TaxTMI 
TaxTMI 
2023 (12) TMI 1172
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....gnus Splendid Limited prior to its incorporation under the Companies Act, 1956 was a partnership firm viz M/s Cygnus Splendid and for its business purpose obtained Term Loan and Cash Credit Facility from Bank of Baroda by sanction letter dated 11.10.2012. (ii) After being incorporated as Registered Company, Bank of Baroda revised/ sanctioned existing credit facility in favour of Corporate Debtor on the terms and conditions as mentioned in the Sanctioned Letter dated 18.02.2014, which consisted Term Loan Facility for an amount of Rs.9,02,50,000/- payable to the Applicant on demand together with interest @ 3.75% above Base Rate of the Bank plus 0.15% tenor premium per annum with monthly rests or at such other rates as may prevail from time to time. Cash Credit (Hypothecation) facility was sanctioned for an amount of Rs.3,64,00,000/- payable on demand together with interest thereon @ 3.25% above Base Rate of the Bank per annum with monthly rests or at such rates as may prevail from time to time. (iii) The Corporate Debtor did not operate the account in accordance with banking norms and failed to maintain financial discipline and defaulted to pay the instalments of lo....
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....ettlement proposal to settle the account for Rs.7.5 crores, after adjusting an amount of Rs.3.61 crores already deposited. The Appellant communicated that they will not be able to increase the offer. The Bank on 18.12.2019 communicated that the said offer is not acceptable. Combined proposal by all the three companies for settlement was given on 21.09.2020 for Rs.8.00 crores. The Bank asked the Appellant to submit a revised proposal, the combined offer submitted by the Appellant and associate company was not accepted. (ix) A Commercial Suit No.28 of 2022 was filed by the Appellant along with associate companies, jointly before Commercial Court at Alipore for an amount of Rs.162.99 crores? (x) In OA No.615 of 2017, the Corporate Debtor has filed a counter-claim of Rs.45 crore on 24.09.2020. (xi) On 03.01.2023, the Bank of Baroda filed Section 7 Application being CP No.(IB)-39(ND)/2023. In the Application filed under Section 7 the aggregate amount of principal and interest defaulted to be paid by the Corporate Debtor was calculated as Rs.13,49,47,775.57/- and date of default was mentioned as 13.03.2017. The details and particular of the OA No.615 of 2017 fi....
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....e with the Bank and specifically Letter dated 05th April, 2023 which is filed at page 212 of the Supplementary Affidavit. Learned Counsel for the Appellant submits that in all the three accounts i.e. Account of the Corporate Debtor as well as two sister companies total amount of Rs. 3,76,60,055/- has been deposited. 2. Learned Counsel for the Bank submits that Bank has communicated a Letter dated 17th August, 2023 to M/s. Cygnus Group of Companies that if the OTS Proposal is to be submitted in the future, they are requested to submit separate proposals for each account to their respective/concerned branches where the loan amount it repayable instead of submitting a combined proposal for all three accounts/companies. 3. Learned Counsel for the Appellant submits that Appellant was not aware of the Letter dated 17th August, 2023 and now in view of the Letter of the Bank, the Appellant proposes to submit a separate OTS Proposal with regard to corporate debtor and other two group companies. Appellant may submit OTS proposal within 10 days from today and the Bank thereafter within 10 days may consider the OTS Proposal. 4. Learned Counsel for the IRP is present ....
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....nue." 6. On 09.11.2023, when the Appeal was taken up, a request was made by the Appellant that Appellant intends to improve the offer and he is to met the Bank Official after 14.11.2023. Recording the aforesaid submission, as a last opportunity, the matter was fixed for 04.12.2023. On 09.11.2023, following order was passed: "09.11.2023: Learned Counsel for the Appellant submits that Appellant is intending to improve the offer and Bank has indicated to meet after 14th November, 2023. 2. Learned Counsel for the Bank submits that they have no such instruction. 3. We have already granted time to the Appellant on 12.10.2023 to substantially improve the offer for OTS in the account for consideration of the same by the Competent Authority. We make it clear that this is a last opportunity being allowed to the Appellant for submitting an improved offer and it is for the bank to consider the same. 4. List this Appeal on 04th December, 2023. Interim Order to continue. This being last opportunity, no further time shall be allowed to the Appellant. In event, no settlement takes place, the matter shall finally be heard on merits. 5. Mr. Yash Karan ....
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....ing no default, Section 7 Application could not have been admitted. A one page note under the heading 'The Legislative Scheme pertaining to Information Utilities" was also handed over to the Court by the learned Counsel for the Appellant, referring to various Regulation of Information Utilities Regulation. 11. The learned Counsel for the Appellant has also in addition to above made other submissions in support of the Appeal. As noted above, learned Counsel for the Appellant has forwarded 13 points note containing 13 grounds by email dated 04.12.2023. To allay any apprehension on behalf of the Appellant, we proceed to notice the aforesaid note containing 13 grounds and proceed to consider the grounds raised in the note. It is suffice to extract the entire short note, which has been sent by the Appellant by email dated 14.12.2023 and to consider the same to allay any apprehension of the Appellant of non-consideration of its submission. The short note as sent by the learned Counsel for the Appellant is as follows: "SHORT NOTE MAIN PRAYER FOR 04-12-2023 : 1. The Hon'ble Tribunal may be pleased to issue notice on the appeal to Bank of Baroda, the respondent....
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....res (coming to a total of Rs. 45.14 crores), far exceeds the total claim of the Bank of Rs.13.49 crores reported by it in the Section 7 petition filed before NCLT. DETAILS OF COMMERCIAL SUIT No. 28 OF 2022 : Sl. No. COMPANY CLAIM BY BANK COMPANY (1) (2) (3) (4) 1. C ygnus Splendid Ltd 13.49 cr (Sec. 7 IBC - Jan 2023) 0.14 cr - MS 28 45.00 cr - DRT 45.14 cr 2. S unway Infrastructure Services Ltd 4.34 cr (As on 13-11-2017 - OA 1206 of 2017) 114.03 cr 3. C ygnus Equipments & Rentals Ltd 8.45 cr (As on 25-10-2018 - OA No. 171 of 2017) 48.82 cr TOTAL 26.28 cr 207.99 cr i.e. ~ 8x > excess by 181.71 crs Note : Figure in column (3) is not any claim made by the bank in the Commercial Suit, but is what has been demanded by it from time to time. 3. NO COUNTER-CLAIM / SET-OFF FILED BY BANK IN COMMERCIAL SUIT : The bank has not filed any counterclaim, or claimed any set-off, in the Commercial Suit. Hence, it is barred from filing the IBC petition by virtue of Order II (Rule 2) of the CPC when read with Order VIII [Rule 6a(4)]. Not asking for a set-off on account of its own OA before DRT ....
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.... creditors' in this type of scenario as well). Note : If this parity - by applying the 'spirit' of the law - is not permitted, and adverse inference not drawn against a 'Financial Creditor' even from the omission (in this case, refusal) by the bank to fairly make such disclosure in its Balance Sheet, then this means that a corporate Debtor that has legitimate disputes with its Financial Creditor, to the extent of filing of a suit, will have no means of staving off a Section 7 petition at all, and all that a bank has to do to get a suit filed against it 'short-circuited' is to file a Section 7 petition, and get its own RP appointed, who will then bury the suit for the undue benefit of such Financial Creditor. 9. LEGAL CONUNDRUM : Since the RP is an appointee of the Financial Creditor, and if the IBC process is allowed to go forward, this means that the suit on behalf of the Corporate Debtor can only be prosecuted by him, which means that since all actions of the RP are dictated by the Financial Creditor, it is clear that no steps will be taken by the Financial Creditor to ensure that the RP diligently prosecutes the suit against his own nominator i.e. the same Fina....
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.... CGM, SMAV, BCC, Mumbai to settle the defaulted amount by accepting Rs.8.10 Cr. The said settlement offer is an acknowledgment of the defaulted amount. Thus, the period of offer is an acknowledgment of the defaulted amount. Thus, the period of limitation would start from the said date.". The letter, at best, refers to 'debt', and not to 'default'. And 'default' has to refer to and be read as "net" amount in 'admitted' default i.e. 'default' less counter-claims under adjudication before a judicial authority (and not mere bluster or illusory claims). In any event, this letter was titled 'Without prejudice' and could not have been relied upon by NCLT - please see Peacock Plywood. 13. POWER OF ATTORNEY : The Financial Creditor had authorized one Nidhi Kumar through a Power of Attorney dated 01-09-2021 to act on its behalf, but Ms. Nidhi Kumar nominated Mr. Pawan Sharma to be true and lawful Attorney of the Financial Creditor. Thus, the Sec. 7 petition was not maintainable, not being filed by authorized representative of the Petitioner, for the reason that the Power of Attorney does not envisage the aforesaid Ms. Nidi Kumar delegating her own authority to her nominee, ....
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....tor. In the present case no authentication of the default having been obtained by the Financial Creditor, application under Section 7 was not liable to be admitted. The Adjudicating Authority committed error in admitting Section 7 application without there being any authentication of default as per Regulations 2017. The submission is that it is not debt but default on the basis of which an application under Section 7 can be triggered. 16. Insolvency and Bankruptcy Board of India (Information Utilities) Regulations, 2017 has been framed by the Board in exercise of the powers conferred under Sections 196, 209, 210, 211, 212, 213, 214, 215, 216 read with Section 240 of the Insolvency and Bankruptcy Code, 2016. Regulation 20 as amended w.e.f 14.06.2022 which is sheet anchor of the submission of the Appellant is as follows:- "20. Acceptance and receipt of information.- (1) An information utility shall accept information submitted by a user in Form C of the Schedule. [(1A) Before filing an application to initiate corporate insolvency resolution process under section 7 or 9, as the case may be, the creditor shall file the information of default, with the info....
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.... the information of default Authenticated Green 2 Debtor disputes the information of default Disputed Red 3 Debtor does not respond even after three reminders Deemed to be Authenticated Yellow Provided that in case of financial creditors which are banks included in the second schedule of the Reserve Bank of India Act, 1934, the information utilities will record the status of authentication of information of default as indicated in the Table 2 below: TABLE-2 Sl. No. Response of the Debtor Status of Authentication Colour of the Status (1) (2) (3) (4) 1 Debtor confirms the information of default, Or (b) Debtor does not respond even after three reminders Authenticated Green 2 Debtor disputes the information of default Disputed Red (4) After recording the status of information of default under sub-regulation (3), the information utility shall communicate the status of authentication in physical or electronic form of the relevant colour, as indicated in column (4) of the Tables 1 or 2, as the case may be, by issuing a record of default in Form D of the Schedule, to the registered user....
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....ens in KIE Industrial Estate East: kh.11 of village Dahiyaki South: kh. no 365 West: part of Khasra No. 361,363 and 366 of plot no 4B Admeasuring 1276.55 sq meters, in the name of the Corporate Debtor. 2. PARTICULARS OF AN ORDER OF A COURT, TRIBUNAL OR ARBITRAL PANEL ADJUDICATING ON THE DEFAULT, IF ANY (ATTACH A COPY OF THE ORDER) That on 26.05.2017, the Financial Creditor filed an Original Application/recovery suit under Section 19 of The Recovery of Debts and Bankruptcy Act, 1993 before the Hon'ble Debt Recovery Tribunal-11, New Delhi bearing OA No. 615 of 2017 for an amount of Rs. 7,85,62,274/- (Rupees Seven Crores Eighty Five Lacs Sixty Two Thousand Two Hundred And Seventy Four) due and payable at the time, along with further interest at contracted rates and other charges as applicable. That the Hon'ble Debt Recovery Tribunal, New Delhi was pleased to issue notice in the said OA and the OA is currently pending adjudication. 3. RECORD OF DEFAULT WITH THE INFORMATION UTILITY, IF ANY (ATTACH A COPY OF SUCH RECORD) 4. DETAILS SUCCESSION OF CERTIFICATE, OR PROBATE OF A WILL, OR LETTER OF ADMINISTRATION OR COURT DECREE (AS MAY BE APPLICABLE), UN....
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....thdraw etc. dated 30.04.2014 A-21 15. A copy of Undertaking for share holdings dated 30.04.2014; A-22 16. A copy of Declaration dated 30.04.2014 A-23 17. A copy of Supplemental Memorandum of Entry dated 30.04.2014 A-24 18. A copy of Declaration of Mortgage dated 30.04.2014 A-25 19. A copy of Letter of Confirmation of mortgage dated 01.05.2014 A-26 LIST OF OTHER DOCUMENTS ATTACHED TO THIS APPLICATION IN ORDER TO PROVE THE EXISTENCE OF FINANCIAL DEBT, THE AMOUNT AND DATE OF DEFAULT. 19. The above particulars as mentioned in Part-V does indicate that record of default with information utility has not been attached along with the Section 7 Application. Whether application filed by the Financial Creditor deserves to be rejected on account of non-filing of record of default with information utility is the question to be answered. 20. We need to look into the statutory scheme of the IBC, Rules and Regulations framed thereunder for answering the aforesaid question. Section 7 of the IBC deals with 'initiation of corporate insolvency resolution process by financial creditor'. Section 7(2) provi....
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....les framed under Section 239 read with Sections 7, 8, 9 and 10 of the IBC Code by the Central Government which are rules known as 'The Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016'. Rule 4 of the 'The Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016' deals with 'application by financial creditor', which is as follows:- "4. Application by financial creditor.-(1) A financial creditor, either by itself or jointly, shall make an application for initiating the corporate insolvency resolution process against a corporate debtor under section 7 of the Code in Form 1, accompanied with documents and records required therein and as specified in the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. (2) Where the applicant under sub-rule (1) is an assignee or transferee of a financial contract, the application shall be accompanied with a copy of the assignment or transfer agreement and other relevant documentation to demonstrate the assignment or transfer. (3) [The applicant shall serve a copy of the application to the registered office of the ....
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....dence of default as may be specified. When we read Section 7(3)(a) of the Code, Regulation 2A of the 'Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016' and Rule 4 of 'The Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016', it is clear that for purposes of proving a default, financial creditor is entitled to furnish certified copies of entries to the relevant account in the bankers' book as defined in clause (a) of Section 2 of the Bankers' Book Evidence Act, 1891 which is one of the evidences mentioned for proving the default. The provision of Section 7 and the 'Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016' with regard to requirement which financial creditor has to fulfil before filing Section 7 application has also come for consideration before the Hon'ble Supreme Court. The Hon'ble Supreme Court in "Swiss Ribbons (P) Ltd. v. Union of India, (2019) 4 SCC 17" while referring to information available with information utility has observed that there are other sources which evidences a financial debt. Paragraphs 54 and 55 of th....
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....on 21. The submission is that after insertion of the above sub-regulation (1A) in Regulation 20, now no application can be filed under Sections 7 and 9 if it is not accompanied by record of default issued by Information utility as contemplated by Regulations 20 and 21. Regulation 20 although has been amended w.e.f 14.06.2022 but there is no amendment either in Section 7 of the IBC which empowers Financial Creditor to file record of the default recorded in the information utility or such other record and default as may be specified or in Rules 2016 or CIRP Regulations 2016. The statutory scheme, thus, contemplates furnishing record of default by the financial creditor as recorded with the information utility or such other record or evidence of default as may be specified. We have already noticed that the record of default for purposes of Section 7(3)(a) has been specified by Regulation 2A of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. Thus, record of default recorded with the information utility is not the only document which has to be furnished by financial creditor. Financial creditor is at liberty to submit....
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....nkruptcy (Application to Adjudicating Authority) Rules, 2016 and the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, the said application has not to be considered. We, thus, are of the considered view that even after amendment of Regulation 20 by insertion of Regulation 20(1A) w.e.f 14.06.2022, Financial Creditor is entitled to file evidence of record of default as contemplated by Regulation 2A of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 r/w Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. We, thus, do not find any substance in the submission of the Appellant that since Financial Creditor has not filed the record of default from an information utility, Section 7 deserves to be rejected. 30. Before the Adjudicating Authority, submission on the basis of the argument which has been advanced by the Appellant before us that no information of default from the information utility have been filed, application deserves to be rejected was raised and dealt with by the Adjudicating Authority. It is useful to....
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....lity, the application filed under Section 7 may not be admitted. 32. Now we proceed to examine other grounds raised by the Appellant in support of the Appeal as contained in 'short notes' referred above. 33. Ground No.1 is covered by our discussion and conclusion as noted above while dealing with the Insolvency and Bankruptcy Board of India (Information Utilities) Regulations, 2017. The ground further mentions that because of the pre-existing dispute, the bank has deliberately not complied with the requirement of filing proof of debt lodged by it with an Information Utility, which according to the Appellant is mandatory requirement. The concept of pre-existing dispute is relevant with regard to operational debt. The financial debt even if disputed does not preclude the Adjudicating Authority to decide debt and default. The said issue has already been answered by the Hon'ble Supreme Court in "Innoventive Industries Ltd." (supra). In paragraph 30 of the judgment while contrasting the statutory scheme of Sections 7 and 8, Hon'ble Supreme Court has observed that it is of no matter that the financial debt is disputed so long as the debt is 'due'. In paragraphs 29 and 30 of the jud....
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....nion of India" (supra) has held that question of consideration is set off and counter claim arises only at the time of consideration of claim after initiation of CIRP. In paragraphs 61 and 63, following has been laid down:- "61. Insofar as set-off and counterclaim is concerned, a set-off of amounts due from financial creditors is a rarity. Usually, financial debts point only in one wayamounts lent have to be repaid. However, it is not as if a legitimate set-off is not to be considered at all. Such set-off may be considered at the stage of filing of proof of claims during the resolution process by the resolution professional, his decision being subject to challenge before the adjudicating authority under Section 60. xxx xxx xxx 63. Equally, counterclaims, by their very definition, are independent rights which are not taken away by the Code but are preserved for the stage of admission of claims during the resolution plan. Also, there is nothing in the Code which interdicts the corporate debtor from pursuing such counterclaims in other judicial fora. Form C dealing with submission of claims by financial creditors in the CIRP Regulations states thus........."....
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....its liability to discharge its debt and if there is a financial debt which is due and default is committed by the Corporate Debtor proceedings under Section 7 can be initiated. Mere filing of the counter claim or money suit cannot lead to dismissal of Section 7. If any such interpretation as suggested by the Appellant is accepted, all proceedings under Section 7 can be frustrated by initiating litigation by Corporate Debtor. 39. Coming to Ground No.7 that as the officers arrayed as Defendants in the suit have filed no written statement, this proves that all the assertions made in the suit against such officers stand admitted by such officers. We are of the view that in Section 7 proceedings Adjudicating Authority has not to examine the money suit filed by the Corporate Debtor against the bank and its officers. Those are separate proceedings. No allegation of fraud can be imputed on such basis. 40. Under Ground No.8, the Appellant submits that the bank has not disclosed the pendency of the suit and potential liability thereupon in its audited Balance Sheet for the year ending March 31, 2023. Mere filing of the suit when there is no adjudication in favour of the Corporate Debto....
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....e Debtor which were clear acknowledgment of liability by the Corporate Debtor. In synopsis at page no.1486 of the Appeal, following has been mentioned with regard to OTS proposal dated 05.09.2019, 07.09.2019, 23.09.2019, 16.12.2019, 21.09.2020 and 03.11.2020:- 05.09.2019, 07.09.2019, 23.09.2019, 16.12.2019, 21.09.2020 and 03.11.2020 Thereafter, written acknowledgements of liability were executed by the Corporate Debtor in the form of numerous OTS proposals including letters dated 21.09.2020, 03.11.2020, 16.12.2019, 05.09.2019, 07.09.2019 and 23.09.2019. 43. In Part-IV of the application also Financial Creditor has referred to documents evidencing continuing acknowledgment of debt by the Corporate Debtor. It is useful to extract following part of Part-IV of the application:- Documents evidencing continuing acknowledgement of debt by the Corporate Debtor: i. Letter of Acknowledgement of liability dated 26.03.2017 executed by the Corporate Debtor (annexed herewith as Annexure A-4) ii. Written One Time Settlement/ OTS offers made by the Corporate Debtor on 05.09.2019, 07.09.2019, 23.09.2019, 16.12.2019, 21.09.2020 and 03.11.2020 (collectively annexed herewit....
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....ourt was considering interpretation of a policy of marine insurance entered into by and between the parties covering goods in transit. A Claim by way of constructive total loss was raised by the Appellant with the insurer which was repudiated by the insurance company. The Hon'ble Supreme Court noted the correspondences between the parties and examined the letters of insurer and thereafter made following observations in paragraph 42:- "42. Only because the expression "without prejudice" was mentioned, the same, in our opinion, by itself was not sufficient and would not curtail the right of the insured to which it was otherwise entitled to. The expression "without prejudice" may have to be construed in the context in which it is used. If the purpose for which it is used is accomplished, no legitimate claim can be allowed to be defeated thereby." 46. The Hon'ble Supreme Court held that the expression "without prejudice" may have to be construed in the context in which it is used but the said expression shall not be allowed to defeat the legitimate claim. Counsel for the Appellant has relied on paragraph 43 of the judgment which paragraph 43 of the judgment is as follows:- ....
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....uments do not attract without prejudice privilege. This may be because although the words without prejudice were used, the negotiations were not for the purpose of a genuine attempt to settle the dispute. The most obvious cases are first, where the party writing was not involved in genuine settlement negotiations, and secondly, where although the words were used, they were used in circumstances which had nothing to do with negotiations. Surveyors' reports, for example, are sometimes headed without prejudice, although they have nothing to do with negotiations. The third case is, where the words are used in a completely different sense. Thus, in Council of Peterborough v. Mancetter Developments, the documentation was admissible because in context the words meant 'without prejudice to an alternative right and without concession to the other application' and had nothing to do with settlement. There are circumstances in which the correspondence is initiated with a view to settlement but the parties do not intend that the correspondence should be without prejudice. It may be that the parties positively want any subsequent court to see the correspondence and always ha....
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....aking has no legal effect must likewise be rejected. This letter is reminiscent of a letter that fell for consideration in Spencer case [Spencer v. Hemmerde, (1922) 2 AC 507 (HL)] as pointed out by Mr Harish Salve, "as a rule the debtor who writes such letters has no intention to bind himself further than he is bound already, no intention of paying so long as he can avoid payment, and nothing before his mind but a desire, somehow or other, to gain time and avert pressure".(AC p. 526) It was argued in a subsequent case [Bradford & Bingley Plc v. Rashid, (2006) 1 WLR 2066 (HL)] that an acknowledgment made "without prejudice" in the case of negotiations cannot be used as evidence of anything expressly or impliedly admitted. The House of Lords observed as follows: (WLR p. 2072, para 16) "16. ... But when a statement is used as an acknowledgment for the purposes of Section 29(5), it is not being used as evidence of anything. The statement is not evidence of an acknowledgment.It is the acknowledgement." (emphasis in original) Therefore, the "without prejudice" rule could have no application. It said: (WLR p. 2091, para 83) "83. Here, the [resp....
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....edgment of liability' which is made in writing signed by parties. The OTS proposal to settle the outstanding debt by making an offer by the Corporate Debtor is nothing but acknowledgment of liability which acknowledgment is to extend the limitation under Section 18 of the Limitation Act. Adjudicating Authority has rightly held that on the basis of OTS offer i.e. acknowledgement what is relevant is acknowledgment of liability. 51. Now coming to Ground No.13. Appellant's case is that the Financial Creditor had authorized one Nidhi Kumar through a Power of Attorney dated 01.09.2021 to act on its behalf, but Ms. Nidhi Kumar nominated Mr. Pawan Sharma to be true and lawful Attorney of the Financial Creditor. Section 7 application was submitted by Affidavit of Pawan Sharma claiming to be authorised representative of the applicant's bank authorised to sign the application. The Power of Attorney was also filed along with the Section 7 application which is brought on record at page 1501 to 1507 of the Appeal. 52. The Power of Attorney was signed by Nidhi Kumar in favour of Shri. Pawan Sharma on 22.12.2021 as it is clear from documents filed at Page Nos. 1502-1507. The Power of Attorne....