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TMI Blog2019 (9) TMI 1388X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 5(7) of the IBC - answered in affirmative. Whether the debt is time-barred? - HELD THAT:- It was expected from the financial creditor and earlier to that by the bank to file proceeding against the corporate debtor within three years from the date on which the account of the corporate debtor became a NPA. In this case the account declared to be a NPA on March 31, 2014 proceeding is filed on October 31, 2018 - From the perusal of those financial papers of the corporate debtor, it is seen that corporate debtor noted that they have to pay the debt of United Bank of India. Their account is declared as a NPA. In short, in the year 2016, the corporate debtor in its balance-sheet acknowledged the debt to be payable by them which is claimed herein by the financial creditor. This acknowledgment of debt in its balance-sheet by the corporate debtor in the year 2016 has brought the claim of financial creditor within period of limitation. It is filed well within period of limitation. The debt is not time-barred - Answered in negative. There is no dispute that the corporate debtor is liable to pay debt more than 21 crores. It is also not in dispute that the corporate debtor has committed d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be recovered. The deed of assignment on the basis of which, this proceeding is filed, is not legal and valid document. The financial creditor does not get right to initiate any proceeding on the basis of such invalid deed of assignment. 7. He further contended that corporate debtor has filed a suit bearing Title Suit No. 1609 of 2017 in the City Civil Court, Kolkata challenging the legality and validity of the deed of assignment. It is pending. Since the court of competent jurisdiction is yet to decide the legality of the deed of assignment, this authority cannot take cognizance of this proceeding. The proceeding is not maintainable and may be dismissed. 8. We heard learned counsel for the financial creditor and the corporate debtor at length. Learned counsel for the corporate debtor brought to our notice the deed of assignment but he argued that it is not properly stamped. It has not been duly registered. Deed is not legal and it is invalid. It cannot be said that by virtue of such deed, debt is legally assigned or transferred in favour of the applicant. The applicant is not a financial creditor within the meaning of section 5(7) of the I and B Code. 9. He further contended t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uires that the deficiency of paying stamp can be recovered with penalty. The deed cannot be said to be illegal thereby. Moreover, the hon'ble Appellate Tribunal in the order stated above held that in paragraph 16 that (page 129 of 221 Comp Cas) : "The appellant has challenged the 'deed of assignment' executed between the 'HSBC and Phoenix', but while filing reply to the notice issued during the admission of application under section 7 of the I and B Code, such issue cannot be raised as it cannot be decided by the Adjudicating Authority on objection". In view of above, we hold that the applicant herein is the financial creditor within the meaning of section 5(7) of the IBC. We answer first point in the affirmative. 14. The proceeding is also challenged on the ground that it is time-barred debt. It is not in dispute that the bank declared the loan account of the corporate debtor to be a NPA on March 31, 2014. The bank got right to sue the corporate debtor in March, 2014. As per article 137 of Law of Limitation, bank could have filed the recovery proceedings against the corporate debtor on or before March 30, 2017. However, on March 29, 2017 the bank as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g March, 2016 (page No. 300 onwards in paper book). From the perusal of those financial papers of the corporate debtor, it is seen that corporate debtor noted that they have to pay the debt of United Bank of India. Their account is declared as a NPA. In short, in the year 2016, the corporate debtor in its balance-sheet acknowledged the debt to be payable by them which is claimed herein by the financial creditor. This acknowledgment of debt in its balance-sheet by the corporate debtor in the year 2016 has brought the claim of financial creditor within period of limitation. It is filed well within period of limitation. We hold that the debt is not time-barred. We answer point No. 2 in the negative. 17. Coming back to other facts that there is no dispute that the corporate debtor is liable to pay debt more than ₹ 21 crores. It is also not in dispute that the corporate debtor has committed default in paying the debt. By virtue of corporate debtor's admission about the debt in its balance-sheet for the year 2016, this proceeding appears to have been filed within period of limitation. The financial creditor suggested name of resolution professional for appointment as the IRP a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cess 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. (viii) Necessary public announcement as per section 15 of the IBC, 2016 may be made by the resolution professional upon receipt of the copy of this order. (ix) As per proposal given by the financial creditor, Mr. Anup Kumar Singh, having registration No. IBBI/IPA-001/IP-P00153/2-17-2018/10322 and e-mail id [email protected] is appointed as the interim resolution professional for ascertaining the particulars of creditors and convening a committee of creditors for evolving a resolution plan. (x) The financial creditor to pay to the IRP a sum of ₹ 50,000 as payment of his fees as advance, as per regulation 33(3) of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, which amount shall be adjusted at the time of final payment. (xi) The resolution professional shall conduct the CIRP in time-bound manner as per regulation 40A of the IBBI (I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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