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TMI Blog2020 (2) TMI 694X X X X Extracts X X X X X X X X Extracts X X X X ..... and subsequently other banks i.e. State Bank of India and Central Bank, became part of lenders forum and granted credit facilities which were enhanced from time to time. Documents were executed, securities were given by the corporate debtor. In 2010 revival restructuring efforts began. New sanction letter was issued on 18/3/2013. The name of the company also got changed in 2015. The corporate debtor on failure of CDR package was termed as NPA on 25/8/2015 but as per procedure the date was revised on 15/1/2013 when the CDR package was formalized. 3. Ld. Counsel appearing for the financial creditor after narrating all the basic facts drew our attention to the documents in support of this fact and pointed out that the financial creditor filed proceedings before the Debts Recovery Tribunal, Kolkata on 10/4/2017. It was also contended that acknowledgment of debt had been signed on 21/5/2015 and Original Application had been filed before the DRT on 10/4/2017, hence, the present petition was well within the limitation period from the date of OA filed. 4. Ld. Counsel for the financial creditor also placed reliance on the decision of NCLT Kolkata Bench in the case of Trinetra Electronics ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he corporate debtor overall borrowings had been shown. As regards to the decision of the Mumbai Bench of NCLT, it was contended that securities were common which was not so here, that decision was factually different. It was also pleaded that any violation of such contract would not adversely impact the application under Sec. 7 of Insolvency & Bankruptcy Code, 2016 in view of provisions of Sec. 238 of Insolvency & Bankruptcy Code, 2016 which provide that anything contrary in any instrument would not be applicable. To further buttress his point, it was argued that as per provision of Sec. 6/7 of Insolvency & Bankruptcy Code, 2016 read with Sec. 4 thereto, a person in the case of default by a corporate debtor in the payment of amount more than Rs. 1 lakh could file an application for initiation of CIRP and this condition was present here. Therefore, there was no substance in the plea of the corporate debtor. In regard to the decision of the Mumbai Bench of NCLT cited by the corporate debtor, Ld. Counsel submitted that it only had a persuasive value but the fact which was noteworthy that applicability of Sec. 238 of Insolvency & Bankruptcy Code, 2016 was neither made nor considered by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SBI during the period from 25/8/2014 to 25/8/2015 under "holding on operation" permitted by SBI in terms of the letter dated 25/8/2014. This fact is born out from the letter of demand, copy of the same has been placed at pages 138 to 149 of the reply affidavit of the corporate debtor. It has also been mentioned at para (v) at page 12 of the reply that the proposal of restructuring was given in the year 2016, which was rejected by the bank, copy of such rejection letter dated 1/10/2016 has also been placed on record. These factual aspects, if read with the last payment made then it can be safely concluded that limitation has not expired. 11. Thus, in view of Explanation (a) to Sec. 18 of the Limitation Act, such actions constitute an acknowledgment of debt, which is before expiration of original period of limitation, therefore, the debt is not barred by limitation. Accordingly, we find no merit in the ground of the corporate debtor. 12. It has been claimed that balance sheet has been provided for the period more than 3 years from the date of default. Although we have held in the earlier para limitation has not expired but non-production of balance sheet for the earlier years does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be required. This has been so prescribed in Annexure IV to Form 1 under Rule 4(1) of Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. In the present case the financial creditor has filed application individually. Thus, we hold that consent of other members of the consortium is not required. It is further to be noted that in the case before Mumbai Bench of NCLT, this rule was not brought to the notice. Hence, for this reason said decision cannot be applied here. 14. As regards to the power of authority of the person who has filed the petition, we have carefully perused the documents produced by the financial creditor and hold that such person has got the requisite authority to file this petition. Consequently, this ground of the corporate debtor is also rejected. We are further of the view that such consideration are not of much relevance in case of issues related to economic legislation and that too when specific format of such authorisation has not been prescribed in the Code 2016. 15. It reveals from the record that the financial creditor has proposed the name of Shri Praveen Bansal, Registration No.IBBI/IPA-001/IP-POO175/2017-18/10344 email ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f moratorium shall have effect from the date of admission till the completion of the corporate insolvency resolution process. viii. Provided that where at any time during the corporate insolvency resolution process period, if the Adjudicating Authority approves the resolution plan under sub-section (1) of Section 31 or passes an order for liquidation of corporate debtor under Section 33, the moratorium shall cease to have effect from the date of such approval or liquidation order, as the case may be. ix. Necessary public announcement as per Sec. 15 of the IBC, 2016 may be made. x. Shri Praveen Bansal, Registration No.IBBI/IPA-001/IP-P00175/2017-18/10344 email address [email protected] is appointed as Interim Resolution Professional for ascertaining the particulars of creditors and convening a Committee of Creditors for evolving a resolution plan. xi. The Financial Creditor to pay a sum of Rs. 2,00,000/- (Rupees Two lakh only) to IRP as advance fee as per Regulation 33(2) of IBBI (Insolvency Resolution Process for Corporate Persons) Regulation 2016 which shall be adjusted from final bill. In case further funds are required during Corporate Insolvency Resolution Process an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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