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TMI Blog2024 (12) TMI 1246X X X X Extracts X X X X X X X X Extracts X X X X ..... the guidelines issued for the grant of benefit of the OTS scheme, which though cannot be claimed as a matter of right, because it is an arrangement, made under the guidelines issued by the Reserve Bank of India in order to carve out a middle, way for shortening the settlement of the dispute, but it is not as a matter of right. The Ld. Adjudicating Authority has observed that, the aforesaid authority in the matters of Bijnor Urban Co-Operative Bank Limited [ 2021 (12) TMI 669 - SUPREME COURT ], which deals with regards to the modalities to be adopted for sanctioning of the OTS, for settlement of a dispute is not an arrangement, which is available to a dishonest borrower. The defaulter, Corporate Debtor has not remitted the amount. It was contended that the date of declaration of the account has to be Non-Performing Asset (NPA) on 01.10.2012, would not be the actual date of determination of the limitation, because the same according to the Appellant was to be considered, from the date when the Corporate Debtor has acknowledged the dues - The Ld. Adjudicating Authority, observed that the application under Section 7 of the I B Code, has been filed on 19.07.2020, and that is being argu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have aimed to, lay down the project of the construction of a five-star hotel, which engaged an investment of capital, to the tune, of its estimated value of Rs.101.31 Crores. For the aforesaid purpose, the Corporate Debtor has approached the Financial Creditors, namely the State Bank of India, the State Bank of Hyderabad, and the Canara Bank, (the Appellant herein). Out of the aforesaid total amount sought for investment, the State Bank of India is said to have extended a financial assistance to the tune of Rs.40 Crores, Rs.10 Crores was extended by the SBH and Rs.30 Crores was said to have been extended by the Appellant (Canara Bank). While the project was being laid, the Corporate Debtor felt that the finances were falling short, and hence, the Corporate Debtor intended to avail of an additional credit facility due to the increased project cost, and accordingly the Corporate Debtor has sought a sanction of an additional term loan to the tune of Rs.25 Crores. 2. The Appellant self-submitted that, despite of the extension of the aforesaid assistance by each members of the consortium which included the Appellant also, the Corporate Debtor i.e, the respondent herein could not receiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of proceedings before the Debt Recovery Tribunal (DRT) on 18.08.2017, the Appellant bank is said to have sent a letter of demand on 29.08.2018 to the Corporate Debtor, for the remittance of Rs.30 Crores, besides a sum of Rs.9.78 Crores, which already stood paid and the balance of Rs.20.22 Crores, as it was said to be due to be paid to the Appellant on 01.03.2020. The Appellant herein is said to have, raised it as an additional demand of sum of Rs.10.28 Crores vide its letter of 29.9.2018, which was demanded to be made payable on or before 28.02.2019. The aforesaid correspondences, and more importantly the demand of 29.08.2018, is being taken as to be determining the default which is taken which is taken to have been committed when the notices were issued for raising a demand, by invocation of Section 7 of I B Code. 6. The appellant had come up with the case that, though the Corporate Debtor has acknowledged the amount due to be paid as per letter dated 29.08.2018 for the tune of Rs. 30 Crores, by the correspondence dated 30.10.2018, the Corporate Debtor has not remitted the amount due to be paid. And hence, the necessity arose for invocation of the proceeding under Section 7 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tcy Act 1993, by way of preferring of an appeal before Debt Recovery Appellate Tribunal (DRAT) being Appeal RA No. 23/2021/27, which was dismissed on 09.04.2021. Thus, being aggrieved against the two orders, settling the declaration of the non-performing assets, on the basis of the compromise decree of 03.01.2020, as arrived in the proceeding under Section 19 and which ultimately stood dismissed by the Judgment of the Appellate Authority on 09.04.2021. 10. It is not a dispute, that the Appellant had preferred Writ Petition before the High Court of Telangana, which was numbered as Writ Petition No. 14178/2021, and the same is still pending consideration. 11. In the writ petition thus preferred, before the High Court of Telangana, the Appellant who is a petitioner therein, had prayed for, the relief to the effect that, for granting a writ of certiorari, quashing the order passed by DRAT in regular appeal on 09.04.2021. And, quash the order passed in OA No. 3549/2017, on the file of the Debt Recovery Tribunal (DRT), Hyderabad and declared that the order of the Debt Recovery Tribunal (DRT) dated 03.01.2020, as well as the order of the Appellate Authority being contrary to the circulars ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ultimately emerge is, that, admittedly the default was pointed out by the consortium of the Financial Creditors was to be falling due w.e.f. 01.10.2012. It means that it was an admitted date of default, where the account of the Corporate Debtor was declared as to be Non-Performing Asset. There had been a proceeding under the Recovery of Debts and Bankruptcy Act 1993, which ultimately resulted in a compromise decree by an order of 03.01.2020, but then the question emerges for consideration, is that what would be the criteria to determine, as to what would be the date of default has to be, either 01.10.2012 or 03.01.2020, where the OTS/Compromise was in favour of the Financial Creditors was ultimately withdrawn in the meeting of the members of consortium on 04.02.2019. When these issues were taken up, the Ld. Adjudicating Authority, by the Impugned Judgment dated 28.02.2022 had rejected the application preferred under Section 7 of I B Code, by observing thereof, that when the proceedings under the Recovery of Debts and Bankruptcy Act 1993/Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act were being taken, the proceedings before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edgment made by the Corporate Debtor in the proceedings before the Debt Recovery Tribunal (DRT) and ultimately before the Debt Recovery Appellate Tribunal (DRAT) also. Thus, it was contended that the date of declaration of the account has to be Non-Performing Asset (NPA) on 01.10.2012, would not be the actual date of determination of the limitation, because the same according to the Appellant was to be considered, from the date when the Corporate Debtor has acknowledged the dues. 15. The Ld. Adjudicating Authority, observed that the application under Section 7 of the I B Code, has been filed on 19.07.2020, and that is being argued to be well within the limitation, determining the same to be with effect from the compromise decree of 03.01.2020. The Ld. Adjudicating Authority considered the aforesaid aspect and ultimately observed, that default in the case of the proceeding has to be reckoned from the date when the financial creditor had actually got the knowledge of the default having been committed, which in the instant case will be falling to be 01.10.2012 when the notices under Section 13 (2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security ..... X X X X Extracts X X X X X X X X Extracts X X X X
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