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TMI Blog2021 (9) TMI 930X X X X Extracts X X X X X X X X Extracts X X X X ..... 2018 before the Adjudicating Authority (National Company Law Tribunal, Kolkata Bench, Kolkata). The Bank claimed before the Adjudicating Authority that the Corporate Debtor was granted credit facility initially by Canara Bank in 1995 and subsequently the State Bank of India and Central Bank of India became part of the lenders and granted credit facilities to the Corporate Debtor. Necessary documents were executed. In 2010, there was revival structuring effort. New Sanction Letter was issued on 18th March, 2013. The name of the Corporate Debtor earlier was "M/s. Pacific Cotspin Limited". This name was changed to the present name of Corporate Debtor namely "M/s. Silverton Spinners Limited". The Bank claimed that new Sanction Letter was issued on 18th March, 2013. The Corporate Debtor failed to act as per the CDR Package and the Account was termed NPA on 25.08.2015 subsequently as per Procedure under the RBI Guidelines date of NPA was revised to 15.01.2013 based on when the CDR Package had been formalized. The Bank pointed out the acknowledgements of the Corporate Debtor and the existence of the outstanding debt which was in default. The Bank claimed that the debt outstanding was Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments on 31st July, 2002. The Appeal refers to the further financial services availed. Relying on Inter Se Agreement dated 12th January, 2007 Appellant claims that only the Lead Banker i.e. Canara Bank can initiate proceedings. The other Banks had nominated Canara Bank as the Lawful Attorney for them. Referring to RBI Guidelines regarding CDR the Appellant claims that the CDR package was reworked on 15th March, 2013 and Loan Account of Corporate Debtor was reverted back to the state of NPA classified by Canara Bank, as on 27.07.2009 as per RBI Guidelines. It is claimed that in the Letter dated 21st May, 2015 (Appeal Page 561) the Corporate Debtor had intimated only the Canara Bank with regard to the change of the name in the context of CDR Master Restructuring Agreement dated 22.03.2013. Appellant claims that the said nomination became redundant on CDR Exit with the Lead Bank reverting to the status of NPA on 27.07.2009. Thus the Appellant claims that the said debt is time-barred and that State Bank of India could not have initiated proceedings under Section 7 of IBC. 6. The Learned Counsel for the Appellant has argued the matter on the above lines. On one hand it is argued that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate Bank of India and the Canara Bank in which mechanism was laid as to how to initiate action and on recovery how to distribute the proceeds and rights were reserved in clause 7 (Appeal Page 87) with regard to the Lead Bank distributing the realizations and the right of the State Bank of India relating to the Borrower was saved with regard to the action State Bank of India can take regarding money that may still remain to be due. It is argued that this was between the Banks and the Corporate Debtor cannot take advantage of the same and that Section 7 of IBC clearly gives right to the Financial Creditor to initiate action and there is no bar under the law for State Bank of India to initiate action when debt is due and payable. It is argued that if the Lead Bank for any reason does not take action the rights are still there with the other Banks of the consortium to initiate action if the debt has become due and in default. 8. We have heard the parties and gone through the material on record. Although much is argued with regard to the circular issued by RBI, we keep Section 238 of IBC in view which provides that the code applies notwithstanding anything inconsistent therewith conta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ank has sanctioned credit facility [WC] upto a maximum of Rs. 77.49 crores along with TL of Rs. 85.55 cr subject to the terms and conditions stipulated in the Bank's sanction letter bearing reference no MSCR:PACIFIC:643:2012-13:GD dated 15.03.2013 and MRA dt. 22.03.2013. Accordingly, we have executed loan documents dated 22.03.2013 and Master Restructuring Agreement & Inter Se Agreement among Canara Bank, State Bank of India & Central Bank of India dated 22.3.2013. Our name of the Company has been changed from M/S PACIFIC COTSPIN LIMITED to M/S SILVERTON SPINNERS LTD. The earlier loan papers executed by us in the name of M/S PACIFIC COTSPIN LIMITED is Continuing and Binding on us. Yours Faithfully [Borrower]" Thus, the Corporate Debtor clearly referred to the credit facilities and documents executed between the parties and the binding liability under the documents on the Corporate Debtor. 10. Then, reference needs to be made to another acknowledgment of the Corporate Debtor which is dated June 15, 2016 (Reply of the Bank, Annexure A-1, Diary No. 19139). This Letter was addressed by the Corporate Debtor to (1) Deputy General Manager CDR Cell, (2) Canara Bank, (3) State Ban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed. (2) Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872, oral evidence of its contents shall not be received. Explanation.-For the purposes of this section,- (a) an acknowledgment may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to set-off, or is addressed to a person other than 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." It is clear from Clause (a) of the Explanation of Section 18 of the Limitation Act that even if an acknow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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