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TMI Blog2021 (4) TMI 1124X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 years. Therefore, the contention of the Corporate Debtor regarding limitation has no legs to stand. It is clear that when the adjudicating authority is satisfied that a default has occurred the Application must be admitted unless it is incomplete. In this case, the Application is complete in all respects as there is default on the part of the Corporate Debtor. Therefore, as per Section 7(5)(a) of the code, the present application filed under Section 7 of the I B Code,2016 deserves to be admitted against the Corporate Debtor - Petition admitted - moratorium declared. - IBA/41/KOB/2020 - - - Dated:- 9-4-2021 - Hon ble Shri Ashok Kumar Borah, Member (Judicial) For the Financial Creditor : Mrs. Umarani MN, Advocate For the Corporate Debtor : Shri Peer Muhammed Khan, Advocate ORDER This application IBA/41/KOB/2020 has been filed by M/s. DHANALAXMI BANK LIMITED (ANGAMALY BRANCH) (hereinafter called as Financial Creditor ) seeking to set in motion the Corporate Insolvency Resolution Process (CIRP) against M/s. ORMA MARBLE PALACE PRIVATE LIMITED (hereinafter called as Corporate Debtor ) as the Corporate Debtor committed default in making payment of ₹ 1,9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ST. But, the Corporate Debtor failed to comply with the conditions and the account continued as Non-Performing Asset. But during the audit, the auditors reclassified the date of NPA as 04.04.2018 based on the aforesaid relief provided by RBI and hence fresh recovery actions were initiated. As such Demand notice under SARFAESI Act was reissued on 25.04.2018 and is continuing the action based on the same. SUBMISSIONS OF THE CORPORATE DEBTOR 5. The Corporate Debtor in the counter stated that the Applicant bank filed the Application mainly relying on the alleged acknowledgement of liability dated 28.10.2014 and 10.10.2017 and those documents are produced in the above Application as Annexure -1 (M) and Annexure -1 (N). In these documents the date and the branch name are written with same handwriting, and that the nature of ink and writing are very same which would show that the above documents were created by the bank itself. Therefore, there will be no evidentiary value for these documents. Moreover, various signatories of these documents were not in station for signing such documents as the alleged acknowledgement of liability as on 10.10.2017. 6. It is further stated tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egal sanctity at all. It is further submitted that this application should have been filed before this Tribunal on or before 10.10.2020, but the same was submitted even thereafter in the year 2021 only, which is well beyond the period of limitation prescribed under Sec.238 A of Insolvency and Bankruptcy Code, r/w. Articles 36 and 37 of the Limitation Act and, therefore, the above application is liable to be rejected as time barred. It is well settled law that the period of limitation should be considered based on the date of alleged default occurred in the account, but not based on any other factors. There is no default in the account, as the Corporate Debtor had cleared the overdue amounts as admitted by the applicant bank itself and the request for restructuring of the facility is only pending before the applicant bank and thus the Corporate Debtor/borrower cannot be found fault for the alleged default in the account. Since the matter is pending before the bank pursuant to Annexure B (2) request, it cannot be termed as default in the account and in such circumstances the above application is not maintainable and is liable to be treated as premature. REJOINDER BY THE FINANCIA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication of the account as NPA on 04.04.2018. Though the borrower had remitted certain bulk amounts in the account, he failed to remit the required amount to come out of from the NPA status, so the request for restructuring could not be acceded to. FINDINGS 12. Both the sides have been heard at length. Case records were perused carefully along with the evidences as well. 13. Having gone through the documents, it is seen that there is no dispute that the Corporate Debtor has taken Credit facilities from the Financial Creditor on 28.10.2011. It is also not disputed that the Corporate Debtor has secured Credit Facilities by equitable mortgage of immovable property. The filing of the proceeding before the DRT in 2018 under SARFAESI Act 2002 are also not disputed. The contention of the Corporate Debtor is that the Application is hit by law of limitation as the Financial Creditor has declared the loan account as NPA on different dates i.e. on 05.12.2017 and 04.04.2018. To consider whether the limitation of 3 years bars the triggering of Corporate Insolvency Resolution Process due to the difference in the dates classifying the loan account as NPA, this Tribunal gone through th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icating authority by registered post or speed post to the registered office of the corporate debtor. The speed, within which the adjudicating authority is to ascertain the existence of a default from the records of the information utility or on the basis of evidence furnished by the financial creditor, is important. This it must do within 14 days of the receipt of the application. It is at the stage of Section 9, where the adjudicating authority is to be satisfied that a default has occurred, that the corporate debtor is entitled to point out that a default has not occurred in the sense that the debt , which may also include a disputed claim, is not due. A debt may not be due if it is not payable in law or in fact. The moment the adjudicating authority is satisfied that a default has occurred, the application must be admitted unless it is incomplete, in which case it may give notice to the applicant to rectify the defect within 7 days of receipt of a notice from the adjudicating authority. Under subsection (7), the adjudicating authority shall then communicate the order passed to the financial creditor and corporate debtor within 7 days of admission or rejection of such applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Corporate Debtor shall have effect from the date of pronouncement of this order till the completion of the CIRP or until this Bench approves the Resolution Plan under Sub-Section (1) of Section 31 or passes an order for liquidation of Corporate Debtor under Section 33, as the case may be. 21. That the public announcement of the CIRP shall be made immediately as specified under Section 13 of the Code. 22. That this Bench hereby appoints Mr. JASIN JOSE, having Registration No. IBBI/IPA-001/IP-P00695/2017-2018/11225, email id- [email protected], residing at Ponmattam Madaserry, Mookkannoor P.O, Angamaly, Ernakulam-683577 as Interim Resolution Professional to carry out the functions as mentioned under the Code. The fee payable to IRP, or, as the case may be the RP, shall comply with such Regulations, Circulars and Directions as may be issued by the Insolvency Bankruptcy Board of India (IBBI). The IRP/ RP shall carry out his functions as contemplated by Sections 15, 17, 18, 19, 20 and 21 of the I B Code,2016. 23. The Applicant Financial Creditor shall deposit an amount of ₹ 2,00,000/- [Rupees Two Lakhs] with the Interim Resolution Professional for initi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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