JUDGEMENT

ASHOK BHUSHAN, J. 1. This Appeal has been filed by the Financial Creditor challenging the Order dated 07th April, 2022 passed by the Adjudicating Authority (National Company Law Tribunal, Kolkata Bench, Kolkata) in CP (IB) No.

772/KB/2019 by which Application filed under Section 7 of the -2- Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as “The Code”) by the Appellant has been dismissed.

2. The brief facts of the case giving rise to this Appeal are:-

i.

On 30.11.1994, Industrial Development Bank of India wrote to Respondent informing that it agreed to subscribe to the Respondent’s secured non-convertible debentures aggregating to Rs. 500 Lakhs on private placement basis. ii.

IDBI and the Respondent executed a non-convertible debentures subscription agreement on 01.02.1995 of aggregate nominal value of Rs. 500 Lakhs. On 23.12.1998, IDBI and the Respondent executed a Rupee Term Loan agreement aggregating to Rs. 750 Lakhs. On 04.03.2004, the IDBI wrote to the Respondent intimating the Respondent that amount of the IDBI in the Loan have become due with interest accrued aggregating to Rs.

24,69,59,120/-. The Respondent was called upon to pay the amount within 15 days. On 29.09.2004, Central Government executed a Turst Deed to create the Stressed Assets Stabilization Fund, the Appellant, which was declared on 29.09.2004 as financial institution. On 04.12.2008, the Appellant executed a negotiated settlement with the Respondent whereby it agreed to accept the amount of Rs. 850 Lakhs in full and final settlement of Respondent’s dues. Amount of Rs. 850 Lakhs consisted cash portion of Rs. 750 Lakhs and 10 Lakhs equity shares with face value of Rs. 10 per share each in Delta International Limited. Negotiated settlement contained the other terms of settlement. The -3- Appellant modified the negotiated settlement vide letter dated 15.01.2009, 26.03.2009, 02.04.2009, 23.12.2009 and 14.10.2011. On 28.01.2011, Respondent pledged its share in favour of the Appellant. The Respondent made entire payment of cash component of 750 lakhs by 30th April, 2014. The Appellant had extended the payment of cash till 01st May, 2014. On 14th May, 2014, the Respondent requested the Appellant to provide the data which may be due from the Respondent to the Appellant. The Appellant vide letter dated 28th May, 2014 intimated that over due as on 01st April, 2014 is Rs. 1,92,769/-. iii.

On 11th July, 2014, the Appellant revoked the approved negotiated settlement. The letter mentions that in terms of settlement as modified from time to time Company was required to allot 10 lakhs equity shares with face value of Rs. 10 per share and buy back the share at a price giving minimum yield of 13 % per annum and company defaulted in complying with equity allotment and execution of buy back agreement, which was stated to be reason for cancelling the negotiated settlement. The Respondent wrote a letter dated 02nd July, 2015 to the Appellant informing that Respondent have already handed over 10 lakhs equity shares of each by one of promoter to the Appellant vide letter dated 28th January, 2011 along with share transfer deed for which no action has been taken.

On 03.10.2017, the Respondent again wrote to the Appellant proposing and submitted a proposal to buy back of shares of Rs. 1 Crore within 60 days of your approval and payment of interest -4- amounting to Rs. 271.69 lakhs and 13% yield on shares amounting to Rs. 117 Lakhs totaling Rs. 388.69 Lakhs to be paid in 24 equal monthly installments, the Appellant did not accept the proposal.

On 5th April, 2019, Section 7 Application was filed by the Appellant before the NCLT, Kolkata to which a Reply was filed by the Respondent, in the Reply filed by the Respondent, plea was taken that Application is barred by time. It was pleaded that under the negotiated settlement between the parties dated 04.12.2008, the Respondent has discharged its obligation by paying the entire cash component o