Indian Overseas Bank vs Keshar Multiyarn Mill Limited

Balraj Joshi, Member (Technical)

This Court convened through video conferencing.

This Company Petition bearing no. CP(IB)/885(KB)/2019 under section 7 of the Insolvency and Bankruptcy Code, 2016 (Code) read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 has been filed by Indian Overseas Bank (PAN No.AAACI1223) (hereinafter referred to as the Financial Creditor), a body Corporate seeking to initiate Corporate Insolvency Resolution Process (CIRP) against Keshar Multiyarn Mill Limited (CIN No.U17120WB2007PLC115735) a corporate entity (hereinafter referred to as the Corporate Debtor) as the Corporate Debtor committed default in paying financial debt of Rs. 68,29,59,978.82/- (Rupees Sixty-eight Crore Twenty-Nine Lakh Fifty-Nine Thousand Nine Hundred and seventy-eight and Eighty-two paise Only). The date of filing of this petition is 19.06.2019.

It is the case of the Financial Creditor that at the request of the Corporate Debtor, they have sanctioned the credit facility of Rs.10.50 crores in respect of cash credit (H) of Rs.3.00Crores, in a term loan of Rs.6.00 crores, cash credit of 1.50 crores in the shape of a revolving letter of credit vide sanction letter dated 14.02.2008 .The copy of the sanction letter is placed at Annexure- C^{11.Page No.54} and the Board Resolution accepting the loan by the corporate debtor is given at Annexure-D^{22.Page No.64} The credit facility was secured by way of hypothecation^{33.Details given in part V, Form-I}/mortgage of land and factory along with fixed assets & current assets , Promissory notes, letters of hypothecation as well as lease deed of the land as per Annexure D-12^{44.Page No.}; Further the Directors the Corporate Debtor had ostensibly guaranteed the credit facilities on personal basis . The loan was to be repaid in 32 quarterly instalments starting from 01.04.2009. Thereafter the additional credit facilities have been extended from time to time which also have been similarly secured by way of Promissory notes, hypothecation etc. The details of these credit facilities and the instruments securing them are given in Annexure D to H-14 of the petition.

At the time of scheduled repayment, the account of the Corporate Debtor became irregular and was classified as a Non-performing Asset (NPA) on 21.12.2012. As the Corporate Debtor has defaulted in payment, hence the Company Petition has been filed against the corporate debtor. The date of default has been mentioned as 21.12.2012 in the Form -1 attached with the petition which was later corrected as 16.12.2013 in the Rejoinder Affidavit at page 20.

The said credit facilities were recalled by the financial creditor on 01.01.2015 asking for a sum of Rs. 31,93,40,094.94 which included interest till 31.12.2014. The demand notice is placed at Annexure I at page 391 of the petition.

In support of the petition, the petitioner has annexed the following documents to prove the existence of financial debt and evidence of default as per the requirement of Sec 7(3) of the Insolvency and Bankruptcy Code, 2016.

In support of the petition, the petitioner has cited following case laws to strengthen his petition through written notes:

Laxmi Pat Surana V. UOI

Sesh Nath Singh V. Baidyabati Sheoraphuli Co-operative

Asset Reconstruction Co. Ltd v. Bishal Jaiswal & Anr

Mahabir Cold Storage v. CIT

Bengal Silk Mills Co. v. Ismail Golam Hussain Arif

The Respondent has filed his reply-affidavit dated 05.11.2019 wherein the respondent has categorically denied and disputed various submissions by financial creditor save and except the matter of facts and matter of record, as perceived by him.

The respondent in his reply-affidavit submitted that the petitioner itself has stated that the account of the corporate debtor has been declared as NPA on and from 21.12.2012 although the petitioner has failed to adduce any documentary evidence to that effect and such statements render the instant petition barred by the laws of limitation and renders the petitioner disentitled to claim any relief under the IBC 2016 and reiterates in para 4 that the debts have been computed since 31.12.2014 in the petition before the Debts Recovery Tribunal (in short “DRT”), the instant petition under Sec-7 of IBC is time-barred. Moreover, the petitioner has relied on statements of accounts which show computation of debt till January 2015^{1010.Page no. 426-454} and such computations are also not relevant in view of the date of default as admitted by the petitioner.

The respondent has submitted that the petitioner has made the most frivolous and preposterous allegations that the guarantors of the corporate debtor have been declared as wilful defaulters and such allegations have been made without any cogent evidence to that effect. It has been further stated that CIBIL report (Annexure-L ) relied upon by the petitioner to substantiate such baseless and false claims is not even a legible copy from which anything can be deciphered and the petitioner is purportedly relying upon the said CIBIL report to prove its record of default with the information utility while pressing a petition under section 7 of the code.

The respondent has submitted that the instant petition is time barred and that the provisions of the Code cannot be used to breathe in a fresh lease of life to time barred debts and also that the proceedings under the IBC-2016 are not in the nature of the recovery proceedings which the petitioner has tried to institute.

The respondent has submitted that the instant petition under section 7 is malafide and filed for collateral purpose and is barred by law and should be dismissed in limine with exemplary cost.

In support of the reply, the respondent has cited following case laws to strengthen his reply -affidavit through written notes:

Innoventive Industries Limited v. ICICI Bank & Anr. (2018)1 SCC 407

Babulal Vardharji Gurjar v. Veer Gurjar Aluminium Industries Private Limited & Anr. (2020) 15 SCC 1;

Gaurav Hargovindbhai Dave v. Asset Reconstruction Company (India) Limited & Ors. (2019) 152 CLA 309 (SC)

Jadgish Prasad Sarda v. Allahabad Bank 2020 SCC On Line NCLAT 621)

B.K. Educational Services Private Limited v. Parag Gupta and Associates (2019) 11 SCC 633)

The Federal Bank Limited v. Uniworth Limited I.A. No. 1222/KB/2019 and I.A. (IB) No. 1508/KB/2019 in C.P. (IB) No. 277/KB/2019)

M/s. Reliance Asset Reconstruction Company Limited v. M/s. Hotel Poonja International Private Limited (Company Appeal (AT) (Ins) No. 1011 of 2019, upheld by the Hon’ble Supreme Court of India in (2021) 7 SCC 352)

The Financial creditor filed a rejoinder 11and save and except matter of records, denies all allegations, averments and statements contrary to records or borne out of records.

The financial Creditor refuted all the objections-in-reply of the corporate debtor while asserting, inter alia, that the Indian Overseas Bank declared the account of the corporate debtor as NPA on 16.12.2013 and this fact was mentioned also in the Demand notice issued under Section 13(2) of SARFAESI Act, [page 33 of the rejoinder] sent by Indian Overseas Bank dated 24.02.2014 which confirms the date of NPA.

The Financial creditor refutes the objections in reply-affidavit and says that the Corporate Debtor and its Guarantors are defaulters as per the relevant provisions and guidelines of the Reserve Bank of India (in short “RBI”) and the said default has been registered with the credit Information Bureau of India Limited (in short “CIBIL”) and marked as Annexure-L^{1212.Page no.455-459 of C.P(IB)885/KB/2019}.

The Financial creditor has further refuted the objections in reply-affidavit and says that the claim is not barred by the Law of Limitation as the corporate debtor has admitted its liability in their audited

¹¹ Rejoinder dated 16.12.2019 statement of Accounts from time to time and demand notice dated 01.01.2015 was issued by the Financial creditor to the Corporate Debtor recalling the entire loan along with interest for payment and the corporate debtor admitted its liability in various documents executed by them in favour of the Financial Creditor.

Further, on 07.02.2014 at NPA Recovery meeting held at financial creditors NBGM office(east), Kolkata, the corporate debtor had informed to the financial creditor that the corporate debtor was in the process of selling the unit and negotiations were going on for Rs.62 to 65 crore. The copy of the Minutes of the said NPA Recovery Meetings dated 07.02.2014 is annexed and marked as Annexure L-1^{1313.Page no.32 of rejoinder.}.

The financial creditor states that he was quite vigilant in their right and bonafidely initiated actions under the relevant provisions of the SARFAESI Act, 2002 and also been contesting the SARFAESI Application being S.A No.771/2014 filed by the corporate Debtor before the learned Debts Recovery-II, Kolkata on 19.06.2014 and the same is still pending for its final disposal and the financial creditor made an original Application being O.A No. 26/2015(Indian Overseas Bank v. M/s Keshar Multiyarn Mill Limited and ors.) under section 19 of the Recovery of Debts due to banks and financial Institutions Act,1993,before the learned DRT-I, Kolkata, on 22.01.2015. The said original Application is still pending before the Learned Tribunal. Accordingly, the period from 22.01.2015 to the date of its final adjudication of the said O.A., which is yet to be disposed of, are required to be excluded as per the provisions of section 14(2) of the Limitation Act,1963, in computing the limitation as provided under Article 137 of the Limitation Act,1963. Moreover, the relevant provisions of the IBC,2016 was enacted in the year 2016 and certain provisions of the code have come into force on 5.08.2016 and 19.08.2019. As such the said petition is well within the period of Limitation.

The financial creditor denies that Mr. Amit Kumar is not authorized to act as an authorized representative of the petitioner’s bank in terms of section 432 of the Companies Act,2013, read with Rule 2(6) of the NCLT Rules,2016 and reiterates that Mr. Amit Kumar is authorized to act as the authorized representative within the meaning of Rule 2(6) of the National company Law Tribunal Rules,2016 (in short “NCLT”) read with section 432 of the Companies Act,2013 and Rule 10 of the Insolvency and Bankruptcy (Application to Adjudicating Authority ) Rules, 2016 to make this affidavit on behalf of the petitioner and such statements have been corroborated with the contents of the authorization letter and Power of Attorney dated 04/08/2018 in its Board meeting dated 29/01/2018 relied upon by the petitioner and marked as Annexure-A ^{1414.Page no.48-51 of the petition.}

We have heard the learned counsel appearing on behalf of the Financial Creditor and the learned counsel appearing on behalf of the Corporate Debtor and perused the pleadings filed by the parties. In order to admit the application under Section -7 of the code following are the pre-requisites: (1) Existence of a financial debt (2) Whether the debt is due and payable (3) The date of default (4) Whether the petition is filed within the limitation period.

The sanctions letters by the Bank and documents executed by the corporate debtor as per the terms and conditions of the sanction letter(s) issued from time to time are on record. The Corporate Debtor has executed various loan and banking documents including consent-cum-authorisation letters signed by the authorized directors of the corporate debtor and submitting of the title deeds of the immovable property as also the hypothecation of the machinery and the inventory duly signed by the corporate debtor in favor of the financial creditor. From the foregoing it is clear that there was a financial contract between the financial creditor and the corporate debtor and the condition of the existence of the debt is therefore met with. A snapshot of various credit facilities is given on page 16-25 of the petition.

In regard to this being a financial debt which as per Section 5(8) of the Code would mean a debt along with interest and which is disbursed against the time value of money, one needs to see the certificates said to have been given under Section 2A (a) of the Bankers Book Evidence act 1891 (As amended) which are collectively put at Annexure K of the petition, which show various term loan and cash credit accounts wherein the interest has been booked to the account of the corporate debtor. Even though the said CIBIL report is in fact illegible, but it can be hazily discerned that even though the amount mentioned is different from the one being claimed by the financial creditor, the name of the corporate debtor has indeed been mentioned in the reports. Be that as it may, the conditions of existence of a financial debt are fulfilled.

The financial creditor vide his letter dated 24.02.2014 sent a Demand notice under 13(2) of SARFAESI act, which has been placed at page 33 of the rejoinder. Later the Financial creditor has initiated action under 13(4) of SARFAESI. This has been challenged by the corporate debtor by filing an application under Section (17) before the DRT in which it has been alleged the financial creditor has not shared the details of accounts with them (CD). Anyhow, except this demand notice of 24.02.2014, there is no correspondence put on record to prove that the payment of the loan and interest had fallen due, even though the financial creditor has stated in his rejoinder that he has on several occasions have given reminders to the corporate debtor. Be that as it may, the first sanction letter of 14.2.2008, does specify a time line for repayment of the first term loan in 32 quarterly instalments, which extends up to FY 2016-17. Now considering the Bankers Book entries placed at Annexure K Page 426-454 it is seen that accounts statements as presented do not show that the interest was not being serviced. Moreover, a new credit sanction advice placed at page 316 of the petition does not make any mention of the default of the previous credits and any such purported letter that may support the assertion of the financial creditor regarding issuances of repeated reminders to the corporate debtor. Evidently the financial creditor has not done a proper due diligence and has not placed the necessary documents which could show beyond doubt that the corporate debtor has either not paid or has neglected to pay.

The date of default mentioned in the Form-I was 21.12.2012. Upon a query by the AA, the FC has modified this date as 16.12.2013 by way of the rejoinder. No document in support of this aspect has been placed on record except a minute of meeting dated 07.02.14, which mentions of the meeting held to discuss the NPAs and ways to come out of it. However, what has been briefly recorded is the statement by the representative of the Corporate Debtor where he has made his intention of selling the unit known to the attendees. As such no date of default is discerned from the minutes. So, we hold that the financial credit has failed on this count too i.e., to provide any documentary evidence on record to support the assertion of the date of default as 16.12.2013.

As stated above, the date of default mentioning in Part- V of Form-I (Application to the Adjudicating Authority) was 21st December, 2012 which has been rectified by the petitioner by way of the rejoinder as 16.12.2013. Even though there is no document to support this assertion, still taking the case of the financial creditor at its highest and working out the date of default in light of the RBI Master Circular, the date of default becomes 16.09.2013. As per, sec. 137 of the Limitation Act which is the applicable section of the act in view of the judgment by Hon’ble SC in the matter of, B.K. Educational Services (P) Ltd. v. Parag Gupta & Associates, (2019) 11 SCC 633: (2018) 5 SCC (Civ) 528: 2018 SCC OnLine SC 1921 at page 664,

Now we have to deal with the contention of the Financial Creditor on the issue of stoppage of the limitation due to its filing of the application before DRT and thus trying to extend the limitation. It is appropriate here to cite here the judgment of Hon’ble NCLAT in the matter of Bimalkumar Manubhai Savalia vs. Bank of India and ors. Company Appeal (AT)(Insolvency) No. 1166 of 2019 wherein it has been inter-alia held as follows:

The matter of extension of limitation by taking recourse to section 18, of the limitation Act 1963 by virtue of the fact that the petitioner had acknowledged the debt in the minutes of meeting held on 07.02.2014 and thus the limitation should run from that date also does not hold water as far as the maintainability of the present petition on the issue of limitation is concerned, as it would extend the last date by which the applicant should have made an application before this Adjudicating Authority to 07.02.2017. Thus, from all angles this application is barred by limitation and is liable to be dismissed and so is ordered accordingly.

In view of the above factum CP(IB)885(KB)/2019 would stand dismissed. However, liberty is granted to the petitioner to pursue its rights and claims before other fora as available under the law.

In light of the above, the petition made by the Financial Creditor under Section 7 of the Code, seeking initiation of CIRP in respect of the corporate debtor with specific assertion of the date of default as 16.09.2013 and relying on the judgment of the Hon’ble Supreme Court, and NCLAT as stated above, the petition is dismissed.

6 C.P.(IB) No. 885/KB/2019 is accordingly dismissed.

The registry is directed to send e-mail copies of the order forthwith to all the parties and their Ld. Counsel for information and for taking necessary steps.

Certified Copy of this order may be issues, if applied for, upon compliance of all requisite formalities.