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TMI Blog2020 (8) TMI 424X X X X Extracts X X X X X X X X Extracts X X X X ..... S proposal which was later on accepted on 27th December 2018 by the Bank. Thus, it is clear that a fresh period of limitation started after the acknowledgement of the debt by the Corporate Debtor and the Petition was filed within the limitation. Therefore, it is clear that the Petition is not time-barred. It is on record that on the day petition was admitted there was status quo order by the Hon ble High Court and which was in the knowledge of the Adjudicating Authority. But the Adjudicating Authority admitted the Petition by the impugned order dated 23rd August 2019. Learned Counsel for the Appellant placed reliance on the Respondent‟s letter dated 29th July 2019, which is at page 60 of the paper book. On perusal of the record, it is apparent that after acceptance of OTS for settling the dues of all the three companies in Rs. Sixty Crores, Bank has received a substantial amount from the Corporate Debtor. It is also clear that after making default in payment as per terms of OTS, the Corporate Debtor further paid rupees One Crore to the Bank for renewing the OTS. Bank even after accepting after rupees One Crore revoked the offer to renew the OTS. Considering the present/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not withdraw the Petition and suddenly on 29th July 2019 issued a letter asking them to deposit the balance amount as per terms of OTS. But later on, another notice about the revocation of OTS was sent on 31st July 2019. The corporate debtor received the said letter on 07th August 2019. 5. The Appellant pleaded that the Respondent Bank has not given a reasonable time to the corporate debtor and has acted arbitrarily; that during consideration of OTS, the Appellant on behalf of all the three companies handed over Rs. one Crore to the Respondent Bank on 19th August 2019 as part payment against OTS. By accepting the part consideration in connection with the OTS, the Respondent Bank has taken the settlement; the Petition is barred by limitation as per Section 238-A of the Code, read with Article 137 of the Limitation Act; the particulars of Form 2 are incomplete. Therefore, the Application filed under Section 7 of the Code could not have been admitted; the applicant has failed to satisfy the compliance of Section 7(5)(a) of the Code; Para VI of Form 2 is not proper and cannot be treated as a valid declaration; the Hon ble Guwahati High Court in Writ Petition (C) No.6029 of 2019 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... failed to adhere to the terms and conditions of the OTS. As such, the Competent Authority of the Bank revoked the OTS on 31st July, 2019 and the same was also conveyed to the Appellant . 11. It is further stated in the Written Submissions of the Respondent that during the pendency of the present proceedings, the Appellant again approached the Respondent Bank for the revival of earlier OTS by tendering a cheque for Rs. One Crore as partial payment of OTS on 10th October 2019. Since the amount offered was on a lower side, and the Appellant had failed to comply the earlier terms and conditions of OTS, the Competent Authority of Bank did not deem it fit to consider it again. The said decision was conveyed by the Respondent Bank vide their letter dated 16th October, 2019 . 12. Based on the above submissions, it is undisputed that the consolidated amount of ₹ 60/- crores was offered by the Appellant for the outstanding dues of all the three Companies through OTS and this offer was accepted by the Bank on 27th December 2018. It is also admitted fact that during the pendency of Appeal, again the Appellant made an offer to abide terms of earlier OTS. The Appellant paid Rs. One ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 7(5)(a) provides that where the Adjudicating Authority is satisfied that the default has occurred and the Application under Section (2) is complete and no disciplinary proceeding pending against the proposed Resolution Professional, it may, order, admits such Application. Therefore, a petition under Section 7 can be admitted by the Adjudicating Authority if it is complete and satisfies the parameters as laid down in Section 7(5)(a) of the Code. In this case, the Appellant alleges that Form 2 prescribed under the Adjudicating Authority Rules, which was filed along with the Application, copy of which is Annexure-A3 annexed with the Appeal, is not proper. The Photostat copy of Annexure A3 is as under: On perusal of the declaration by the proposed Insolvency Resolution Professional, it appears that the proposed IRP Mr Anil Agarwal has not given declaration that no disciplinary proceeding is pending against him. It is also evident that the declaration of proposed Insolvency Resolution Professional, Annexure A3, is not in prescribed Form 2 under the Adjudicating Authority Rules. Therefore, as per the Ist provisio to Section 7(5) of the Code, the Adjudicating Authority s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection it is further contended by the Appellant that date of default as shown in the Form 1 is 31st March 2016 and Petition is filed on 09th July 2018. Therefore, on this basis petition is time barred. 21. It is important to mention that the Appellant has annexed a letter Annexure A4A dated 5.3. 2018 ,which is at page 57 of the paper book , wherein it is stated that: We have decided to propose your steamed bank to settle our loan account under One Time Settlement ,so that we can arrange some investor for running the plant as well as gradually liquidating the OTS amount .- It is also on record that the corporate debtor again issued a proposal of One Time Settlement on DT. 13.3. 2018 to settle the entire dues of Financial Creditor .Copy of acknowledgement of dues is at page no 59 of the paper book. 22. The above acknowledgment of debt dated 13rd March 2018. Section 18 of the Limitation Act provides that; where before expiration of the prescribed period for a suit or application in respect of any property or right, any acknowledgement or liability in respect of such property or right has been made in writing signed by the party against whom such property or right is cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndency of Section 7 of the Application. 26. On perusal of the record, it is apparent that after acceptance of OTS for settling the dues of all the three companies in Rs. Sixty Crores, Bank has received a substantial amount from the Corporate Debtor. It is also clear that after making default in payment as per terms of OTS, the Corporate Debtor further paid rupees One Crore to the Bank for renewing the OTS. Bank even after accepting after rupees One Crore revoked the offer to renew the OTS. Considering the present/prevailing economic scenario of the country and downfall/slump in every business activity, we deem it fit and proper to provide one more opportunity to the parties for considering the OTS (One Time Proposal) in a fair, just, objective and dispassionate manner. 27. On perusal of the record that it is also evident that there is no proper compliance under Section 7(5)(a) of the Insolvency and Bankruptcy Code, but this defect in the Application is a curable defect which can be rectified. It is also on record that the admission order was passed even after the status quo order of the Hon ble High Court. 28. In the circumstances, as stated above this Tribunal allows the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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