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TMI Blog2019 (10) TMI 216X X X X Extracts X X X X X X X X Extracts X X X X ..... lication to Adjudicating Authority) Rules, 2016 (hereinafter referred to as "the Rules") seeking reliefs under Section 7(5)(a) and Section 13(l)(a)(b)(c) of the Code. 2. That the applicant Bank of India, incorporated on 07.09.1906, having its office at Star House, Bandra Kurla Complex, Bandra (East), Mumbai 400 005, having identification No.U99999MH1906PLC000243, is in the banking business of providing various types of financial facilities including business loans, personal loans, consumer loans, loan against property, home equity loans, term loan etc. 3. M/s. Multi Arc Coating and Straps Limited is a company incorporated under the Companies Act, 1956 on 23rd December, 2005, having Identification No. U74999GJ2005PLC047344 having its regi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod from 30.06.2009 to 21.06.2018 along with certificate dated 28.06.2018 97-114 12 J Joint deed of Hypothecation dated 10.8.2007 115-126 13 K First supplement joint deed of hypothecation dated 23.11.2009 127-139 14 L Memorandum of entry dated 15.12.2007 140-159 15 M Memorandum of modification 160-197 16 N Credit facility agreement dated 23.11.2009 198-225 17 O Deed of guarantee executed by Mr. Ashok Kumar Jani dated 23.11.2009 226-236 18 P Deed of corporate guarantee executed by Mr. Ashok Kumudrai Jani on behalf of Chunilal and Company (Trading -Metalizing) P. Ltd. dated 23.11.2009 237-246 19 Q Deed of corporate guarantee executed by Mr. Ashok Kumudrai Jani on behalf of Gujarat Coaters and Converters P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 10. In this case, as can be seen from the material placed on record, the first legal notice was issued by the Petitioner Bank to the Respondent Company on 10.04.2012. In the said notice itself, there was a demand by the Bank to the Respondent Company and other guarantors to pay the outstanding amount in Cash Credit Account and Working Capital Term Loan Account which is due from the Principal Borrower, M/s. Multi Arc Coating & Straps Limited. 11. Learned Counsel appearing for the Petitioner also contended that no limitation is provided for triggering the Insolvency Resolution Process either by the Financial Creditor, Operational Creditor or Corporate Debtor under the provisions of the Insolvency Code. In the reply, it is stated by the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vency and Bankruptcy Code came into force, the Petitioner Bank issued a notice dated 10th April 2012 and filed this Petition. There is no bar in filing application under section 7 of the Code when DRT/SARFAESI proceedings are pending, as decided in catena of cases. Hence the period consumed in DRT/SARFAESI cannot be a ground for exemption of the limitation period. 13. At this juncture it is desirable to refer to the decision held by Hon'ble Supreme Court in BK Educational Services Private Limited v. Parag Gupta and Associates (BK Educational), with regard to retrospective/prospective applicability of limitation in IB Code, relevant portion of which is reproduced here below: - "The Supreme Court in BK Educational Services Private Limited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. As observed by G.P. Singh in his Principles of Statutory Interpretation, 4th edn. At p. 291 It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended" In fact, the amendment would not serve its object in such a situation unless it is construed as retrospective.... In the present case also, it is clear that the amendment of Section 238A would not serve its object unless it is construed as being retrospective, as otherwise, applications seeking to resurrect time-barred claims would have to be allowed, not being governed by the law of limitation. 15. In view of the above, while going through the documents so filed by the petitioner, admittedly, corporate debtor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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