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TMI Blog2021 (4) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... HELD THAT:- The Corporate Debtor vide letter dated 29.11.2014 to the SBI with copy to the SIB (Assignee Bank) acknowledged the payments made to SIB in discharge of its liability to SIB and the Corporate Debtor, vide its certificate dated 20.11.2015 certified the 'Debt' owed and payment against such 'Debt' to SBI 85 SIB. The account of the Corporate Debtor was declared as 'Non-performing Asset' on 30.01.2014. However, the instant Petition/Application is filed on 23.11.2017. Therefore, the question is whether limitation starts from date of NPA or from subsequent dates of acknowledgement of debt and part-payments made, and what is law on the issue. Debt and default - HELD THAT:- There is hardly any dispute raised by the Respondent except raising that matter is pending before Hon'ble High court, DRT, stay is granted and continuing etc, which are already considered by the Hon'ble NCLAT in the said Appeal and negative also, and thus there are no more res Integra. Therefore, there is no other alternative for Adjudicating Authority except to initiate Insolvency proceedings against the Corporate Debtor. Application admitted - moratorium declared. - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... well as on behalf of the Financial Creditor and also u/s. 13(2) of SARFESI Act 2002. The Corporate Debtor vide letter dated 29.11.2014 to the SBI with copy to the SIB (Assignee Bank) acknowledged the payments made to SIB in discharge of its liability to SIB and the Corporate Debtor, vide its certificate dated 20.11.2015 certified the 'Debt' owed and payment against such 'Debt' to SBI SIB. (5) The account of the Corporate Debtor was declared as 'Non-performing Asset' on 30.01.2014. However, this Application is filed on 23.11.2017, which is within the period of limitation in view of the acknowledgement of payments on 27th and 28th November, 2014 by the Corporate Debtor in discharge of its liability and then issuing certificate dated 20.11.2015. Hence the petition. 3. The Corporate Debtor has filed the statement of objections to the amended petition of the Financial Creditor, on 10.02.2021, by inter alia stating as follows: (1) South Indian Bank (assignor) had filed O.A. No. 932/2014, which is re-numbered as TA No. 681/2017 on 04/04/2014 and on perusal of para No. 4 of said OA, South Indian Bank refers to the Letter of Revival dated 03/02/2012 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14, then the subsequent proceedings arising would be binding on both the members of the Consortium. The subsequent Notice dated 17/10/2015 by the Authorised Officer under the SARFAESI Act is also issued on behalf of the Consortium comprising of State Bank of India and South Indian Bank. In response to the Notice issued by the Authorised Officer who is undisputedly a Statutory Officer under the SARFAESI Act, proceedings initiated on behalf of the Consortium comprising of State Bank of India and South Indian Bank was impugned by this Respondent in W.P. No. 52886/2015. Further, apart from the Letter of Revival 03/02/2012 and the Letter of Acknowledgment dated 05/04/2011 the Corporate Debtor has not executed or signed any documents to prove the acknowledgement of Debt as per Section 25 (3) of the Contract Act or as per Section 18 of the Limitation Act. (5) On perusal of the Amended Petition filed by the Financial Creditor at Part IV of Form I, the Financial Creditor has mentioned the date of default as 30.01.2014 i.e., the date of NPA and further mentioned two subsequent dates 27th November, 2014 being the date of payment and a Letter dated 20th November, 2015. It is settled principle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in accordance in law as there is no document annexed with the reply/objection to substantiate the authority in favour of the person, who has deposed the content of the objection. Further, it is an admitted fact that the Corporate Debtor has to pay a sum of ₹ 15,43,83,042.73/- as the outstanding dues being the borrowing from South Indian Bank, which stands assigned to the Applicant. (2) The Applicant, vide Notice dated 17.03.2014, recalled the entire advance and demanded payment of the amount due from the Corporate Debtor. When the Corporate Debtor failed to pay the total outstanding demanded amount, the O.A. bearing No. 932/2014 was filed to recover the demanded amount. Further, Hon'ble NCLAT vide its judgment dated 24.11.2020 passed Company Appeal (AT) (Ins) No. 1337 of 2019 filed by the Financial Creditor has already rejected similar vague contentions of the Corporate Debtor. Hence it is legally not permissible to the Corporate Debtor to raise such vague defence. (3) The Corporate Debtor vide its letter dated 29.11.2014 to SBI with copy to SIB acknowledged the payments made to SIB in discharge of vide it liability to SIB. The Corporate Debtor in its objection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of the fresh demand notice dated 09.03.2017 as well as possession notice dated 19.08.2017 issued by SBI in its individual capacity and not on behalf of consortium demanded payment of ₹ 20,05,05,013/-. The Hon'ble High Court, vide its order dated 12.10.2017 passed in the said Writ petition has inter alia directed the sole Respondent (SBI) not to precipitate the issue till consideration of the main petition. (5) The Applicant being registered ARC, has unfettered independent right by the operation of Section 5 of the SARFAESI Act, 2002 to invoke the provisions of Section 7 of the code 2016 against the Respondent herein dehors to the fact that the Appellant has till date not substituted in the proceedings pending before the DRT. The pendency of the proceedings before the DRT and before the High Court, initiated by the Corporate Debtor cannot be legal bar on the exercise of legal right of the Appellant to move before the adjudication authority, under Section 7 of the Code, 2016. (6) As per Scheme, under the code 2016, there should be default in respect of financial debt owed to Financial Creditor to the corporate Debtor u/s. 7 (1) of the Code, 2016. U/s. 7 (2), an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. IBBI/IPA-001/IP-POO 121/2017-18/10263, e-mail: [email protected], is suggested as IRP, who has also filed written Communication in Form-2 dated 08.07.2019/01.03.2021, by inter-alia declaring that she is a qualified Insolvency Professional; there are no disciplinary proceedings pending against her with the Board or ICSI Insolvency Professional Agency. Therefore, he urged the Adjudicating Authority to initiate CIRP. In support of his case, the following judgments are relied upon: (1) B.K. Education Services Private Limited vs. Parag Gupta and Associates Civil Appeal No. 23988 of 2017 passed by Hon'ble Supreme Court of India on 11.10.2018 (2) Babulal Vardharji Gurjar vs. Veer Gurjar Aluminium Industries Private Limited Civil Appeal No. 6347 of 2019 passed by Hon'ble Supreme Court of India, (3) Saurav Mukerjee vs. Oriental Bank of Commerce Company Appeal (AT) (Insolvency) No. 940 of 2019 passed by Honb'le NCLAT, New Delhi. (4) Yogesh Kumar Jashwantlal Thakkar vs. India Overseas Bank Company Appeal (AT) (Insolvency) No. 236 of 2020 passed by Hon'ble NCLAT, New Delhi; (5) Sant Lal Mahton vs. Kamal Prasad 1951 AIR 477, 1952 SCR 116) (6) Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the Hon'ble Supreme Court of India in C.A. No. 1650 of 2020 and the same is pending. 8. As per history of case, the Respondent has initially filed I.A. No. 69 of 2019 by inter alia seeking to dismiss the present company petition, which was dismissed by the Adjudicating Authority on 21.02.2019. Aggrieved by this order, the Respondent has filed W.P. No. 14107 of 2019 before the Hon'ble High Court of Karnataka, which was disposed of by an order dated 25.04.2019 by quashing the impugned order and directed the Adjudicating Authority to decide the objections preferred by the Petitioner with regard to the maintainability of the Company petition by a speaking order within a period of three weeks from the date of receipt of the certified copy of the order passed today. Accordingly, the Adjudicating Authority allowed LA No. 69 of 2019, by an order dated 10th October, 2019, consequently dismissed the main company petition by reserving liberty to the Petitioner to file fresh company petition in accordance with law after the Hon'ble High Court decides the issues pending before it. 9. Aggrieved by the said order, the Petitioner has preferred an appeal before the Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment ₹ 3,47,00,000/- on 27.11.2014, again ₹ 53,00,000/- on 28.11.2014 SBI, being lead Member of Consortium Banks (SBI SIB), issued demand notice vide legal notice dated 27.10.2014 on its behalf as well as on behalf of the Financial Creditor and also u/s. 13(2) of SARFESI Act 2002. The Corporate Debtor vide letter dated 29.11.2014 to the SBI with copy to the SIB (Assignee Bank) acknowledged the payments made to SIB in discharge of its liability to SIB and the Corporate Debtor, vide its certificate dated 20.11.2015 certified the 'Debt' owed and payment against such 'Debt' to SBI 85 SIB. The account of the Corporate Debtor was declared as 'Non-performing Asset' on 30.01.2014. However, the instant Petition/Application is filed on 23.11.2017. Therefore, the question is whether limitation starts from date of NPA or from subsequent dates of acknowledgement of debt and part-payments made, and what is law on the issue. 13. In terms of Section 18 of the Limitation Act, period of limitation started a fresh from the date of acknowledgement of debt by the debtor. Section 18 of the Limitation Act is reproduced herein in verbatim: 18. Effect of ack ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The date of coming into force of I B Code does not and cannot form a trigger point of limitation for Applications filed under the Code. Equally, since Applications are petitions, which are filed under the Code, it is Article 137 of the Limitation Act, which will apply to such Applications. Article 137 governs Applications u/s. 7 of the Code, which being the residuary-provision on the period of limitation for other Applications is held applicable by this Court for the purpose of reckoning the period of limitation for an Application under Section 7 of the Code. 15. So far as the decisions relied upon by the Learned Counsel for the Respondent is concerned, as stated supra, different ratios/obiter dicta have been made or observed in those cases, basing on set of facts and circumstances as available in those cases, and they will not have direct application to the facts and circumstances in the instant case and we have kept in mind the decisions rendered in those cases while deciding the instant case. The Hon'ble NCLAT, has extensively dealt with decision rendered by the Hon'ble Supreme Court, in Civil Appeal No. 6347 OF 2019 Babulal Vardharji Gurjar Vs. Veer Gurjar Al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , e-mail: [email protected], Karnataka, Bengaluru, who is qualified Insolvency Professional, is hereby appointed as Insolvency Resolution Professional, in respect of the Respondent/Corporate Debtor namely M/s. Yashomati Hospitals Private Limited to carry out the CIRP as mentioned under the Insolvency and Bankruptcy Code, 2016 and various rules issued by IBBI from time to time; 2) The following moratorium is declared prohibiting all of the following, namely: a) the institution of suits or continuation of pending suits or proceedings against the Respondent/Corporate Debtor including execution of any judgment, decree or order in any court of law, Tribunal, Arbitration panel or other authority; b) transferring, encumbering, alienating or disposing of by the Corporate Debtor any of its assets or any legal right or beneficial interest therein; c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; d) The recovery of any property by an owner or lessor where su ..... 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