NATIONAL COMPANY LAW TRIBUNAL

NEW DELHI BENCH (COURT-II)

Company Petition No. (IB)-297(ND)/2023

IN THE MATTER OF:

Indian Bank
(A Government of India Enterprise)
Stressed Assets Management,
Large Branch, 17, Parliament
Street, New Delhi-110001 … Applicant /Financial Creditor

VERSUS

M/s Ansal Properties and Infrastructure Limited

Office: - 115 Ansal Bhawan,
16 KG Marg, New Delhi - 110001 … Respondent

Section: 7 of IBC, 2016

Order Delivered on: 20.10.2023

CORAM

SH. ASHOK KUMAR BHARDWAJ, HON’BLE MEMBER (J)

SH. L. N. GUPTA, HON’BLE MEMBER (T)

PRESENT:

For the Applicant : Adv. Anant Gautam, Adv. Anani Achumi

For the Respondent : Adv. Malak Bhatt, Adv. Neena Nagpal,
Adv. Mandeep Singh, Adv. Samriddhi

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 ORDER

PER: SH. L. N. GUPTA, MEMBER (J)

Indian Bank (for brevity, the “Applicant”/“Applicant Bank”) has filed

the present petition under Section 7 of the Insolvency and Bankruptcy Code,

2016 (for brevity, the “IBC, 2016”) read with Rule 4 of the Insolvency and

Bankruptcy (Application to Adjudicating Authority) Rules, 2016 with a prayer

to initiate the Corporate Insolvency Resolution Process against M/s Ansal

Properties and Infrastructure Limited (for brevity, the “Respondent”).

2. The Respondent namely, M/s Ansal Properties and Infrastructure

Limited is a Company incorporated on 30.06.1967 with CIN L45101DL1967

PLC004759 under the provisions of the Companies Act, 1956 having its

registered office at 115 Ansal Bhawan, 16-KG Marg, New Delhi - 110001,

which is situated within the jurisdiction of this Tribunal. The Authorized

Share Capital of the Respondent Company is Rs.1,50,00,00,000/- and Paid-

up Share Capital of the Company is Rs.78,70,24,000/- as per Master Data.

3. It is stated by the Applicant that the Applicant Bank sanctioned a Term

Loan of Rs.150 Crore to the Respondent on 10.09.2013 for financing the

proposed project of the Company viz., Serene Residency Group Housing

Project at Sector ETA II, Greater Noida at an estimated Project cost of

Rs.528 Crore under sole banking with an interest rate of 4.50% (floating)

including Base rate. The Respondent agreed to pay back the term Loan to the

Applicant Bank in 16 equal Quarter installments of Rs.9.39 Crore each

starting from the January-March 2015 quarter. It is further stated that the

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said term loan was sanctioned for Review-Cum-Renewal loan of Rs.140.62

Crore vide sanction letter dated 28.09.2015 with the interest rate set at 4.50%

including base rate as existing (floating). The Revised Repayment term stated

that the installment already paid for the quarter ending March 2015 should

be treated as advance recovery for March 2016 quarter and the remaining 15

equal quarterly installments of Rs.9.38 Crore each will be paid by June 2016.

4. It is pertinent to mention that the Respondent vide Demand Promissory

Note dated 28.11.2013 acknowledged the debt of Rs.1,50,00,00,000/- with

interest. On failure to abide by the terms of Sanction, the Applicant Bank sent

various reminders to the Respondent for regularizing the account but to no

avail. The Respondent defaulted in making repayments and the account

slipped into NPA on 12.04.2017. Thereafter, a Notice dated 19.05.2017 was

issued under Section 13 (2) of the SARFAESI Act, 2002 in respect of the

outstanding dues of Rs.119,29,08,589/- payable by the borrowers.

Furthermore, the Applicant Bank issued Possession Notice (for immovable

Property) dated 22.09.2017 under section 13 (4) of the SARFAESI Act stating

that the Applicant had taken possession of project land and construction

thereon at plot no. GH-01, situated in sector ETA-II, option-3, Greater Noida,

District Gautam Budh Nagar (Total Area 52774.146 Sq. Meters.), Project

Serene Residency Group Housing Project.

5. The Applicant Bank sought recourse under Section 19 of the Recovery

of Debts due to the Bank and Financial Institutions Act, 1993 with DRT-II,

Delhi, vide O.A No. 389/2018 titled as “Indian Bank (Allahabad Bank) Versus

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Ansal Properties Infrastructure Ltd and Ors.” filed on 27.03.2018 which is still

pending before the Ld. DRT.

6. On 09.06.2021, the Respondent passed a Board Resolution, whereby

the Board of Directors authorized to provide NOC to the Applicant Bank for

One Time Settlement (OTS) through Asset Reconstruction Company, MIS

Dicky Alternative Investment Trust against the securities given on the

Respondent’s behalf to the Applicant Bank for securing the loan facility of

Rs.150 Crores. Accordingly, the Respondent vide their letter dated 06.07.2021

offered Rs.42.50 Crore towards One Time Settlement to the Applicant Bank

and deposited Rs.4.25 Crores as upfront amount in no lien account whereby

the Applicant Bank returned the proposed OTS vide letter dated 15.11.2021.

Thereafter, the Respondent sent a Revised OTS Proposal vide letter dated

27.04.2022 whereby the earlier OTS proposal of Rs.42.50 Crores was revised

to Rs.54.00 Crores. The Applicant Bank vide letter dated 10.06.2022 also

rejected the revised OTS proposal with a request to improve the OTS offer.

7. Aggrieved by the default of dues committed and failure to take any

serious steps to clear the dues, the Applicant Bank issued notice dated

18.07.2022 to the Respondent regarding the initiation of a proceeding under

the IBC 2016 with a final opportunity to clear the default amount of

Rs.2,01,78,08,222.25/- along with interest at contracted rate w.e.f.

18.07.2022 till the date of payment before 01.08.2022.

8. On 25.08.2022, the Respondent sent a revised OTS proposal of Rs.56

Crores. In response, the Applicant Bank declined the said revised OTS

proposal of Rs.56 Crores vide its letter dated 15.11.2022.

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9. The particulars of the unpaid financial debt claimed and the date of

default is mentioned in Part IV of the application, which is reproduced below:

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10. Evidently, as per Part IV of the application, the Applicant Bank has

claimed the unpaid financial debt of Rs.2,57,77,22,173.50. Further, the

Applicant Bank has relied on 12.04.2017 as the date of default.

11. The Applicant has relied upon the following documents to prove the

existence of the financial debt -

i) Copy of the Sanction Letter dated 10.09.2013

ii) Term Loan Agreement dated 28.11.2013,

iii) Escrow Agreement Dated 28.11.2013,

iv) General Letter of Hypothecation dated 28.11.2013,

v) Declaration by Mortgagor on Affidavit dated 28.11.2013,

vi) Declaration by the borrower- Mortgagor on Affidavit dated

28.03.2013,

viii) Agreement of Personal Guarantee of Mr. Sushil Ansal dated

28.11.2013,

ix) Agreement of Personal Guarantee of Mr. Pranav Ansal dated

28.11.2013,

x) Demand Promissory Note dated 28.11.2013 for Rs.150.00 Cr

Letter of Mortgage Confirming Deposit of Title Deeds dated
29.11.2013.

xi) Declaration by the Borrower-Mortgagor on Affidavit.

12. Based on the aforesaid documents and facts reproduced earlier, the

Applicant has prayed for the initiation of CIRP against the Respondent.

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13. On issuance of the notice, the Respondent filed its reply and stated that

the Applicant itself states the date of default as the date when the Respondent

slipped into NPA, i.e., 12.04.2017. The Hon’ble Supreme Court in the case of

“Gaurav Hargovindbhai Dave v. Asset Reconstruction Company (India) Ltd. &

Anr.” [2019] 10 SCC 572 held that when the date of default was specifically

stated by the Applicant to be the date of NPA, the date of default for the

purpose of limitation under the Code commences from the date of NPA only.

The Respondent has further stated that the Hon’ble Supreme Court had

affirmed the same in the case of “Babulal Vardharji Gurjar v. Veer Gurjar

Aluminium Industries Pvt. Ltd. & Anr.” [2020] 12 SCR 368. In view of the

aforesaid judgments, the Respondent has contended that the present

Application, not filed by the Applicant within the period of 03 years from the

date of default, is barred by limitation.

14. The next objection raised by the Respondent is that the present

application has been filed for the purpose of recovery and not for the resolution

of the Respondent.

15. Further, the Respondent has stated that this Adjudicating Authority

had initiated the Corporate Insolvency and Resolution Proceedings (CIRP) and

imposed moratorium under Section 14 of the Code against the Respondent in

the matter of “Bibhuti Bhushan & Ors v. M/s Ansal Properties and

Infrastructure Limited” and appointed an IRP to take over the management of

the Respondent.

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16. We heard the submissions made by both parties and perused the

documents and written submissions placed on record. Before adjudicating the

application on merits, since the main contention of the Respondent is that the

Application being not filed by the Applicant within the period of 03 years from

the date of default, is barred by limitation, we would like to examine whether

the present application is barred by limitation.

17. From a perusal of the record, it is seen that the Applicant has relied on

the date of NPA i.e., 12.04.2017 as the date of default. The Applicant in its

written submissions has contended that the limitation is extended by virtue

of part-payments and OTS proposals made by the Applicant, the details of

which, as brought on record by the Applicant, are reproduced below:

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18. We would, therefore, like to examine the aforesaid contention of the

Applicant Bank. Accordingly, we refer to the Statements of Accounts filed by

the Applicant Bank from 12.04.2017 and the OTS Proposals made by the

Respondent with the Applicant Bank, which read thus:

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19. From the Statement of Accounts (ibid), it is seen that the Applicant has

made a number of part-payments to the Applicant Bank. However, it is noticed

that the last part-payment of Rs. 5,00,000/- was made by the Respondent to

the Applicant Bank on 06.12.2019. Now, we refer to the OTS proposal dated

06.07.2021 made by the Respondent, which reads thus:

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20. From a perusal of the aforesaid documents, it is clearly seen that the

last part-payment of Rs.5,00,000/- was made by the Respondent on

06.12.2019, which extends the period of limitation for another 03 years from

06.12.2019. Further, the OTS proposal made by the Respondent on

06.07.2021 would also extend the period of limitation for another period of 03

years from 06.07.2021. Since the present application has been filed by the

Applicant Bank on 22.04.2023 i.e., within 03 years from 06.07.2021,

therefore, we find that the present Application is not barred by Limitation.

21. Hence, we would like to proceed ahead and examine the Application on

its merits. It is contended by the Respondent that the present Application has

been filed for the purpose of recovery and not for seeking resolution. It is stated

by the Respondent that the Applicant has also taken steps under the

SARFAESI Act 2002 and has also filed an OA under RDDBFI Act for recovery.

In our considered view, filing of a recovery proceeding before DRT or initiating

a SARFAESI Proceeding is no bar to filing a Section 7 petition and mere

pendency of SARFAESI/ RDDBFI proceedings cannot be an indicator that the

present Section 7 application under IBC 2016 has been filed with an intention

other than seeking resolution of the Corporate Debtor.

22. Another objection taken by the Respondent is that the present

proceedings are barred by the Moratorium enforced under Section 14(1) of IBC

2016 by virtue of ongoing CIRP in the matter of “Bibhuti Bhushan & Ors. v.

M/s Ansal Properties & Infrastructure Limited”. Per contra, it is stated by the

Applicant Bank that the Respondent, having taken the above stand, itself has

stated that the Hon’ble NCLAT vide order dated 13.01.2023 in CA (AT) (I) No.

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41 of 2023 has clarified that the said CIR proceedings are confined to “Fernhill

Project” situated at District Gurgaon.

23. In order to examine the contention of both parties, we would like to visit

the order dated 13.01.2023 passed by the Hon’ble NCLAT in the matter of “Ajai

Kumar Gupta & Anr. vs. Bibhuti Bhushan Biswas & Ors.” in Company Appeal

(AT) (Insolvency) No. 41 of 2023, which reads thus:

“13.01.2023: Learned counsel for the Appellant submits that

the Adjudicating Authority had on an application under Section
7 by the allottees of one project Fernhill situated in Section-91,
Gurgaon, Manesar, Haryana has initiated CIRP process against
the Corporate Debtor. It is submitted that the Corporate Debtor
has several projects and the Appellants are allottees in two
projects situated at Lucknow, State of Uttar Pradesh. It is
submitted that the Applicant allottees being only concerned with
Fernhill project CIRP ought to have been confined to Fernhill
project only and projects in other States ought not to have been
included. Submission needs scrutiny.

Issue notice. Requisites alongwith process fee be filed within

three days. Respondents may file Reply within two weeks.
Rejoinder be filed within two weeks thereafter.

List this Appeal on 28.02.2023.

We provide that the order of Adjudicating Authority

admitting Section 7 application shall confine to ‘Fernhill
project’ situated at District Gurgaon.”
(Emphasis Added)

24. From the order of the Hon’ble NCLAT (supra), it is seen that the CIRP of

the Respondent/CD has been confined to “…..‘Fernhill Project’ situated at

District Gurgaon” only. In other words, the Moratorium under Section 14(1),

which is a consequence of the admission of a Corporate Debtor into CIRP

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under Section 7 or 9 of IBC 2016, will ipso facto apply to the Respondent with

respect to the “Fernhill Project” situated at Gurgaon only.

25. In the instant case, the “default” claimed by the Applicant Bank relates

to the “unpaid financial debt” of Rs. 257,77,22,173.50/- relating to the term

loan that was taken by the Respondent/Corporate Debtor for financing the

“Serene Residency Group Housing Project at Sector ETA II, Greater Noida”,

which is an entirely distinct project from the “Fernhill Project”.

26. It is in the backdrop mentioned from Para 22 onwards, this Adjudicating

vide order dated 18.09.2023 had sought the following clarifications from the

Applicant/ Indian Bank:

“(i) Whether there is any agreement between the bank and the CD
to permit the latter to utilize the funds released under the Facilities
for the project “Serene Residency Group Housing Project at Sector
ETA II, Greater Noida” only;

OR

Whether the CD has been permitted to utilize the funds released

under the Facilities for projects other than “Serene Residency Group
Housing Project at Sector ETA II, Greater Noida

(ii) Whether a separate bank account has been opened by CD and

maintained for the Project “Serene Residency Group Housing
Project at Sector ETA II, Greater Noida”, which is funded by the
applicant herein

(iii) Whether the Security Interest created by the Bank is over the
properties belonging to the Project “Serene Residency Group
Housing Project at Sector ETA II, Greater Noida” only or the Security

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 interest has been created over the properties belonging to other
projects as well.”

27. In response to the queries (ibid), the Applicant/Indian Bank has filed its

Affidavit dated 25.09.2023 stating the following:

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28. Similarly, the following clarifications were sought from the Respondent:

“(i) The total number of units planned, total number of units

constructed, and total number of units allotted in the Project
“Serene Residency Group Housing Project at Sector ETA II, Greater
Noida” as per the latest report filed with RERA Gurgaon, and as on
date.

(ii) Number of units though allotted but the physical possession not
delivered to the allotees as on date. In other words, the number of
units/allottees, in whose cases the Corporate Debtor has defaulted
in handing over the possession within the stipulated time as well
as on the date.

(iii) Whether, a separate bank account and books of accounts have

been opened and maintained by the CD for the Project “Serene
Residency Group Housing Project at Sector ETA II, Greater Noida”.

(iv) What is the present updated status of the ongoing CIR process
for the “Fernhill Project”.

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29. The Respondent too has filed its Affidavit dated 26.09.2023 stating the

following:

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30. From the bare perusal of the Affidavits (ibid) filed by both the parties,

the following position emerges:

i. Respondent has not been allowed to utilize the proceeds

disbursed by the Applicant Bank for any purpose other than for

the project “Serene Residency Group Housing Project at Sector

ETA II, Greater Noida”.

ii. Separate Bank Accounts have been opened and maintained for

the said Project.

iii. Security Interest has been created by the Applicant Bank over

the Assets (project land, structure thereon, movable assets, etc)

relating to “Serene Residency Group Housing Project at Sector

ETA II, Greater Noida” of the Corporate Debtor only.

iv. The Respondent Company has committed default towards 773

allottees of the said project in timely handing over the

possession of flats/units.

31. Since in the instant case, the debt and default pertains to the Project

“Serene Residency Group Housing Project at Sector ETA II, Greater Noida”

only and separate Books of Accounts and Bank Accounts are maintained for

the aforesaid Project, deriving support from the view taken by Hon’ble NCLAT

in Company Appeal (AT) (Insolvency) No. 41/2023, we are of the view that the

CIR Process should be initiated in respect of Project “Serene Residency Group

Housing Project at Sector ETA II, Greater Noida” only of the Corporate Debtor.

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32. In the given facts and circumstances, the present Petition being

complete and the Applicant/Financial Creditor having established the default

on the part of the respondent in making payment of its financial debt of an

amount being above the minimum threshold limit, the present Petition is

admitted in terms of Section 7(5) of the IBC qua the “Serene Residency

Group Housing Project at Sector ETA II, Greater Noida” and accordingly,

Moratorium is declared in terms of Section 14 of the Code in respect of

the “Serene Residency Group Housing Project at Sector ETA II, Greater

Noida” of the Corporate Debtor. As a necessary consequence of the

moratorium in terms of Section 14(1) (a), (b), (c) & (d), the following

prohibitions are imposed in respect of the Project “Serene Residency Group

Housing Project at Sector ETA II, Greater Noida” of the Corporate Debtor:

“(a) The institution of suits or continuation of pending suits or

proceedings against the corporate debtor including execution of
any judgment, decree or order in any court of law, tribunal,
arbitration panel or other authority in respect of “Serene
Residency Group Housing Project at Sector ETA II, Greater Noida”;

(b) Transferring, encumbering, alienating or disposing of by the

corporate debtor any of its assets or any legal right or beneficial
interest therein in respect of “Serene Residency Group Housing
Project at Sector ETA II, Greater Noida”;

(c) Any action to foreclose, recover or enforce any security interest

created by the corporate debtor in respect of its property including
any action under the Securitization and Reconstruction of
Financial Assets and Enforcement of Security Interest Act, 2002
in respect of “Serene Residency Group Housing Project at Sector
ETA II, Greater Noida”;

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 (d) The recovery of any property by an owner or lessor, where such
property is occupied by or in the possession of the corporate
debtor in respect of “Serene Residency Group Housing Project at
Sector ETA II, Greater Noida”.

33. As proposed by the Applicant, this Bench appoints Mr. Navneet Kumar

Gupta as IRP having Registration No. IBBI/IPA-001/IP-P00001/2016-2017/

10009, Email id: <[email protected]> subject to the condition

that no disciplinary proceeding is pending against the IRP and disclosures as

required under IBBI Regulations, 2016 are made by him within a period of

one week from this Order. This Adjudicating Authority further orders that:

“Mr. Navneet Kumar Gupta, E-mail id: <navneet@minervare

solutions.com> as IRP having Registration No. IBBI/IPA-001/IP-
P00001/2016-2017/10009 is directed to take charge of the CIRP
of the Respondent in respect of “Serene Residency Group
Housing Project at Sector ETA II, Greater Noida” with immediate
effect. The IRP is directed to take the steps as mandated under
the IBC specifically under Section 15, 17, 18, 20 and 21 of IBC,
2016.

34. The Applicant is directed to deposit Rs.10,00,000/- (Ten Lakhs) only

with the IRP to meet the immediate expenses. The amount, however, will be

subject to adjustment by the Committee of Creditors as accounted for by the

Interim Resolution Professional and shall be paid back to the Applicant.

35. It is made clear that our observations, findings and order in this matter

are confined to “Serene Residency Group Housing Project at Sector ETA II,

Greater Noida” only.

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36. A copy of this Order shall immediately be communicated by all modes

including e-mail by the Registry/Court Officer of this Tribunal to the

Applicant/Financial Creditor, the Respondent/Corporate Debtor, and the IRP

mentioned above.

37. In addition, a copy of the Order shall also be forwarded by the

Registry/Court Officer of this Tribunal to the IBBI for their records.

Sd/- Sd/-
(L. N. GUPTA) (ASHOK KUMAR BHARDWAJ)
MEMBER (T) MEMBER (J)

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