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TMI Blog2020 (3) TMI 1350X X X X Extracts X X X X X X X X Extracts X X X X ..... ditor on 19.03.2005 and such proposal was got approved by the Financial Creditor vide its letter dated 20.04.2005 for payment of 100% of principal amount of ₹ 300 Lakh within three months. It is also evident that the Corporate Debtor duly accepted by signing the above stated one-time proposal. This fact has been further admitted by the Corporate Debtor vide its reply dated 26.08.2008 to the statutory demand notice (under Section 13(2) of the SARFAESI Act) by the Petitioner, wherein, the Corporate Debtor took such plea that company is still keen for OTS and was looking for alternative source of funding including sale of its surplus land. It has held that the Corporate Debtor has accepted the settlement proposal OTS and again confirmed its debts due as per terms of OTS in its reply dated 26.08.2008 which can be considered as valid acknowledgement of its debt liability to the extent of certain sum of ₹ 300 Lakhs which is obviously more than of rupees one lakh. Hence, the Corporate Insolvency Resolution Process (C.I.R.P.) can very well be triggered in respect of the Corporate Debtor provided that such petition is filed within the limitation period. The commencement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as a Financial Institution within the meaning of Section 2(h)(ii) of the Recovery of Debts Due to Banks and Financial Institution Act, 1993 read with Section 2(m)(ii) of the SARFAESI Act, 2002 as per Central Government Notification vide S.O. No. 2505 dated 29.09.2004. It is informed that the Petitioner, SASF was incorporated on 24.09.2004 with an identification number: AAETS8709G. the SASF is being managed by a Board of Trustees with Mr. Rakesh Sharma as its Chairman. The registered office of SASF is located at: IDBI Tower, 3rd Floor, WTC Complex, Cuff Parade, Mumbai, Maharashtra - 400005. It is also informed that the Petitioner has appointed Mr. Mahendra P. Parmar as its Authorised Representative. 3. It is stated that the Respondent/Corporate-Debtor, M/s. Hotline Glass Limited is a company incorporated on 15.06.1992 with CIN: L32101MP1992PLC011567. The authorised share capital of the company is ₹ 80,00,00,000/- (Rupees Eighty Crores only) and the paid-up share capital is ₹ 79,95,92,600/- (Rupees Seventy-Nine Crore Ninety-Five Lakh Ninety-Two Thousand Six Hundred Only). It is stated that the Respondent/Corporate Debtor is engaged in the business of manufacturing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ck Industrial Companies (Special Provisions) Repeal Act, 2003 (1 of 2004) [vide Government of India, Ministry of Finance, Department of Financial Services, New Delhi's Notification dated 25.11.2016 under S.O. No. 3568(E)]. Hence, Therefore, the Petitioner proceeded to move the present application under Section 7 to trigger the Corporate Insolvency Resolution Process ( CIRP ) in respect of the Respondent/Corporate Debtor Company. 9. It is stated that, earlier, the Petitioner had issued a notice dated 17.06.2008 under Section 13(2) of the SARFAESI Act, 2002 to the Corporate Debtor and demanded from the Respondent a sum of ₹ 56,14,70,352=00 (Rupees Fifty-Six Crores Fourteen Lakhs Seventy Thousand Three Hundred Fifty-Two only) which includes the accrued interest up to 31.12.2007. 10. It is also stated that present Petitioner issued a recall notice dated 17.02.2018 to the Corporate Debtor by demanding a sum of ₹ 210,92,31,740=00 as on 01.01.2018. 11. Thus, there is a debt due against the Corporate Debtor and payable to the Petitioner with the accrued interest as on 01.12.2018 which is to the tune of ₹ 600,10,01,165=00 (Rupees Six Hundred Crores Ten Lakhs O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner withdrew the offer of OTS vide a letter dated 17.08.2006 (Page No. 106 of the present petition). The Respondent filed a reference before BIFR in February 2007 on the basis of its audited balance sheets as on 31.12.2006, which was registered as a case no. 20/2007 by the SICA. The Respondent/Corporate Debtor, for this purpose filed Form-A before the BIFR, mentioning the company is 'temporarily closed' and the BIFR dismissed the reference by order dated 04.05.2009 as being non-maintainable. The Respondent thereafter filed an appeal before AAIFER and by its order dated 21.06.2010, AAIFER remanded the case back to BIFR. The BIFR appointed PNB as Operating Agency ( OA ) and directed to carry out special investigation audit (SIA) of the Company. Based on the findings/observations of the SIA report, BIFR dismissed the said reference based on audited financial statement as on 31.12.2006. Later on, the Respondent herein, filed a fresh reference number before the BIFR based on audited balance sheets as on 31.03.2012 vide letter dated 16.06.2012 addressed to BIFR and the same was registered as Case No. 06/2014, which was said to be pending till the date of repealing of SICA with e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncipal amount outstanding for ₹ 31.71 Crores as on 24.03.1999, total unpaid interest, penalty and charges accrued up to 01.12.2018 (total 17 years) for ₹ 563,39,01,165=00 has been added to the total outstanding dues for ₹ 600,10,01,165=00. Hence, it is stated to be calculated properly in accordance with the terms and conditions of sanction letter which has been accepted by the Respondent/Corporate Debtor Company. 21. We examined the above stated issue on its merits and have gone through the averments made by both the parties in their respective pleadings, i.e. application/objections, I.B. Petition, reply affidavit etc. as well as in their written submissions. 22. The crucial point of limitation involved in this present I.B. Petition needs consideration and to be dealt with by this Court in the light of the Law settled by the Hon'ble Supreme Court and judicial precedents applicable. 23. It is now undisputed legal position that, while, filing the present Petition under Section 7 of the I.B. Code, only article 137 of the Limitation Act would attract which provides that the application can be filed within three years from the right to sue accrue i.e. the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ept pending till 01.12.2016, when the present I.B. Code came in to force. By operation of this, the proceedings pending under the provision of SICA Act stood abated. Therefore, the commencement of limitation for the present matter would start from the date acknowledgement for debts due and payable under one time settlement, i.e. 26.08.2008 (the date of reply admitting of debt) or 20.04.2005 the date of OTS which was assured to be complied with by the Corporate Debtor. Further, the period spent in during the pendency of SICA proceedings is required to be excluded. It is further found that the present petition is filed within the remaining period of three years from 01.12.2016. Admittedly, the Petitioner/Financial Creditor has filed the present petition on 10.01.2019, which is found to be filed within three years after exclusion of such period consumed in the SICA proceedings. Hence, the present petition is maintainable before this Adjudicating Authority. 27. Further, the Learned Counsel appearing for the Petitioner Bank drew our attention to the decision of co-ordinating Bench of NCLT, New Delhi having similar circumstances wherein, the NCLT, New Delhi took a view that such perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rguments and perused written submissions made by both the counsels. Respondent contends that the date of default in the present case is 01.04.2000 and 03.04.2000 and yet the petitioner is mute about the steps taken by IDBI and the petitioner during the period 2000 to 2019 for seeking recovery of the alleged dues. While going through the documents Tribunal observed that based on the balance sheet of corporate debtor as on 31.12.2006 filed an application under Section 15(1) of Sick Industrial Companies Act, 1985 before BIFR in January 2007 which was admitted as case no. 09/2007 and was pending before BIFR till the SICA Act, 1985, was repealed and in view of the applicant could not take any steps against the corporate debtor for recovery. Further, SICA has been repealed by way of a notification dated 25.11.2016 published by the Government of India with effect from 01.12.2016 and thus the BIFR established under the provision of SICA was also abolished. As per Section 22(5) of SICA (since repealed), period from 15.01.2007 to 30.11.2016 is to be excluded for the purpose of limitation. Between 2004 to 2007 it is also seen that dispute settlement was arrived, however the same stood withdra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; b. transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; c. any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002); d. the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. i The moratorium order in respect of (a), (b), (c) and (d) above shall not apply to the transactions notified by the Central Government. ii However, the order of moratorium shall not apply in respect of supply of essential goods or services to Corporate Debtor. iii The Applicant shall also make public announcement about initiation of Corporate Insolvency Resolution Process, as required by Section 13(1)(b) of the ..... 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