9911796707
TMI Blog2021 (4) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) M/s. Pegasus Assets Reconstruction Private Limited (hereinafter referred to as Petitioner/Applicant/Financial Creditor) was incorporated on 20.01.2004, bearing the CIN: U6599MH2004PTC144113 and having its Registered Office situated at 507, Dalamal House, Jamnalal Bajaj Marg, Nariman Point, Mumbai - 400021. (2) M/s. Yashomati Hospital Private Limited (herein after referred to as Respondent/Corporate Debtor) was incorporated on 16.03.2007 having CIN: U85110KA2007PTC068050 and having its registered Office situated at No. 2371/3, HAL Airport, Varthur Main Road, Munnekolalal, Marathahalli, Bangalore - 560037. Its authorised Share Capital is Rs. 52,00,00,000/- and Paid-up Share Capital is Rs. 401,456,840/-. (3) The Financial Creditor is an Assignee of South Indian Bank (SIB) Limited vide an Assignment Agreement dated 30.03.2016. The Corporate Debtor availed term loan of Rs. 15 Crores from the assignee Bank South India Bank Limited, which is now assigned to the Financial Creditor, under Consortium arrangement with State Bank of India, who has also granted term loan of Rs. 20 Crore as the Lead Bank, as per Sanction letter dated 26.02.2009. (4) The Corporate Debtor made payment Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ium. (3) Further, the Financial Creditor has executed Letter of Authority-dated 25.03.2009 in favour of State Bank of India whereby they have authorized SBI to act on their behalf. In para No. 5.16 of the O.A. No. 932/2014, the South Indian Bank claims that they issued a Notice for recalling of the entire Loan on 17/03/2014 and the said South Indian Bank clearly admits that the only documents are the Term Loan Consortium Agreement dated 25/03/2009, the Joint Deed of Hypothecation dated 25/03/2009 in favour of the Consortium Bank, Inter-se Agreement dated 25/03/2009 in favour of Consortium Bank and the Supplementary Consortium Agreement dated 29/01/2011 in favour of the Consortium Bank. The Financial Creditor has only produced a copy of the Agreement, which is executed in favour of State Bank of India. In fact, in the said Agreements, South Indian Bank is not even a signatory. The South Indian Bank and State Bank of India have exercised their right as per Article 8 of the Agreement dated 29/01/2011 and as per Article 8 they have issued a Joint Notice dated 27/10/2014. As per the said Notice dated 27/10/2014, both State Bank of India and South Indian Bank has appointed an Authorise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rim Order with reference to the action taken by the Authorised Officer on behalf of the Consortium comprising of State Bank of India and South Indian Bank. The same was subsequently modified by the Order of the Hon'ble High Court dated 12/10/2017. It is most important to note that the Order dated 4th December 2015, wherein the action of the Authorised Officer who was acting for the Consortium comprising of South Indian Bank and State Bank of India had restrained any further proceedings other than what had been impugned before the Debt Recovery Tribunal. (7) Therefore, once the Consortium comprising of South Indian Bank and State Bank of India elected to act together and engage the Authorised Officer who issued the Notices referred to supra on both their behalf. The Petition filed before this Hon'ble Tribunal will have to be subject to the outcome of the proceedings in the said Writ Petition which is still pending consideration before the Hon'ble High Court of Karnataka, Bengaluru. At this juncture the Financial Creditor had to seek permission from the Hon'ble High Court of Karnataka. 4. Shri Ramakanth Pandey, Senior Manager of the Petitioner, has filed a Rejoind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in discharge of its liability and then issuing certificate dated 20th November 2015. (4) Under the provisions of SARFAESI Act, 2002, especially U/s. 5, when such an assignment is made, the assignee being an ARC, registered with RBI, steps into the shoes of the assignor, and acquires all the right, title and interest as available to the assignor and therefore, obtains every right to enforce the securities secured in favour of the original Lender. So far as contention with regard to taking leave of Hon'ble High court is concerned, the Hon'ble high Court of Karnataka never restrained the Appellant to pursue its remedy under provisions of the Code. The Hon'ble High Court of Karnataka has seized only with the issue relating to proceedings under SARFAESI Act, 2002. Further, the issue before the Hon'ble High Court relates to proceedings initiated by the SBI pursuant to fresh demand notice dated 09.03.2017 issued in its individual capacity wherein SBI in its individual capacity has raised demand of Rs. 20,05,05,013/- raised u/s. 13 (2) of SARFEASI Act, 2012 and consequently possession notice upon the Corporate Debtor on 05.08.2015 under Rule 8 (1) of The Security Interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt or its assignor Bank i.e. South Indian Bank were never made parties in the Writ Petition No. 52886-52887 of 2015 or the LA No. 01 of 2017 filed by the Corporate Debtor and therefore, there was no restrain order against the Financial Creditor or its assignor Bank i.e., South Indian Bank. Moreover, the Hon'ble NCLAT further observed that although there is no bar in the I & B Code, 2016 for a financial Creditor/Bank to initiate CIRP proceedings individually even when it is part of a consortium. The Financial Creditor is competent to maintain the Section 7 application on the basis of the separate overdraft facility which it had granted to the Corporate Debtor outside the consortium. 5. Heard Shri Dinakar Singh learned Counsel for the Petitioner, and Shri Ajesh Kumar, Learned Counsel for the Respondent through Video Conference. We have carefully perused the pleadings of both Parties, and the extant provisions of the Code, the Rules made there under, and the law on the issue. 6. Shri Dinakar Singh, Learned Counsel for the Petitioner, while reiterating the various averments made in the petition, as mentioned supra, has further submitted that the debt and default in question are n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble NCLAT, New Delhi; (5) State of Gujarat vs. Kothari and Associates in Civil Appeal No. 1770 of 2005 passed by the Hon'ble Supreme Court of India (6) Shanti Conductors Private Limited vs. Assam State Electricity Board and other in Civil Appeal No. 8442-443 of 2016 Review Petitions (C) Nos. 786-87 of 2019 (7) Bimalkumar Manubhai Savalia vs. Bank of India and another in Company Appeal (AT) (Insolvency) No. 1166 of 2019 passed by the Hon'ble NCLAT (8) Manish Kumar vs. Union of India and another in W.P. (C) No. 26 of 2020 passed by the Hon'ble Supreme Court of India (9) Rajendra narottamdas Sheth and another vs. Chandra Prakash Jain and another in Company Appeal (AT) (Insolvency) No. 621 of 2020 by Hon'ble NCLAT (10) Balalkrishnan vs. Kotak Mahindra Bank Limited and another in Company Appeal (AT) (Insolvency) No. 1406 of 2019 passed by the Hon'ble NCLAT (11) B. Prashanth Hegde vs. SBI and another in Company Appeal (AT) Insolvency No. 68 of 2019 passed by Hon'ble NCLAT The Learned Counsel for the Respondent has also relied upon the judgment in Company Appeal (AT) (Insolvency) No. 407 of 2019 C. Shiva Kumar Reddy vs. Dena Bank passed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation and to take on record the Form-1 and the same was allowed an order dated 21.01.2021. 10. In the light of order passed by the Hon'ble NCLAT in the said Appeal, which stated to have become final, short point for consideration is whether the instant Company Petition/Application is within limitation, as per law, in the light of facts of case. 11. Since the Hon'ble NCLAT, by considering the findings of this Adjudicating Authority mentioned in the impugned order, has inter alia held that the AA has erred in directing South Indian Bank to go and get directions from the High court or to await decision of issue by the High Court, when SIB was not even party in the Writ Petition. It is also observed that CD is aware that both the orders were against SBI as portions reproduced from its statement of objections (Diary No. 18701), and held that it was difficult to accept that there was restraint order against SIB. Therefore, the contentions raised again on behalf of Respondents, with respect to those issues are not being adverted to or to decide them again, as the Hon'ble NCLAT has set aside the impugned order. 12. So far as the issue of limitation is concerned, admitted fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an a person entitled to the property or right; (b) the word "signed" means signed either personally or by an agent duly authorised in this behalf; and (c) an application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right. 14. So far as a provision of Code is concerned, Section 238A, inserted in the Code by way of Amendment Act No. 26 of 2018 is deemed to have come into effect from 06.06.2018. This Section 238A, being directly relevant for the present purpose, could also be usefully reproduced as under:- "238-A Limitation. - The provisions of the Limitation Act, 1963 shall, as far as may be, apply to the proceedings or appeals before the Adjudicating Authority, the National Company Law Appellate Tribunal, the Debt Recovery Tribunal or the Debt Recovery Appellate Tribunal, as the case may be." In the case of B.K. Educational Services, by referring other connected judgments, it is inter alia held that the date of the Code's coming into force on 01.12.2016 was wholly irrelevant to the triggering of any limitation period for the purposes of the Code, and Article 141 of the Constitution of India mandates that ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitation prescribed. The instant Company Petition is found to be filed in accordance with law and the Petitioner also suggested a qualified Insolvency Professional Ms. Medha Kulkarni bearing Registration No. IBBI/IPA-001/IP-P00121/2017-18/10263, e-mail: [email protected], as IRP, who has also filed written Communication in Form-2 dated 08.07.2019/01.03.2021, by inter-alia declaring that she is a qualified Insolvency Professional; there are no disciplinary proceedings pending against her with the Board or ICSI Insolvency Professional Agency. Hence, the instant Company Petition is fit case to admit by initiating CIRP by appointing IRP, and declaring moratorium etc., in respect of the Corporate Debtor. 18. In view of the above facts and circumstances of the case, by exercising powers conferred on this Adjudicating Authority, under provisions of Section 7 and other extant provisions of the IBC, 2016, we hereby admitted C.P.(IB) No. 144/BB/2017 by initiating Corporate Insolvency Resolution Process (CIRP) in respect M/s. Yashomati Hospitals Private Limited, the Respondent/Corporate Debtor, with the following consequential directions: 1) Ms. Medha Kulkarni bearing Registration No. IB ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
