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TMI Blog2021 (11) TMI 367X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. There is no illegality in the impugned order - Appeal dismissed. - Company Appeal (AT) (Insolvency) No. 1099 of 2020 - - - Dated:- 29-10-2021 - [Justice Anant Bijay Singh] Member (Judicial) And [Ms. Shreesha Merla] Member (Technical) For the Appellant : Ms. Arka Banerjee, Ms. Aritra Basu, Mr. Jishnu Chowdhury and Mr. Abhay Pratap Singh, Advocates. For the Respondent : Mr. PBA Srinivasan, Advocate for R-1. Mr. Arjun Padhiyar, Advocate for R-2. JUDGMENT Justice Anant Bijay Singh; This Appeal has been preferred by the Appellants Suspended Board of Directors of Kromme Glass Private Limited (Corporate Debtor) aggrieved and dissatisfied by the order dated 17.01.2020 passed by the Ld. Adjudicating Authority (National Company Law Tribunal), Kolkata Bench, Kolkata in C.P. (IB) No. 305/KB/2019 whereby and where under the application filed by the Respondent No. 1 (herein) under Section 7 of the Insolvency and Bankruptcy Code, 2016 (for short IBC) was admitted and the Corporate Insolvency Resolution Process of the Corporate Debtor commenced. 2. The facts giving rise in the instant Appeal is as under: i) That the Appellants Corporate Debtor was intera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 of the Appeal Paper Book). vii) On the same day, two Term Loan Agreements were entered into by an between the Respondent No. 1 and the Corporate Debtor. In terms of these Term Loan Agreements, the Respondent No. 1 provided further credit facilities, as Term Loans for a sum of ₹ 90,00,000/- and a sum of ₹ 1,32,00,000/- respectively, to the Corporate Debtor (Annexure-G at page 122 to 148 of the Appeal Paper Book). viii) In order to diversify its business, the Corporate Debtor requested for revision of the credit facilities. In the said circumstances, negotiations and/or deliberations ensued between the Corporate Debtor and the Respondent No. 1. Ultimately, the Respondent No. 1 agreed to revise the credit facilities as made over by the Corporate Debtor. Accordingly, a further sanction letter dated 09.01.2013 was made over by the Respondent No. 1 to the Corporate Debtor, in terms whereof, the revised credit facilities to the extent of ₹ 11,50,00,000/- was made over by the Respondent No. 1 (Annexure-H at page 149 to 151 of the Appeal Paper Book). ix) The Corporate Debtor could not tide over its financial difficulties. As a result, there was default on the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Appellants declared as a Non Performing Asset (NPA) on 30th June, 2014 and Application was filed under Section 7 of the IBC on 14th February, 2019, in view of the fact that the present case was completely covered by Article 137 of the Limitation Act, 1963, this fact has not been considered by the Ld. Adjudicating Authority. 7. It is further submitted that the Respondent No. 1 contended before the Ld. Adjudicating Authority that the time spent before the Debts Recovery Tribunal-II, Ahmedabad should be excluded under Section 14 of the Limitation Act, 1963, for the purpose of calculating the period of limitation, this fact has also not been considered by the Ld. Adjudicating Authority. 8. Learned Counsel for the Appellant in the course of argument referred to Rejoinder to Reply Affidavit filed by Respondent No. 1 and submitted that no acknowledgement has been made, within the prescribed period of limitation, in writing either by the Appellants or by the Corporate Debtor. The financial statements of the Corporate Debtor being Annexure R/5 and Annexure R/6 of the Reply Affidavit filed by the Respondent No. 1, would not corroborate any acknowledgement in writing within t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 021 (6) SCC 366 observed as following: 33. It is, therefore, clear that the majority decision of the Full Bench in V. Padmakumar (supra) is contrary to the aforesaid catena of judgments. The minority judgment of Justice (Retd.) A.I.S. Cheema, Member (Judicial), after considering most of these judgments, has reached the correct conclusion. We therefore, set aside the majority judgment of the Full Bench of the NCLAT dated 12.03.2020. 34. The NCLAT, in the impugned judgment dated 22.12.2020, has, without reconsidering the majority decision of the Full Bench in V. Padmakumar (supra), rubber-stamped the same. We, therefore, set aside the aforesaid impugned judgment also. 35. On the facts of this case, the NCLT, by its judgment dated 19.02.2020, recorded that the default in this case had been admitted by the corporate debtor, and that the signed balance sheet of the corporate debtor for the year 2016-2017 was not disputed by the corporate debtor. As a result, the NCLT held that the Section 7 application was not barred by limitation, and therefore, admitted the same. We have already set aside the majority judgment of the Full Bench of the NCLAT dated 12.03.2020, and the im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of CIRP expired on 21.10.2020. 24. It is further submitted that the 8th CoC meeting was duly convened on 07.01.2021 by the RP wherein the members resolved to initiate fresh EOI process and further resolved to sale scrap glass at the factory of the Corporate Debtor (Annexure-P at page 150 to 172 of the Affidavit). 25. It is further submitted that 9th CoC meeting was duly convened on 16.01.2021 by the RP wherein the members resolved to approve the Insolvency Resolution Process Cost incurred. 26. It is further submitted that the RP on 18.01.2021 made the public announcement in the prescribed Form-G and further submitted that EOI was received from 2 (Two) prospective REsolutino Applicants i.e. Gundeepsingh Gurdeepsingh Sood and Jasminekaur Gundeepsingh Sood jointely and Mega Innovative Crops Private Limited. 27. It is further submitted that the Hon'ble NCLT, Kolkata Bench vide order dated 08.02.2021 granted the exclusion for the period from 21.10.2020 till 16.12.2020 i.e. period of 57 days (Annexure- S at page 189 to 190 of the Affidavit). 28. It is further submitted that the members of CoC decided not to consider the Resolution Plan submitted by Mr. Gundeepsingh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... half of the Respondent No. 1 and Affidavit on behalf of the Respondent No. 2, we are of the considered view that the following facts are admitted in the instant Appeal. That the Appellants are suspended board of Directors of the Corporate Debtor Kromme Glass Private Limited. That on 16.01.2012, the Respondent No. 1 sanctioned a sum of ₹ 7,20,00,000/- as Cash Credit, a sum of ₹ 1,32,00,000/- and 90,00,000/- as Term Loan. Furthermore, the Respondent No. 1 also provided a Bank Guarantee to the extent of ₹ 1,50,00,000/- in favour of the Corporate Debtor. That on 28.03.2012 a Working Capital Consortium Agreement was entered between the Respondent No. 1, Union Bank of India and the Corporate Debtor. In terms of this agreement, the Respondent No. 1 and Union Bank of India, made over an aggregate sum of ₹ 17,40,00,000/- to the Corporate Debtor in order to acquire the assets and liabilities of Pabanso India Private Limited. It is also admitted fact that two Term Loan Agreements were entered between the Respondent No. 1 and the Corporate Debtor. In terms of these Term Loan Agreements, the Respondent No. 1 provided further credit facilities, of Term Loans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n NPA A/c, of Kromme Glass Pvt. Ltd. with your Banks in which the Appellants proposed to settle the account with both the Banks at a total offer value of ₹ 8.75 Crores which also amounts to acknowledgment of debt. Although, the Learned Counsel for the Appellant in the Rejoinder tried to dispute this documents on the ground that the signature of the Appellant in Annual Report as Annexure R/7 and R/8 of the Reply Affidavit cannot be regarded as an acknowledgement made within the prescribed of limitation. Therefore, the Respondent No. 1 will not be entitled to a fresh period of limitation. Further, this Tribunal take note of the fact that no interim order was passed by this Tribunal as per the status report of the Respondent No. 2. The CIRP has been completed and resolution plan has been submitted before the Ld. Adjudicating Authority for approval. It is admitted fact that in the letter dated 04.01.2020 the Appellants stated that they are ready to settle the amount with both the Banks at the total value of 8.75 Crores, this OTS amounts to acceptance of the debt and in view of the law laid down in the judgment passed by Hon ble Supreme Court in Asset Reconstruction Co ..... 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