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TMI Blog2022 (10) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... and which is supported by number of documents. It is a clear case, where, despite opportunities given to the Corporate Debtor to pay the balance amount of OTS, the Corporate Debtor failed to pay the balance amount and the OTS was revoked by the Bank, as is evident from the letter dated 23.07.2014. It is also clear from the documents shown above, the Corporate Debtor was merely seeking extension, one after another and this could not continue for all times to come as the Financial Creditor was required to invoke its remedy under law within the period of limitation and which clearly happened in the present case. There are no hesitation to hold that the present application which was filed before this Adjudicating Authority on 12.12.2019 is well within the period of limitation as is shown from the facts, dates and documents above, the limitation period from time to time stood extended. The present petition made by the Financial Creditor is complete in all respects as required by law. The Petition establishes that the Corporate Debtor is in default of a debt due and payable and that the default is more than the minimum amount stipulated under section 4 (1) of the Code, stipulated a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lakh at the time of respective dates of acquisition) was owed to the Financial Creditor. Restructuring Package continued successfully for some time, before the Corporate Debtor started neglecting to pay the amount as per approved terms. 8. The Financial Creditor on 11.01.2013 and 25.01.2013 had issued notices under section 13(2) of the SARFAESI Act, 2002, claiming an amount of Rs. 45,82,581/- (including interest upto 31.12.2012) towards Restructuring Support Finance and Rs. 55,25,32,496/- (including interest upto 31.12.2012) towards Restructuring Package. The Corporate Debtor on 09.03.2013 and 25.03.2013 submitted its representations to the said notices to which the Financial Creditor replied vide Letters dated 25.03.2013 and 06.04.2013 respectively. In furtherance of action under Securitization Act, the Financial Creditor took symbolic possession of the mortgaged property on 27.06.2013. 9. However, in the meantime, the Corporate Debtor got the Financial Creditor impleaded in the proceedings pending before Hon ble High Court at Patna in Civil Writ Jurisdiction Case No. 4748 of 2013 and obtained stay on further action under SARFAESI Act vide Order dated 25.03.2014. 10. An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the instrument under section 138 of the Negotiable Instruments Act. The Corporate Debtor attributed the default to withdrawal of arrangements with the Strategic Investor. The Corporate Debtor kept making false promises for making payment of balance amount with the sole motive to gain time, 16. Thereafter, vide letter dated 27.06.2019, the Corporate Debtor again sought an extension for payment of balance OTS amount till 30.09.2019. The Financial Creditor vide letter dated 23.07.2019 rejected the request being devoid of merit as the Corporate Debtor had repeatedly failed to honour its commitment 17. On 31.07.2019, the Corporate Debtor again requested for extension of time till 31.12.2019 for payment, giving lame excuses for non-payment. On 18.09.2019, the said request was rejected by the Financial Creditor and it was also informed that because of revocation of the OTS arrangement, the Corporate Debtor becomes liable for payment of total dues amounting to Rs. 167,65,93,521.98 (Rupees One Hundred and Sixty Seven Crore Sixty Five Lakh Ninety Three Thousand Five Hundred and Twenty One and Ninety Nine Paise) after accounting for the payments made by it, as on 31.08.2019As the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments were entered into by and between the parties. Finally, on 08.08.2018, the Financial Creditor on the basis of the request letter of the Corporate Debtor dated 10.07.2018 extended the time to repay till 09.08.2018 with certain conditions. Therefore, such acceptance of the offer of the Corporate Debtor becomes a fresh and binding contract by and between the Financial Creditor and the Corporate Debtor. (Page No. 348 of the Application as Exhibit V) 23. Thereafter, the Corporate Debtor had failed to adhere the terms of settlement and again on 27.06.2019 prayed for extension of time, which was rejected by the Financial Creditor on 23.07.2019 and subsequently another request was made by Corporate Debtor on 31.07.2019 which was also rejected by the Financial Creditor on 18.09.2019 categorically stating that because of the breach of the approved terms of OTS, the liability of the Corporate Debtor stands restored to an amount of Rs. 167.66 Crore as on August 31, 2019. Therefore, the default starts from August 31, 2019 and the amount of defaults stands at Rs. 167.66 Cr, as stated in Para IV (1,2) of the said the said application 24. As the date of default is August 31, 2019 as men ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a taken by the Corporate Debtor, the period of limitation came to an end on 10.01.2016, whereas the present Company Petition has been filed on 12.12.2019, therefore the same is barred by law of limitation. 29. We have considered the plea taken by the Corporate Debtor and have perused the record. 30. Considering the plea of Limitation, we have taken note all the following documents; dates and events, the same are part of the pleadings and are being narrated hereinafter: a. This petition under section 7 of the Code was admittedly filed on 12.12.2019 before this Adjudicating Authority. It is a matter of record at page No. 339, Volume-III of the application, there was an order passed by the Hon ble High Court of Judicature at Patna on 25.03.2014 in one Writ Petition filed by the Corporate Debtor being No. CWJC No. 4748/2013, wherein the Corporate Debtor admitted that the applicant herein had a proposal for OTS, which was agreeable to it for an amount of Rs. 250 Lakhs which was in full and final settlement of dues aggregating to Rs. 55,78,32,034.00/- as on 31.12.2012 subject to the condition that Rs.50 Lakh is paid within one week and the balance amount of Rs. 200 Lakh is made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate Debtor requested for extension of time for the payment of balance amount of OTS. 39. In terms of letter dated 08.08.2018 (Annexure-V at page 351 of the Company Petition), the Financial Creditor asked the Corporate Debtor to clear its dues on or before 09.08.2018. It was made clear that in the event it fails to clear its dues in term of the OTS, the original liabilities shall be restored and steps to recover the balance dues shall be initiated against the borrower/ guarantor. 40. It is further evident from letter dated 23rd July, 2019 (Annexure-X at page 353 of application). Any further request for extension in payment of balance OTS amount was rejected and the OTS proposal revoked, in view of the failure of the Corporate Debtor to clear its balance OTS amount despite repeated opportunities. 41. Now coming to the plea of Corporate Debtor regarding limitation, in view of the above dates, events, facts and documents referred to above, we are of the view initially after the commitment made by the Corporate Debtor before the Hon ble High Court at Patna in 2014 to pay Rs. 250 Lakh and the time limitation stood extended. 42. It is clear from the judgment of the Hon ble Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led by the Corporate Debtor challenging the decision. 47. Thus, it is an admitted position, that the Corporate Debtor owes debt to the Financial Creditor and is in default, as is shown from the correspondence hereinabove after the passing of the judgment of the Hon ble Division Bench on 23.11.2017 in L.P.A. No. 316/2017 and meeting of the Apex Court on 22.11.2017 in compliance of the judgment of the Hon ble High Court. The Corporate Debtor vide letter dated 26.03.2018 which has been marked as Annexure-T at page 345 of the Company Petition admitted its liability of balance amount of Rs. 2.50 Crore and subsequently sought extension on various occasions. 48. The contention of the Corporate Debtor is found to be incorrect, in view of the factual position stated hereinabove and which is supported by number of documents. It is a clear case, where, despite opportunities given to the Corporate Debtor to pay the balance amount of OTS, the Corporate Debtor failed to pay the balance amount and the OTS was revoked by the Bank, as is evident from the letter dated 23.07.2014. It is also clear from the documents shown above, the Corporate Debtor was merely seeking extension, one after anoth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver dies with lapse of time but it is the remedy which dies. But under certain circumstances such remedy may get a fresh lease of life. Section 25(3) of the Indian Contract resuscitates a time-barred remedy to enforce payment by way of suit, consequent upon a promise made by debtor to pay off the debt or liability. In such a case, where the payment could be enforced by a suit, it means that it still has the character of legally enforceable debt as contemplated by 'Explanation' to Section 138 of the Act. 21. While considering acknowledgement or promise , another important aspect would be as regards the quality and kind of evidence required to establish such acknowledgement or promise . Hon'ble the Supreme Court, in Shapoor Freedom Mazda v. Durga Prosad Chamaria, MANU/SC/0254/1961 : AIR 1961 Supreme Court 1236, while discussing 'acknowledgement' of debt in terms of section 19 of Limitation Act, held that an admission as regards liability may be in any form and may be 'express' or 'implied,' and that acknowledgment requires to be construed liberally. (emphasis implied) 52. The present petition made by the Financial Creditor is comple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge to the IRP within one week from the date of receipt of this Order, in default of which coercive steps will follow. There shall be no future opportunities in this regard. g. The Interim Resolution Professional is expected to take full charge of the Corporate Debtor, its assets and its documents without any delay whatsoever. He is also free to take police assistance in this regard, and this Court hereby directs the Police Authorities to render all assistance as may be required by the Interim Resolution Professional in this regard. h. The IRP/RP shall submit to this Adjudicating Authority periodical report with regard to the progress of the CIRP in respect of the Corporate Debtor. i. The Financial Creditor shall deposit a sum of Rs. 3,00,000/- (Rupees Three Lakh only) with the IRP to meet the expenses arising out of issuing public notice and inviting claims. These expenses are subject to approval by the Committee of Creditors (CoC). j. In terms of section 7(5)(a) of the Code, Court Officer of this Court is hereby directed to communicate this Order to the Financial Creditor, the Corporate Debtor and the IRP by Speed Post, email and WhatsApp immediately, and i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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