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TMI Blog2021 (5) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... .2016. While reserving the order, this Adjudicating Authority had given opportunity for filing their respective written submissions in order to substantiate their arguments. In the above application, the date of default in the relevant column has not been deliberately typed by the applicant. Time Limitation - HELD THAT:- It is pertinent to cite here para 86 to 92 of the Hon'ble Supreme Court (Civil Appellate Jurisdiction) judgement in SESH NATH SINGH ANR. VERSUS BAIDYABATI SHEORAPHULI CO-OPERATIVE BANK LTD AND ANR. [ 2021 (3) TMI 1183 - SUPREME COURT] where it was held that If the period from the date of institution of the proceedings under the SARFAESI Act till the date of filing of the application under Section 7 of the IBC in the NCLT is excluded, the application in the NCLT is well within the limitation of three years. Even if the period between the date of the notice under Section 13(2) and date of the interim order of the High Court staying the proceedings under the SARFAESI Act, on the prima facie ground of want of jurisdiction is excluded, the proceedings under Section 7 of IBC are still within limitation of three years. Application admitted - moratorium ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporate Debtor approached IDBI Bank for sanction of credit facilities for their business purpose. A consortium of Banks consisting of financial creditor granted renewed/enhanced credit facilities (SBI- ₹ 56 crore, AXIS Bank- ₹ 57.42 crore and IDBI Bank- ₹ 32.50 crore) to the Corporate Debtor. Again, the credit facility was enhanced by the consortium of Banks to an amount of ₹ 160.50 crore. The Corporate Debtor has also availed credit facilities from Karur Vysya Bank to the tune of ₹ 205.50 crore on 11.10.2013. An inter-se agreement was entered into between this financial creditor, AXIS Bank, IDBI Bank and Karur Vysya Bank for the purpose of sharing the securities and also executed Letter of Authority to this financial creditor. The consortium of Banks renewed/modified the credit facilities from 205.50 crore to 205.52 crore at the request of the Corporate Debtor. (v) The Financial Creditor states that the Board of Directors of the Corporate Debtor in the meeting held on 23.08.2016 passed a resolution confirming that all the security documents executed by the Corporate Debtor in favour of the Financial Creditor (SBI Consortium) shall continue to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever, the respondent relies on two grounds - one on technical ground that the Corporate Debtor's date of default was not mentioned by the Financial Creditor which amounts to defect in the application. The learned counsel for the Applicant in his oral submission admittedly stated that the correction shall be carried out. However, the learned counsel for the applicant states that in the pleadings in para-49 has categorically mentioned that the Corporate Debtor's account had slipped into NPA on 28.11.2018. The learned counsel for the respondent states that in the notice issued under SARFAESI, the date of default was mentioned as 27.11.2018. The learned counsel for the applicant states that there has been typographical error in the application and that the date of default is only 27.11.2018. 7. On a perusal of Part-IV of the Application submitted by the Financial Creditor at serial no. 2 pertaining to date of default etc., the following sentence appears Amount defaulted by Corporate Debtor is ₹ 52,28,93,796/- (Rupees Fifty Two Crore Twenty Eight Lakh Ninety Three Thousand Seven Hundred and Ninety Six only) as on 30.11.2019 with further interest and other charges l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 12th November 2016 wherein Axis Bank, one of consortium banker has declared NPA. However, the respondent also states that the petitioner is a lead banker in the consortium of other bankers and the loan was sanctioned as the consortium and the amount due to the Axis Bank declared as NPA on 10th February 2017 and therefore this application is hopelessly barred by limitation. 10. It is pertinent to cite here para 86 to 92 of the Hon'ble Supreme Court (Civil Appellate Jurisdiction) judgement in Civil Appeal No. 9198 of 2019 - Sesh Nath Singh Another -Vs- Baidyabati Sheoraphuli Co-operative Bank Ltd. Another which is as follows: 86. In the instant case, even if it is assumed that the right to sue accrued on 31.3.2013 when the account of Corporate Debtor was declared NPA, the financial creditor initiated proceedings under SARFAESI Act on 18th January 2014, that is the date on which notice under Section 13(2) was issued, proceeded with the same, and even took possession of the assets, until the entire proceedings were stayed by the High Court by its order dated 24th July 2017. The proceedings under Section 7 of the IBC were initiated on 10th July 2018. 87. In our vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6, which make the provisions of the Limitation Act, as they apply to Court proceedings, also applicable to arbitration proceedings, Section 238A of the IBC 39 makes the Limitation Act applicable to proceedings in NCLT/NCLAT 'as far as may be' and/or in other words, to the extent they may be applied. 91. Legislature has in its wisdom chosen not to make the provisions of the Limitation Act verbatim applicable to proceedings in NCLT/NCLAT, but consciously used the words 'as far as may be'. The words 'as far as may be' are not meant to be otiose. Those words are to be understood in the sense in which they best harmonize with the subject matter of the legislation and the object which the Legislature has in view. The Courts would not give an interpretation to those words which would frustrate the purposes of making the Limitation Act applicable to proceedings in the NCLT/NCLAT 'as far as may be'. 92. In other words, the provisions of the Limitation Act would apply mutatis mutandis to proceedings under the IBC in the NCLT/NCLAT. To quote Shah J. in New India Sugar Mill Limited v. Commissioner of Sales Tax, Bihar, It is a recognised rule of interp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notified by the Central Government in consultation with any financial regulator. (IV) That the order of moratorium shall have effect from the date of issue of 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 IBC or passes an order for liquidation of corporate debtor under section 33 of IBC, the moratorium shall cease to have effect from the date of such approval or liquidation order, 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 IBC. (VI) The Petitioner/Financial Creditor as well as the Registry is directed to send the copy of this Order to IRP so that he could take charge of the Corporate Debtor's assets etc. and make compliance with this Order as per the provisions of I B Code, 2016. (VII) That this Bench hereby appoints Mr. Tharuvai Ramachandran Ravichandran having Regn. No. IBBI/IPA-002/IP-N00241/2017-18/10692 as Interim Resolution Professional, G.3 Block-II, Shivani Apartments, 40, East Coast Road, Thiruvanmiyur, Chennai-600041 as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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