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TMI Blog2021 (1) TMI 615X X X X Extracts X X X X X X X X Extracts X X X X ..... rity date as 12.11.2013. The deposit receipt relied upon by the applicant has been produced. It is alleged that as per letter dated 11.11.2013, based on the agreement between the parties rollover of Inter Corporate Deposits was agreed and Kerala Ayurveda Limited requested for Inter Corporate Deposits of Rs. 5 Crores for a further period of 90 days with the maturity date as 11.02.2014, for which a deposit receipt was issued. Thereafter, as per letter dated 11.02.2014 based on the agreement between the parties it was agreed for another rollover of Inter Corporate Deposits and a request was made to have the ICD of Rs. 5 Crores for a period of 140 days which would mature on 30.06.2014 for which also deposit receipt was issued. It is stated that thereafter the ICD was never renewed. It is further stated that the Vice-President and Secretary of TGBL issued a letter dated 28.01.2011 admitting that the Trade Advance Agreement was converted into a short-term borrowing in the form of an Inter Corporate Deposit("ICD') and after the maturity of the ICD, the same was renewed twice and thereafter no renewal was made. Therefore, in the absence of an acknowledgement of debt by KAL after 30.06. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , failing which appropriate legal proceedings will be initiated against Kerala Ayurveda Limited and Arudrama Developments Private Limited. It is further submitted that no payment has been made by Kerala Ayurveda Limited or any knowledge of debt has been given by Kerala Ayurveda Limited after the letter dated 11.02.2014 sent by the Corporate Debtor to the Financial Creditor. The averment made in the application that payments were made by the Corporate Debtor based on certain bank account statement is incorrect. Arudrama Developments Private Limited paid interest as per the terms of ICD till 24.04.2017 and made part payment to the tune of Rs. 75,00,000/-, neither part payment nor interest has been made by Kerala Ayurveda Limited to Tata Global Beverages Limited. Hence, the claim made by the Financial Creditor against the KAL is barred by limitation. 5. The applicant further stated that the Hon'ble Supreme Court in Mobilox Innovations Private Ltd v Kirusa Software Private Ltd reported in (2018)1SCC 353 held that the adjudication authority when examining an application under Section 9 of the Act will have to determine: (i) whether there is an "operational debt"? (ii) whether t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rguments: i. B. K. Educational Services Private Limited V. Parag Gupta and Associates - (2019) 11 Supreme Court Cases 633 ii. Jignesh Shah and Another V. Union of India and Another (2019) 10 SCC 750V. Padmakumar V. Stressed Assets Stabilisation Fund (SASF) and another - (2020) SCC OnLine NCLAT 417 iii. Transmission Corporation of Andhra Pradesh Limited V. Equipment Conductors and Cables Limited - MANU/SC/1192/2018 iv. V. Padmakumar V. Stressed Assets Stabilisation Fund (SASF) and Another-2020 SCC OnLine NCLAT 417 v. Jagdish Prasad Sarada V. Allahabad Bank - 2020 SCC OnLine NCLAT 621 vi. Babulal Vardharji Gurjar V. Veer Gurjar Aluminium Industries Pvt. Ltd. and Another - 2020 SCC OnLine SC 647. 9. The learned counsel for the respondent/ applicant in the IBA stated that the Applicant had made payment of the outstanding dues till March 2017, Further, the ICD was secured by mortgage and hence any claim for recovery by the Financial Creditor from the Corporate Debtor is not barred under law of limitation. It is submitted that under Article 62 of the Schedule to the Limitation Act, 1963, the period of limitation to enforce payment of money secured by a mortgage or otherwise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication is based on the arbitration clause mentioned in Memorandum of Understanding dated 27.12.2010, Joint Development Agreement dated 09.02.2012 and Agreement dated 28.06.2013, which was already been dismissed on 17.02.2020 under separate Interlocutory Application (IA/09/KOB/2020 in IBA/46/KOB/2019), to which an appeal was filed before the Hon'ble NCLAT (Company Appeal (AT) (Insolvency) No. 429 of 2020) and the same was also dismissed as being premature stating that it is open to the learned Adjudicating Authority to decide the application on merits and in the event of the Appellant being aggrieved of the order of admission passed under Section 7, it shall be open to the Appellant to raise all issues in appeal. 13. As regards the allegation that no demand notice has been issued by the Applicant as mandated under Section 8 of the Code, it does not hold ground for the reason that the Application has been filed by the Financial Creditor for recovery of money borrowed as 'Inter Corporate Deposit' by the Corporate Debtor against payment of interest. In terms of clause (a) Sub-Section (8) of Section 5 of the I & B Code, the same tantamount to a debt disbursed against consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Bench is of the view that the provisions of Limitation Act do apply while implementing the provisions of Insolvency Code. Since it is clear that there is an acknowledgement in the records of the Financial Creditor, the Limitation Act are to be examined in the light of the facts and circumstances of this particular case. In the present case, the true extract of statement of accounts maintained by the Financial Creditor clearly depicts that the period of non-payment is from April 2017 and the last date of payment received by the Financial Creditor as 24.11.2017. 19. Indisputably, in the present case, the Financial Creditor itself came out with a pleading with the documents stating the date of default of outstanding principal and interest is from 01st April 2017 till 31st March 2019, as stated in Part IV of the application. Hence, this Bench is of the view that the IBA/46/KOB/2019 filed by the Financial Creditor (TATA Global Beverages Limited) is well within the limitation period and the contention of the applicant that the debt is time barred is to be rejected. 20. For the aforesaid reasons, this Interlocutory Application (IA/80/KOB/2019) is dismissed. Dated this the 12th day of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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