IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
THURSDAY, THE 9TH DAY OF JUNE 2022 / 19TH JYAISHTA, 1944
WP(C) NO. 18247 OF 2022
PETITIONER:
KUMARKOM AQUA SERENE PVT LTD.
REPRESENTED BY ITS MANAGING DIRECTOR RAJEEV V.K., AGED 53
YEARS, SON OF KUNJUKUNJU, VETTOOR, 4/125, KUDAVACHOOR P.O.,
KOTTAYAM-686 144, RESIDING AT VETTOOR HOUSE, 4/125,
ACHINAKOM, KUDAVACHOOR P.O., VAIKOM TALUK, KOTTAYAM-686
144., PIN - 686144
BY ADVS.
P.B.SAHASRANAMAN
T.S.HARIKUMAR
G.N.DEEPA
RESPONDENT:
KERALA STATE INDUSTRIAL DEVELOPMENT CORPORATION LIMITED
KSIDC, KERALA STATE INDUSTRIAL DEVELOPMENT CORPORATION,
REPRESENTED BY ITS MANAGING DIRECTOR, T.C. XI/266, KESTON
ROAD, KOWDIAR,
THIRUVANANTHAPURAM-695 003., PIN - 695003
BY ADV. P.U.SHAILAJAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
09.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 18247 OF 2022
2
JUDGMENT
Dated this the 09th day of June, 2022 The petitioner committed default in repayment of the loan availed from the respondent Corporation. In spite of being provided opportunity to settle the loan account by availing One Time Settlement (OTS) facility, the petitioner was not able to remit the amount and was forced to approach this Court in W.P(C).No.8230 of 2022. That writ petition was disposed of by Ext.P1 judgment, permitting the petitioner to deposit 10% of the OTS amount, and directing the respondent to consider his application for OTS in accordance with law and Rules governing OTS Schemes. This writ petition is filed stating that, in compliance of Ext.P1 judgment, the petitioner remitted 10% of the amount due under the OTS. In the meanwhile, the respondent initiated proceedings under the Insolvency and Bankruptcy Code (IBC) before the National Company Law Tribunal (NCLT), WP(C) NO. 18247 OF 2022 3 Kochi. The matter now stands posted for orders on the D Form submitted by the respondent.
2. Learned Counsel for the petitioner submitted that the petitioner's request for grant of OTS is being placed in the Board Meeting of the respondent Corporation scheduled to be held on 28.06.2022. In the meanwhile, if the NCLT passes an order based on the D Form submitted, the bank accounts and activities of the petitioner will come to a stand still. It is therefore prayed that, till the request for OTS is considered in accordance with the direction in Ext.P1 judgment, proceedings before the NCLT may be directed to be kept on hold.
3. Learned Standing Counsel for the respondent submitted that the petitioner is a chronic defaulter and had failed to meet the commitments, despite the benefit of OTS being granted. Under such circumstances, the respondent was constrained to approach the NCLT and the petitioner cannot seek deferment of such proceedings at this belated stage. It is also pointed out that the OTS period is over and WP(C) NO. 18247 OF 2022 4 an amount of Rs.19.88 crores is in arrears as on 31.03.2022.
4. By Ext.P1 judgment, this Court had permitted the petitioner to remit 10% of the OTS amount and had directed the respondent to consider petitioner's application for OTS, if such remittance is made. The petitioner asserts that the direction in Ext.P1 is complied with and the Board of the Corporation is willing to consider his request for OTS.
5. Indisputably, the petitioner's request for OTS is being considered in the Board meeting of the respondent scheduled to be held on 28.06.2022. If so, it is only appropriate to defer the proceedings before the NCLT till such time, since orders passed by the NCLT in the meanwhile may substantially prejudice the interest of the petitioner and affect the decision to be taken by the Board.
In such circumstances, the writ petition is disposed of, directing the Board of the respondent Corporation to take a decision on the request for OTS submitted by the petitioner in the meeting scheduled WP(C) NO. 18247 OF 2022 5 on 28.06.2022. The decisions, if any, taken by the NCLT in the meanwhile, shall not be implemented till 28.06.2022.
Sd/-
V.G.ARUN JUDGE NB/9-6 WP(C) NO. 18247 OF 2022 6 APPENDIX OF WP(C) 18247/2022 PETITIONER'S EXHIBITS EXHIBIT P1 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C)NO. 8230 OF 2022, DATED 28-03-2022 EXHIBIT P2 TRUE SCANNED COPY OF THE DD TAKEN IN THE NAME OF THE RESPONDENT DATED 30-03-2022 EXHIBIT P3 TRUE COPY OF THE PROCEEDINGS OF THE NATIONAL COMPANY LAW TRIBUNAL, KOCHI BENCH (NCLT) IN CP(IB)/22/KOB/2022 DATED 01-06-2022 RESPONDENT'S EXHIBITS:
ANNEXURE R1 TRUE COPY OF THE CIRCULAR NO.KSIDC/319BM/2020/474 DATED 19.11.2020 REGARDING THE COVID OTS AMNESTY SCHEME ANNEXURE R2 TRUE COPY OF THE LETTER NO.KSIDC/TVM/SCYS/320BM/2249 DATED 11.02.2021 INTIMATING ABOUT THE OTS SANCTION TO THE PETITIONER ANNEXURE R3 TRUE COPY OF THE LETTER NO.KSIDC/TVM/SCY8/323BM/1190 DATED 31.08.2021 ISSUED BY THE RESPONDENT TO THE PETITIONER ANNEXURE R4 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER ON 30.03.2022 TO THE RESPONDENT TRUE COPY P.A TO JUDGE