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TMI Blog2019 (8) TMI 1556X X X X Extracts X X X X X X X X Extracts X X X X ..... corporate insolvency resolution process against the corporate debtor deserves to be admitted - Application admitted - moratorium declared. - CP(IB)No. 2851/NCLT/MB/2018 - - - Dated:- 21-8-2019 - Hon'ble Member (Judicial) : Mr V.P. Singh AND Hon'ble Member (Technical): Mr Rajesh Sharma For the Petitioner : Adv.Pawan Sharma For the Respondent: Adv. Satyajit R. Kakade and Abhijeet J. Adnaik ORDER Per: V.P. Singh, Member (Judicial) 1. This is a petition being CP 2851(IB)/MB/2018 filed by Indian Renewable Energy Development Agency Limited, a company incorporated under the Companies Act, 1956 and a Public Financial Institution, the Financial Creditor or Petitioner, under section 7 of Insolvency Bankruptcy Code, 2016 (I B Code) against Shree Kedarnath Sugar and Agro Products Limited, Corporate Debtor, for initiating Corporate Insolvency Resolution Process (CIRP). 2. The Petition is filed by Mr Sushanth Kumar Dey, the Assistant General Manager of the Financial Creditor, claiming a total default of ₹57,38,92,106/- (Rupees Fifty Seven Crore Thirty Eight Lakh Ninety Two Thousand, One Hundred and Six only) as on 31.03.2018. The amount claimed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No Objection Certificate issued for ceding paripassu charge issued by the Syndicate Bank is annexed to the Petition. 6. The Petitioner has disbursed a sum of ₹24,49,96,494/- in 8 disbursements from 03.09.2007 to 31.03.2010. 7. It is submitted by the Petitioner that the Respondent has failed to implement the project successfully for which the loan was granted and has also defaulted in making payments to the consortium Bankers. The lead Banker has issued a notice under section 13(2) of the SARFAESI Act, 2002 to the Respondent and the copy of the same is annexed to the Petition. 8. It is submitted by the Petitioner that the Respondent has acknowledged its inability to pay the outstanding and offered for a one-time settlement to the Petitioner. However, the Petitioner has not conceded to the same, since the one-time settlement conditions are unfavourable to the Petitioner. Copies of the communications in this regard, as available upfront, are annexed to the Petition. 9. The Petitioner issued Notice dated 11.03.2013 for invoking the guarantee and demanding the guarantor to pay all the amount payable and due by the Respondent. The copy of the Notice dated 11.03.2013 is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e then board of directors and the nominee director of the Petitioner was in the board of directors. However, nothing was pointed out by the nominee director. The Petitioner withdrew its representation from the board of directors in the year 2013 when the functioning of the Corporate Debtor had come to a stand still due to various losses. The Respondent submits that after the disqualification of its erstwhile directors, the present board and the management came across various anomalies and irregularities in the day to day functioning of the then management on board. 16. The Respondent in its Reply has also contended that the Petition is barred by limitation since the default as per the Petition occurred on 01.04.2011 whereas the Petition is filed in the year 2018 after a lapse of 7 years and has relied on the Supreme Court decision in the case of B.K Educational Services Private Limited v. Parag Gupta and Associates, AIR (SC) 5601, 2018 DGLS (SC) 1037. 17. The Petitioner in its Rejoinder submits that the Petition is not barred by limitation as the claim is arising out of the loan sanctioned and disbursed to the Respondent. It is further submitted that as per the amortization s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect to this claim is within limitation It goes without saying when lis is pending before any court of law; limitation will not run against the claim pending before a competent forum. Therefore, the claim filed under section 7 of this Code shall not be treated as barred by limitation . 20. We have heard the parties and perused the records. 21. The Petition is filed by Mr Sushanth Kumar Dey, the Assistant General Manager of the Financial Creditor. The petition was filed on 27th July 2018. Copy of the Circular dated 21.05.2004 along with Letter of Authority dated 12.06.2018 authorising Mr Sushanth Kumar Dey to file this Petition is on record. 22. The Petitioner has annexed copies of the documents relating to the grant of loan to the Respondent. The Sanction Letter dated 16.03.2007, the Board Resolution dated 20.03.2007 of the Respondent accepting the terms and conditions of the Sanction Letter, the Loan Agreement dated 20.04.2007, the Guarantees executed in favour of the Petitioner and other loan-related documents. The Respondent has not denied the fact that the Petitioner provided the loan as per the Sanction Letter. 23. The Petitioner has annexed the Commercial Credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... construction of Financial Assets and Enforcement of Security Interest Act, 2002; d) the recovery of any property by an owner or lessor where such property is occupied by or in possession of the corporate debtor. II. That the supply of essential goods or services to the corporate debtor, if continuing, shall not be terminated or suspended or interrupted during the moratorium period. III. That the provisions of sub-section (1) of Section 14 of I B Code shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. IV. That the order of moratorium shall have effect from the date of this order till the completion of the corporate insolvency resolution process or until this Bench approves the resolution plan under sub-section (1) of section 31 of I B Code or passes an order for the liquidation of the corporate debtor under section 33 of I B Code, as the case may be. V. That the public announcement of the corporate insolvency resolution process shall be made immediately as specified under section 13 of I B Code. VI. That this Bench at this moment appoints Mr.Bhuvnesh Maheshwari, a registered insolve ..... X X X X Extracts X X X X X X X X Extracts X X X X
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