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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 ..... nsel submitted that Eclat Industries Ltd., the Corporate Debtor had availed secured credit facilities from IDBI Bank and Bank of Baroda. IDBI Bank on 31.03.2010 and Bank of Baroda on 22.01.2011 assigned their respective stakes by way of registered Assignment Agreements/Deeds of Assignment along with the underlying securities in favour of the Financial Creditor, acting in its capacity as Trustee of IARCBOB- CORP-10/2008/09 Trust. 4. On 28.01.2011, on the request of the Corporate Debtor for restructuring of the above loans, the Financial Creditor herein, vide letter dated 29.01.2011 agreed to restructure the dues subject to certain terms and conditions. 5. Thereafter, on the request of Corporate Debtor, the Financial Creditor vide letter dated 01.02.2011 sanctioned Restructuring Support Finance of Rs. 60 Lakh, subject to certain terms as mentioned therein. 6. The Financial Creditor on 04.03.2011 executed Agreement for Restructuring as well as Agreement for Restructuring Support Finance with the Corporate Debtor. Mr. B.N. Choubey and Mrs. Chanda Choubey, being the guarantors executed their Personal Guarantee-Cum-Indemnity. 7. The Corporate Debtor by way of execution of the "Agreem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to take action for proceedings initiated under the SARFAESI Act. 13. The Corporate Debtor on 26.03.2018 requested the Financial Creditor for revival of One-Time settlement for payment of balance amount of Rs. 200 Lakh, which was accepted by the Financial Creditor vide Letter dated 02.04.2018, subject to certain terms and conditions, wherein it was specifically stated that in case of default, the Financial Creditor herein will be at liberty to withdraw the sanction and restore the original liabilities from which the amount paid by the borrower in the interregnum will be adjusted. 14. However, the Corporate Debtor again failed to adhere to the payment terms after payment of Rs. 50 lakhs. The Corporate Debtor vide letters dated 10.07.2018 and 03.08.2018 again sought more time for payment of balance amount from the funds to be arranged through a Strategic Investor identified by them. 15. The Financial Creditor considering the request, again vide Letter dated 08.08.2018 agreed to extend time for payment as prayed for by the Corporate Debtor. However, the terms of OTS were not honoured after payment of Rs. 80 Lakh with last payment made on 10.09.2018. The postdated cheque deposited b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Page 355 of the Application as Exhibit Y) 20. It is submitted that, there has been continuous communications between the parties since the assignment and several new agreements were entered into by and between the parties. 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). 21. Thereafter, the Corporate Debtor 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 amount to Rs. 167.66 Crore on 31.08.2019. (Page 355 of the Application as Exhibit Y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned Counsel placed reliance on B.K. Educational Service Private Limited v. Parag Gupta & Associates, (2019) 11 SCC 633, Vashdeo R. Bhojwani Vs. Abhyudaya Co-operative Bank Limited and Another, (2019) 9 SCC 158, Gaurav Hargovindbhai Dave Vs. Asset Reconstructions Company (India) Limited and Another, (2019) 10 SCC 572, Jignesh Shah and Another Vs. Union of India and Another, (2019) 10 SCC 750, Sagar Sharma & Anr. Vs. Phoenix ARC Pvt.Ltd. & Anr. (2019) 10 SCC 353, V. Hotel Limited Vs. Assets Reconstruction Company (India) Limited, Company Appeal (AT) (Insolvency) No. 525 of 2019, Sh G Eswara Rao Vs. Stressed Assets Stabilisation Fund & Another, Company Appeal (AT) (Insolvency) No. 1097 of 2019. Analysis and Findings 27. Heard the learned Counsel for the Financial Creditor and the Corporate Debtor and perused the record. As is evident from the order dated 29.07.2022, when the matter was heard, the Corporate Debtor chose to rely on the written note of arguments and stated that the note be treated as its arguments. 28. We see from the note of arguments furnished on 29.01.2021, the plea that has been raised is that the present application is barred by law of limitation and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nancial Creditor (Ext-T at page 345 of the Company Petition). While giving the reference of the order/judgment passed by the Hon'ble High Court at Patna as referred above to extend the time of OTS by six months. In this communication, it is clearly mentioned that the Corporate Debtor was ready and willing to pay the amount of OTS agreed to pay it before the Hon'ble High Court at Patna. 35. Vide letter dated 02.04.2018 (Ext. U page 346 of the Company Petition), the Corporate Debtor asked for certain conditions to pay its outstanding in terms of the OTS. The Corporate Debtor asked for the withdrawal of all the legal proceedings as one of the condition precedent to pay the amount of OTS. 36. Vide letter dated 10.07.2018, the Corporate Debtor made the part payment of Rs.30 Lakh, which is evident from Ext-V page 348 of the Company Petition. It needs to be mentioned here that the Corporate Debtor also paid an amount of Rs. 50 Lakh as in the extended period in terms of the Hon'ble High Court's order referred above. 37. Again, vide letter dated 03.08.2018, the Corporate Debtor requested the Financial Creditor for acceptance of the OTS with the terms mentioned in the said letter. 38. Vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nk, here the appellant International Assets Reconstruction Ltd. (IARCL) in LPA No. 316/2017 and after hearing of all concern proceed with matter in accordance with law. The findings of the Hon'ble Division Bench of the High Court are from page 408 to 409 of V-III of the Company Petition. 44. The Apex Committee in pursuance to the directions passed by the Hon'ble High Court held its special meeting on 21.12.2017. The proceeding of this meeting have been placed on record in V-II at page 249 of the affidavit-inreply filed by the Corporate Debtor. 45. After considering the various pleas of the parties, the Committee concluded as "the Committee after unanimously again consenting to the order passed on 26th May 2016 decided that IARC will continue its OTS dated 13th March, 2014 with M/s Eclat Industries Ltd. and Canara Bank will revalidate the loan passed on 8th October, 2015 till 31st March, 2018" as seen from page 252 of the affidavit-in-reply filed by the Corporate Debtor. 46. From the above, it is abundantly clear that the Corporate Debtor had acknowledged its obligation under OTS for an amount of Rs. 2.50 Crore as is evident from the order of the Hon'ble Division Bench which came ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Debtor agreed to its admitted liability and further agreed to pay the same, in terms of the decision taken by the Apex Committee pursuant to the judgment passed by the Hon'ble Division Bench. 51. In this context, we seek to rely on the law laid down in the judgment of the Hon'ble High Court of Punjab and Haryana at Chandigarh in Sumit Singla v. Kala Mandir Sarees and Jewellers, MANU/PH/1342/2022, wherein the Court distinguished between section 18 of the Limitation Act and section 25(3) of the Contract Act. The Hon'ble Court observed that "14.The distinction that can be discerned between an acknowledgment under Section 18 of the Limitation Act 1963 and a 'promise' within the meaning of Section 25(3) of the Contract Act is of great significance. While both have the effect of creating a fresh starting point of limitation, an 'acknowledgment' under the Limitation Act in order extend limitation must be made before expiry of period of limitation, whereas a 'promise' under Section 25(3) of the Contract Act to pay a debt even though barred by limitation would renew limitation. 15. In any case, both the said provisions highlight that a right of lender to re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade immediately as specified under section 13 of the Code read with regulation 6 of the Insolvency & Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. e. Mr. Avishek Gupta, registration number IBBI/IPA-003/IPN000135/ 2017-2018/11499, email: [email protected], is hereby appointed as Interim Resolution Professional (IRP) of the Corporate Debtor to carry out the functions as per the Code subject to submission of a valid Authorisation of Assignment in terms of regulation 7A of the Insolvency and Bankruptcy Board of India (Insolvency Professional) Regulations, 2016. The fee payable to IRP or the RP, as the case may be, shall be compliant with such Regulations, Circulars and Directions as may be issued by the Insolvency & Bankruptcy Board of India (IBBI). The IRP shall carry out his functions as contemplated by sections 15, 17, 18, 19, 20 and 21 of the Code. f. During the CIRP period, the management of the Corporate Debtor shall vest in the IRP or the RP, as the case may be, in terms of section 17 of the IBC. The officers and managers of the Corporate Debtor shall provide all documents in their possession and furnish ever ..... 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