NATIONAL COMPANY LAW TRIBUNAL

COURT-V, MUMBAI BENCH

208. IA/1234/2024 C.P. (IB)/939(MB)2023

IN THE MATTER OF

Canara Bank … Petitioner

Vs

Nishta Mall Management Company Private Limited … Respondent

U/s 7 of the Insolvency and Bankruptcy Code, 2016

Order Delivered on 09.08.2024

CORAM:

MS. REETA KOHLI MS. MADHU SINHA

MEMBER (J) MEMBER (T)

Appearance through VC/Physical/Hybrid Mode:

For the Petitioner: Adv. Zaman Ali (PH)

For the Respondent in IA 1234/2024: Adv. Malhar Zatakia (PH)

__________________________________________________________

ORDER sanction of Term Loan- I, amounting Rs. 200 Cr. which was sanctioned vide letter dated 19/05/2014, subject to terms and conditions which were accepted by the Corporate Debtor by passing a board resolution on 13/06/2014. Pursuant to sanction of Term Loan- I, Corporate Debtor executed Term Loan agreement dated 20/06/2014 along with all other requisite necessary documents.

1. The present I.A. has been preferred by Canara Bank. The payers in the present

I.A. is to allow the applicant to carry out the necessary amendment in Part-IV with respect to the date of default from 25/09/2020 to 31/03/2022 and to take on

record the enclosed exhibits.

2. The case of the applicant is that the Company Petition was filed against the

Corporate Debtor for committing default of 156,30,07,785.18 Cr. The Applicant submitted that the Corporate Debtor had approached the Applicant Bank for

3. The case of the Applicant further is that Corporate Debtor requested for a further loan. The request of the Corporate Debtor was accepted by the Applicant Bank and Term Loan- II was sanctioned on 07/03/2015 and the Board resolution with respect to the same is dated 12/03/2015. The Term Loan Agreement was executed by Corporate Debtor on 18/03/2015 along with all necessary and requisite documents.

4. The case of the Applicant further is that the Corporate Debtor started defaulting in making the payments from September-2020 and thus was declared NPA on 24/12/2020. The Applicant further submits that in view of the RBI Circular dated 06/08/2020 for providing relief to the Stressed Assets by way of restructuring the loan account under the OTR scheme, a communication dated 27/09/2020 seeking realignment of debt was sent to the Applicant on the basis of which afresh OTR Agreement dated 02/06/2021 was executed by Corporate Debtor in favour of the Applicant.

5. The case of the Applicant further is that the Corporate Debtor initially made payment as per the OTR Agreement, but from 31/03/2022 once again started committing default. The communication to that effect was issued to Corporate Debtor on 01/04/2022 intimating the date of default as 31/03/2022, seeking remittance of necessary funds to clear the overdue amount in six accounts mentioned so as to enable the Corporate Debtor to come out of the default. The Corporate Debtor failed to discharge his liabilities and thus the Applicant issued a recall notice on 08/07/2022.

6. The case of the Applicant is that in view of the fact that Corporate Debtor failed to comply with OTR and committed default from 31/03/2022, thus, the date of default in Part-IV of the Company Petition be allowed to be amended and changed from 25/09/2020 to 31/03/2022.

7. To support his contentions, the Ld. Counsel for the Applicant relied upon Dena Bank (Now Bank of Baroda) Vs. C. Shivakumar Reddy and Anr. [2021] 8 S.C.R. 1061 wherein the Hon’ble Supreme Court has been pleased to hold as under:

“There is no bar in law to the amendment of pleadings in an application under Section 7 of the IBC, or to the filing of additional documents, apart from those initially filed along with application under Section 7 of the IBC in Form-1. In the absence of any express provision which either prohibits or sets a time limit for filing of additional documents.”

8. The Ld. Counsel also referred to the judgment of the Hon’ble NCLAT in 2023 SCC OnLine NCLAT 670, which has facts very similar to that of the case in hand.

The Hon’ble NCLAT has held as under:

“Section 1