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TMI Blog2021 (8) TMI 1347X X X X Extracts X X X X X X X X Extracts X X X X ..... egotiating with the Bank by enhancing, its OTS proposal, however, Learned Counsel for the Financial Creditor categorically stated that it was under instructions from Application-Financial Creditor to pursue this application as all efforts of negotiated settlement of OTS had been rejected by Applicant-Financial Creditor. Hence, we proceed to hear the matter. 3. The facts, in brief, are that the Financial Creditor is one of the members of the consortium who lent money to the Corporate Debtor from time to time. The Corporate Debtor failed to pay the loan, hence, its account was classified as NPA. Thereafter, the proceedings under Section 7 of IBC, 2016 have been initiated in December, 2018. 4. Learned Counsel for the Financial Creditor appeared and Submitted that first. issue which was to be addressed was whether the application was filed within the limitation or not? In this regard, the Learned Counsel stated that it is not in dispute that the account of the Corporate Debtor had been classified as NPA on 29.10.2015 and application had been filed on 21.12.2018, hence, marginally beyond three years from the date of account being classified as NPA. However, such application is well ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l stated that this proposal was "without prejudice" and in the letter itself it had also been mentioned by the Corporate Debtor that it does not amount to acknowledgement of dues, hence, such OTS proposal could not be construed as an acknowledgement of debt. Learned Senior Counsel took second plea that no Board resolution had been filed by the Financial Creditor originally and when the validity of authority of the person who filed this application was challenged, in the rebuttal, the financial creditor had filed certain documents which were also not sufficient to establish that the person who filed this application was properly authorised. It was emphasized that in such circumstances, application was liable to be dismissed as not maintainable. He also drew our attention to the documents relied on by the Financial Creditor to counter this plea of the Corporate Debtor. Learned Senior Counsel further stated that the OTS proposal was for a definite amount and the Corporate Debtor was ready to pay the same even as on date, hence, only to this extent the effect of OTS proposal was to be taken cognizance. 6. In the rejoinder, Learned 'Counsel 'for the Financial Creditor stated that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in writing signed by the party against whom such property or right is claimed, or by any person 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 (1 of 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 pean 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. 8. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plea by the party liable to make the payment. The Hon'ble Supreme Court earlier also in the case of Tarapore & Company vs Cochin Shipyard Ltd. Cochin & Anr vide order dated 06.03.1984 has also held so. Apart from the above two decisions, there are other judicial precedents as well which are against this plea taken by the Corporate Debtor. As regard to second aspect raised by the. Corporate Debtor, we have gone through the contents of OTS proposal wherein company, in the last para, has categorically stated that this OTS proposal is best possible resolution considering the current situation of the company and the promoters and it is requested to accept the same and approve accordingly. It has also been mentioned that they have committed themselves to comply with the terms of the proposal, hence, picking one substance from the proposal cannot override the whole context and intent of the Corporate Debtor. Accordingly, this contention is also rejected. Before leaving, we may also point out that in view of this OTS proposal we have not gone into the aspect of such liability appearing in the balance sheet of the' Corporate Debtor for sated years which would certainly extend the limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Processional to act as IRP. In our opinion, application is otherwise complete and defect free. Liability to pay exceeds the threshold limit for initiation proceedings under Section 7 of IBC, 2016, hence, we admit this application and order as under: ORDER 1. Corporate Debtor M/s. Doshion Private Limited is admitted in Corporate Insolvency Resolution Process under Section 7 of Insolvency and Bankruptcy Code, 2016. 2. We appoint Mr. Ramchandra Dallaram Choudhary, Registration No. IBBI/IPA-001/IPP00157/2017-2018/10326, having address at: 9- C, Vardan Complex, Near Vimal House, Lakhudi Citcile, Navrangpura, Ahmedabad-380014, under section 13(1) (c) of the IB Code as IRP. 3. That the Moratorium under Section 14 of the Code shall come to effect from 17.02.2021 till the completion of Corporate Insolvency Resolution Process or until this: Bench approves. the Resolution Plan under Sub- Section (1) of Section 31 or passes an order for liquidation of Corporate Debtor under Section 33, as the case may be. 4. That the Adjudicating Authority hereby prohibits the institution of suits or continuation of pending suit or proceedings against the Corporate Debtor including execu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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