Ritusree Basu vs Punjab National Bank & Ors

Ritusree Basu ...Appellant

Versus

Punjab National Bank & Ors. ...Respondents

For Appellant: Shri Saurabh Jain and Shri Piyush Joshi, Advocates

For Respondents: None

ORDER

27.01.2020 Heard Counsel for the Appellant. This Appeal has been filed

against Impugned Order dated 13th December, 2019 passed by the

Adjudicating Authority (National Company Law Tribunal, Kolkata Bench,

Kolkata) in CP (IB) No.1139/KB/2018. Punjab National Bank filed the

Application under Section 7 of Insolvency and Bankruptcy Code, 2016 (IBC -

in short) against M/s. Hotel East Palace Pvt. Ltd. which has been admitted

and thus, the present Appeal by the Director/Shareholder.

2. It is stated that the Corporate Debtor had taken term loan and working

capital facility of Rs.15 Crores from the Punjab National Bank in July, 2012.

The learned Counsel states that the Bank filed Section 7 Application claiming

that the account of the Corporate Debtor has become NPA and the Bank had

decided to recall the entire loan granted. It appears that Demand Notice dated

14th January, 2017 was issued to the Corporate Debtor demanding

Rs.16,60,32,532/- which included interest upto 31st December, 2016. On 2

such basis, the Bank moved the Adjudicating Authority and the proceeding

was admitted.

3. The Application under Section 7 appears to have been filed in August,

2018.

4. The learned Counsel for Appellant states that during the pendency of

the Section 7 Application, the Bank had issued letter (Annexure A-5) on 4th

June, 2019 pointing out that the account had become NPA on 28th January,

2016 and whether the Appellant was interested in getting benefit of Special

One-time Settlement Scheme which had been issued. By another letter

(Annexure A-6) on 4th June, 2019, the Bank asked deposit of 10% of the OTS

amount in case the Appellant wanted to indicate willingness for OTS proposal.

Counsel states that the Appellant sent letter dated 03.07.2019 offering more

than 10%, which amount was accepted by the Bank. The letter states that

Corporate Debtor was in precarious position. It is stated that later, by letter

dated 15.07.2019 (Page No.272), the Bank informed as under:-

"Ref: Your OTS proposal dt. 03.07.2019 Dear Sir, Please refer to your letter dt. 03.07.2019 regarding your OTS offer of Rs.9.35 crore we like to inform that as per bank's OTS policy in your case minimum OTS offer of book outstanding can be considered. Therefore, you are requested to revise your offer and submit fresh request with 10% upfront.

Please note that no OTS proposal is pending with the bank."

5. The learned Counsel for Appellant states that the Bank should have

given respect to its earlier offer and the communication as at Annexure A-11

was not justified. Annexure A-12 shows Order of DRT dated 12.12.2019 that

Company Appeal (AT) (Ins) No.151 of 2020 3

the Bank had also initiated proceeding under the SARFAESI and the matter

was before DRT, which gave direction how to go about with the consideration

of OTS.

6. Having heard Counsel for the Appellant, although it appears that after

filing of the Section 7 Application, there were some developments between the

parties as mentioned above and the question of OTS was looked into by DRT

also, we find that those proceedings cannot be an obstruction for the

Adjudicating Authority to deal with Section 7 Application and the

Adjudicating Authority finding debt due and default and the application to be

complete, admitted the Application on 13th December, 2019. We do not find

that there is anything illegal in the Impugned Order which has been passed.

The Adjudicating Authority was required to examine the format and

annexures submitted by the Bank and when it found that the Application was

complete and there was debt and default, the Adjudicating was bound to

admit the same.

There is no reason to admit the Appeal. There is no merit.

We decline to admit the Appeal.

[Justice A.I.S. Cheema] Member (Judicial)

(Justice A.B. Singh) Member (Judicial)

[Kanthi Narahari] Member (Technical) /rs/md

Company Appeal (AT) (Ins) No.151 of 2020