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TMI Blog2022 (4) TMI 781X X X X Extracts X X X X X X X X Extracts X X X X ..... g Authority) Rules, 2016 (hereinafter as Rules) in the capacity of "Financial Creditor" by invoking the provisions of Section 7 of the Insolvency and Bankruptcy Code (hereinafter as Code) against 'Vijay Trading Company Private Limited' (hereinafter as 'Corporate Debtor'). 2. In the requisite Form, under the head "Particulars of Financial Debt" the total amount of Debt granted is stated to be Rs. 66.16 crores. The date of default is stated to be 30.04.2013. The date of NPA is as follows; 3. The Corporate Debtor has approached the Petitioner and requested to grant Financial Facilities. Subsequently, the Petitioner had entered into an Agreement of Loan - cum- Hypothecation dated 28th March, 2013 and Letter of Arrangement date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd on 30.12.2015. 7. The counsel for the Petitioner chose to rely on the judgment of the Hon'ble Supreme Court in B.K. Educational Services Pvt. Ltd. Vs. Parag Gupta & Associates, wherein it was held that the limitation period for the application will be governed by Article 137 of the Limitation Act and no other Article of Limitation act can be applied. 8. The counsel also relied upon the judgement of the Hon'ble Supreme Court in Babulal Vardhari Gurjar Vs. Veer Gurjar Alluminium Industries Pvt. Ltd., which held that the Section 7 application shall be filed within three years from the date of default. I.A. 22 of 2021 9. The present application was filed seeking condonation of delay of 1450 days in filing the present Company Peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crores for settlement of loan accounts of several group companies which includes the loan of the present Corporate Debtor. The proposal of settlement with regard to the Corporate Debtor is reproduced below: 12. In view of settlement proposal of the Corporate Debtor, by its group companies dated 16.05.2019, the limitation stands extended in view of the acknowledgement in writing under Section 18 of the Limitation Act. Section 18 of the Limitation Act, 1963 is reproduced below; "8. Effect of acknowledgment in writing.-- (1) Where, before the expiration of the prescribed period for a suit of application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the aforesaid, the petition is admitted. 14. Considering the above facts, we come to conclusion that the nature of Debt is a "Financial Debt" as defined under section 5(8) of the Code. It has also been established that there is a "Default" as defined under section 3(12) of the Code on the part of the Debtor. The two essential qualifications, i.e., existence of 'debt' and 'default', for admission of a petition under section 7 of the I&B Code, have been met in this case. Besides, the Company Petition is well within the period of limitation. 15. As a consequence, keeping the aforesaid facts in mind, it is found that the Petitioner has not received the outstanding Debt from the Corporate Debtor and that the formalities as pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of the Initiation of Corporate Insolvency Resolution Process shall be carried out by the IRP immediately on appointment, as per the provisions of the Code. 20. That the Interim Resolution Professional shall perform the duties as assigned under Section 15 and Section 18 of the Code and inform the progress of the Resolution Process and the compliance of the directions of this Order within 30 days to this Bench. A liberty is granted to intimate even at an early date, if need be. 21. In view of the above, the Bench "Allows" the Company Petition No. 4658 of 2019 u/s. 7 initiating CIRP against the Corporate Debtor i.e. Atharva Auto Logistics Private Limited. The commencement of the Corporate Insolvency Resolution Process shall be effective ..... X X X X Extracts X X X X X X X X Extracts X X X X
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