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TMI Blog2019 (10) TMI 1362X X X X Extracts X X X X X X X X Extracts X X X X ..... in the contention of the submission placed by the learned counsel for the petitioner, that this case comes under Article 62 of The Limitation Act. From the perusal of averments made in the application filed on behalf of petitioner, in counter affidavit filed by the respondent and reply to the counter affidavit filed by the petitioner, this adjudicating Authority finds, the Corporate Debtor in the Counter affidavit admits the debt and his only grievance is the entire properties of the Corporate Debtor are in hands of the Financial creditor - the application filed on behalf of financial creditor/Applicant under Section 7 of IBC is found complete and it is within limitation. It further appears that there is default in non-payment of the debt owed by the corporate debtor, applicant has annexed sufficient evidence to show the default on behalf of the corporate debtor. Therefore application filed U/S 7 of IBC deserves to be admitted. Application admitted - moratorium declared. - Company Petition (IB) No. 394/ALD/2019 - - - Dated:- 4-10-2019 - Abni Ranjan Kumar Sinha, Member, (J) For the Appellant : Ankur Gupta, Advocate For the Respondents : D.N. Awasthi, Advocate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taining to enhancement to cash credit (hypothecation of stocks) account limit from 400 Lakhs to ₹ 550 Lakhs and to extent of equitable mortgage created in favour of financial creditor. iii. He further submitted that on 8th November, 2013 the Corporate debtor had acknowledged all the existing credit facilities from the financial creditor in the name of M/s. Aimtech Industries Limited, now stand transferred in the name of M/s. Amitech Textiles Ltd. iv. The learned counsel for the applicant further submitted that the corporate debtor was enjoying various credit facilities/debt from the applicant and the Corporate Debtor had acknowledged its liability as on 05.06.2007 that a sum of ₹ 1,45,40,467.64 is due in the Cash Credit (Hypothecation) and a sum of ₹ 50,51,088 is due in the Cash Credit (Books Debts) Account. (The copy of the Letters of Acknowledgment is annexed as Annexure 6 of the Application). And also stated that after acknowledgment of the above debt the financial creditor has further granted facilities and debt which has also being acknowledged. (The Copy of all the aforesaid Sanction Letters and Letter of Acknowledgements are annexed as Annexure-7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned counsel in reply to the counter affidavit submitted and prays that the application filed U/S 7 Of the IBC deserves to be admitted as the Corporate Debtor had acknowledged its liability. 5. The Learned Counsel for the Financial Creditor submitted that in order to prove the Existence of the Financial Debt; they have annexed following documents: i. The copy of letter of acknowledgement of debt/Securities in favour of the financial creditors is annexed as Annexure 6, Annexure 7 and Annexure 31 of the Application. ii. The Copy of Sanction letters are annexed as Annexure 7 of the Application. iii. The copy of the certificate of Registration of Charge is annexed as Annexure 9 of the Application. iv. The title deeds of the immovable properties mortgaged by the Corporate Debtor in favour of the Financial creditor are annexed as Annexure 28 of the Application. v. The entries in the Statements of Accounts maintained by the Financial Creditor under The Banker's Hooks Evidence Act, 1891 is annexed as Annexure 30 of the Application. vi. The Copy of the Demand Notice dated 14.10.2015 sent to the Corporate Debtor, the copy of various Board Resolution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner is required to establish: a. Whether there is duly established financial debt. b. Whether there is default in payment by the corporate debtor. c. Whether the documents attached with the applicant shows that there is default in payment of debt and name of resolution professional is proposed to act as IRP and no disciplinary proceedings are pending against the proposed resolution professional. 9. The Hon'ble Supreme Court in Innoventive Industries Ltd v. ICICI Bank, (2017)205 Corny Cas 57(SC) held : The scheme of Sec 7 stands in contrast with the scheme under Sec 8 where an operational creditor is, on the occurrence of a default, to first deliver a demand notice of the unpaid debt to the operational debtor in the manner provided in sec 8(1) of the Code. Under Sec 8(2), the corporate debtor can, within a period of 10 days of receipt of the demand notice or copy of the invoice mentioned in Sub Section (1), bring to the notice of the operational creditor the existence of a dispute or the record of the pendency of a suit or arbitration proceedings, which is pre-existing-i.e., before such notice or invoice was received by the corporate debtor. The momen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the payment. Provided that, save in the case of payment of interest made before the 1st day of January, 1928, an acknowledgment of the payment appears in the handwriting of or in a writing signed by the person making the payment. Explanation. -- For the purposes of this section, -- (a) where mortgaged land is in the possession of the mortgagee, the receipt of the rent or produce of such land shall be deemed to be a payment; (a) where mortgaged land is in the possession of the mortgagee, the receipt of the rent or produce of such land shall be deemed to be a payment; (b) debt does not include money payable under a decree or order of a court, (b) debt does not include money payable under a decree or order of a court. 12. From the perusal of Section 19 of The Limitation Act, it appears to this Adjudicating Authority that it is admitted position of law that subsequently if any payment is made by the borrower than the limitation shall run from the date when the last amount was paid by the Corporate Debtor. Therefore, this Adjudicating Authority finds force in the contention of the submission placed by the learned counsel for the petitioner, that this c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , this adjudicating Authority finds, the Corporate Debtor in the Counter affidavit admits the debt and his only grievance is the entire properties of the Corporate Debtor are in hands of the Financial creditor. 18. Hence, the application filed on behalf of financial creditor/Applicant under Section 7 of IBC is found complete and it is within limitation. It further appears that there is default in non-payment of the debt owed by the corporate debtor, applicant has annexed sufficient evidence to show the default on behalf of the corporate debtor. Therefore application filed U/S 7 of IBC deserves to be admitted. 19. The Financial Creditor has proposed the name of Mr. Aditya Agarwal, Registration Number IBBI/IPA-001/IP-000529/2017-18/10954 for appointment as Interim Resolution Professional (IRP). Further IRP has filed a declaration in form 2 affirming that he is registered insolvency professional and no disciplinary proceedings are pending against him. (Copy of Form -2 is annexed as Annexure-5 of the Application) and there is default in the payment of the financial debt which is more than Rs One Lakh. Therefore, as per section 7(5)(a) of the code, the present application filed U/ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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