant the benefit of OTS to a borrower. The grant of benefit under the OTS is always subject to the eligibility criteria mentioned under....