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TMI Blog2022 (3) TMI 865X X X X Extracts X X X X X X X X Extracts X X X X ..... has been raised, OA has been allowed and recovery certificate dated 29.11.2018 for realization of the same against the Corporate Debtor has been issued by DRT-II, Hyderabad - the present application having filed on 26.12.2019 is perfectly within limitation. The Adjudicating Authority admits this Petition under Section 7 of IBC, 2016, declaring moratorium for the purposes referred to in Section 14 of the Code. - CP (IB) No. 103/7/HDB/2020 - - - Dated:- 4-3-2022 - Dr. Venkata Ramakrishna Badrinath Nandula, Member (J) And Veera Brahma Rao Arekapudi, Member (T) For the Appellant : G.P. Yashvardhan and Saini Keshava Rao, Advocates For the Respondents : Gagan Narang, Advocate ORDER 1. This Petition is filed by State Bank of India under Section 7 of Insolvency and Bankruptcy Code (hereinafter to be referred as Code ), read with Rule 4 of Insolvency and Bankruptcy seeking initiation of Corporate Insolvency Resolution Process (CIRP), granting moratorium and appointment of Interim Resolution Professional as prescribed under the Code and Rules thereon, contending that the Respondent defaulted in the payment of alleged debt of ₹ 81,42,42,317.30 (Rs. Eighty on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of ₹ 12 crores, vide letter dated 21.11.2019 stating that the financial condition of the Corporate Debtor is not sound but the proposal was turned down by the Financial Creditor due to non-receipt of upfront amount of 5% of the compromise offer. To substantiate their claim of debt and default committed by the Corporate Debtor, the Financial Creditor has filed order and Recovery Certificate of the Hon'ble DRT, sanction letters, loan documents, statement of the account and financial statements filed as annexures to the company petition. 3.1. Counter is filed by the Corporate Debtor, inter-alia, contending that the authorization filed along with company petition is bad in law as the authorization is evasive and general. Further contended that owing to shortage of funds and reasons beyond the control of the Respondent and its promoters, the erection and commissioning of the Respondent Unit could not be completed and the cash flow module of the Company was severely affected and resulted into cost escalation, which in turn affected the loan re-payment schedule of the Company. 3.2. It is submitted that property of the Company (around 30,540 sq.yds) in Krishna District, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... low rate, the Financial Creditor contended that the alter failure to get bids four times, the aid property was auctioned in the year 2017 after following due process of law. 4.2. With respect to the limitation aspect, the Financial Creditor denies that their claim is time bared. The order of Hon'ble DRT in favour of Financial Creditor is dated 29.11.2018. The Financial Creditor has referred to para 143 of Hon'ble Supreme Court of India order dated 04.08.2021 in the matter of Dena Bank Ors. Vs C. Shiva Kumar Reddy, wherein it has been held that judgement and/or decree for money in favour of the Financial Creditor, passed by the DRT or any other Tribunal or Court, or the issuance of a certificate of recovery in favour of Financial Creditor, would give rise to a fresh cause of action for the Financial Creditor, to initiate proceedings under Section 7 of IBC. As such, the petition is well within the limitation. The Financial Creditor further submits that it had filed this petition with a bonafide intention to revive the Corporate Debtor and to get best resolution and not with a sole intention to recovery the outstanding amount. Thus submitting, the Financial Creditor again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Software Private Limited, wherein it is held as follows On the other hand, as we have seen, in the case of a corporate debtor who commits a default of a financial debt, the adjudicating authority has merely to see the records of the information utility or other evidence produced by the financial creditor to satisfy itself that a default has occurred. It is of no matter that the debt is disputed so long as the debt is due i.e. payable unless interdicted by some law or has not yet become due in the sense that it is payable at some future date. It is only when this is proved to the satisfaction of the adjudicating authority that the adjudicating authority may reject an application and not otherwise. (Emphasis is ours). We have carefully perused the record and fully satisfied from the record produced before us that there is debt payable by the Corporate Debtor, which has not been paid. Point (i) is answered accordingly. POINT NO. (ii) Whether financial claim by the Applicant is barred by limitation? 11. In so far as the plea of limitation is concerned, we find no force whatsoever in the contention of the Corporate debtor that the claim is barred by limitat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bering, alienating or disposing of by the Corporate Debtor any of its assets or any legal right or beneficial interest therein; any action to foreclose, recover or enforce any security interest created by the Corporate Debtor in respect of its property including any action under Securitization and Reconstruction of Financial Assets and Enforcement of Security interest Act, 2002 (54 of 2002); the recovery of any property by an owner or lessor where such property is occupied by or in possession of the corporate Debtor; (2) That the supply of essential goods or services to the Corporate Debtor, if continuing, shall not be terminated or suspended or interrupted during moratorium period. (3) That the provisions of sub-section (1) of Section 14 shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. (4) That the order of moratorium shall have effect from date of this 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 or passes an order for liquidation of Corporate Debtor under Section 33, w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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