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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 ..... then it can be safely concluded that limitation has not expired - 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 - there are no merits in the ground of the corporate debtor. Consent of all the members of consortium before filing petition under Sec. 7 of Insolvency Bankruptcy Code, 2016 - HELD THAT:- No such condition exists either in Sec. 6 or 7 of the Insolvency Bankruptcy Code, 2016. Thus, if condition of consent by all the members of consortium of lenders/joint lenders forum is considered mandatory for filing a petition under Sec. 7 of Insolvency Bankruptcy Code, 2016 then it would amount to legislative action which is not in our domain. It would also be inconsistent with the scheme, object and specific provisions of Sec. 3(6) of Insolvency Bankruptcy Code, 2016 which define the term claim in the widest possible meaning - 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. Jurisdiction - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Ltd. v. McNally Bharat Engg. Co. Ltd. in the case of [CP (IB) No.l506/KB/2018] for the proposition that presentation in the financial statement constituted acknowledgment of debt and limitation was to be counted from that date. 5. Ld. Counsel for the corporate debtor contended that the present application had been filed by the financial creditor without consent/authorisation of the lead bank, hence, this petition was liable to be dismissed on this preliminary ground only. In this regard, he referred to clause 3(a)(b) of the inter se agreement between the joint lenders and referred to pages 700 to 712 to show the necessary conditions of such agreement whereby such consent of all the members of lenders forum is necessary. To support this contention, he placed strong reliance on the decision of Mumbai Bench of NCLT in the case of Oriental Bank of Commerce v. Ruchi Global Ltd. in CP No.469/IBC/NCLT/MB/MAH /2018 dated 14/2/2019 wherein the petition of the financial creditor in the similar circumstances, had been dismissed. Our a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 the Bench, hence, this decision was per in curium and not applicable. It was also contended that actual default happened on 25/8/2015 and letter of acknowledgment of debt had been signed on 21/5/2015, hence, from this date petition filed under Sec. 7 of Insolvency Bankruptcy Code, 2016 on 5/3/2018 was well within the limitation period. 9. As regards to the competency of the person, Ld. Counsel submitted that letter of authority given by the Deputy General Manager of the Bank to Shri Subrata Barman was in terms of the provision of Sec. 27 of the State Bank of India Act read with gazette notification dated 27/3/1987 issued by the State Bank of India, Central Office hence, said Shri Subrata Barman was very much authorised to do so. He drew our attention to Annexure A to the sur-rejoinder filed on 26/6/2019 in support of its claim and also regulation 76 and 77 of the State Bank of India General Regulation, 1955. He also drew our attention to the letter dated 16/6/2017 issued by the Chairman, State Bank of India i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod 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 not absolve the corporate debtor from the fact of reality, both legal as well as accounting, that outstanding loans, if not paid in between, continue from the period of disbursement till the period of repayment/outstanding. Thus, if an item is appearing in the balance sheet of a subsequent period and there is no repayment in between, then it is apparent that said liability is a continuing one and the presentation of the same in the balance sheet of the corporate debtor cannot be denied, or ignored. Since this aspect cannot have any other interpretation, hence, it can be taken even in the absence of balance sheet for such intervening/earlier years. Thus, we hold that presentation in the balance sheet amount to acknowledgment of debt and limitation continues to get extended from the date of balance sheet for respective years. We are further of the view that having regard to other documents or record no detailed break up is required. 13. Next issue is regarding consent of all the members of consortium b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 address [email protected] as Interim Resolution Professional who has has given his consent in Form 2. It further appears that no disciplinary proceedings are pending against the IRP. Accordingly, we approve his appointment as IRP. 16. The petition is otherwise complete in all respects and defect free. Accordingly, we admit the same and order as under:- ORDER i. The application filed by the Financial Creditor under section 7 of the Insolvency Bankruptcy Code, 2016 for initiating Corporate Insolvency Resolution Process against the Corporate Debtor, Silverton Spinners Limited is hereby admitted. ii. We declare a moratorium and public announcement in accordance with Sections 13 and 15 of the IBC, 2016. iii. Moratorium is declared for the purposes referred to in Section 14 of the Insolvency Bankruptcy Code, 2016. The IRP shall cause a public announcement of the initiation of Corporate Insolvency Resolution Process and call for the submission of claims under section 15. The public an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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