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TMI Blog2022 (7) TMI 238X X X X Extracts X X X X X X X X Extracts X X X X ..... lementary Affidavit to section 7 application). Corporate Debtors own admission that part payments made towards the loan account was with a bona-fide intention of making payment of amounts which were legally due and payable to the Financial Creditor bank. There has been continuous acknowledgement in the Balance Sheet of the Corporate Debtor for the Financial Balance sheet for year ending 2011, 2012, 2013 2018 of the Corporate Debtor, which would extend the limitation period from time to time. The present petition filed by the Financial Creditor is complete in all respects as required by law. The Petition establishes that the Corporate Debtor is in default of a debt due and payable and that the default is more than the minimum amount stipulated under section 4 (1) of the Code, stipulated at the relevant point of time. Application admitted - moratorium declared. - C. P (IB) No. 1712/KB/2019 - - - Dated:- 4-7-2022 - Shri Rohit Kapoor : Member (Judicial) And Shri Harish Chander Suri : Member (Technical) For Financial Creditor 2. Mr. Shaunak Mitra Advocate Mr. Siddhant Makkar, Advocate For Corporate Debtor 2. Mr. Nimish Mishra, Advocate Mr. Debjit Mukherjee, Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pay the debts due to the Financial Creditor for financial assistance granted to the Corporate Debtor. Thereafter, the Financial Creditor issued notice dated 27/08/2013 invoking Personal Guarantee of the Directors of the Corporate Debtor, namely Shri Ramdas Dutta, Shri Debdas Dutta and Shri Biprodas Dutta. 9. Pursuant to the same, the Financial Creditor issued letter dated 16/09/2013 to the Corporate Debtor regarding redemption of Mortgage for the default committed by the name of the Corporate Debtor for the accounts maintained with the Financial Creditor Bank. However, the Financial Creditor finding no other alternative took recourse under the SARFAESI Act, 2002 and issued notice dated 05/10/2013 u/s 13(2) of the said Act for the accounts in the name of the Corporate Debtor maintained with the Financial Creditor Bank. 10. Subsequently, the Financial Creditor Bank issued notice dated 01/01/2014 u/s 13(4) of the SARFAESI Act, 2002 to the Corporate Debtor through its Directors for the default committed by Dutta Agro Mills Pvt. Ltd. 11. That the Financial Creditor Financial Creditor finding no proper relief for recovery of credit facilities granted to the Corporate Debtor and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t arises before us is whether the Petition under section 7 of the Code is barred by limitation or not? 18. Upon perusal of the record it is apparent that transaction between the parties was purely financial in nature and there is an existence of Financial Debt. From the records it is apparent that the Corporate Debtor continued its operation but failed to service its interest on 31-01-2013, 28-02-2013 and 31-03-2013. 19. The Corporate Debtor also made the last part payments of the sanctioned loan amount with the Financial Creditor Bank on 04 mat, 2014. However, thereafter the Corporate Debtor has not made arrangements to pay the dues owed to the Financial Creditor. 20. Balance sheet for year ending 2011, 2012, 2013 2018 of the Corporate debtor reflects that CD has certain short term borrowings which is showing that there exists cash credit facilities from the Bank. Further the Balance sheet also reflects secured term loans (Long term borrowings). A corresponding reading of the charges registered as available in the MCA portal expressly states that a charge has been created in favors of the Financial Creditor - IDBI Bank and the same remains to be satisfied. Thus it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Code enures. Section 18 of the Limitation Act would come into play every time when the principal borrower and/or the corporate guarantor (corporate debtor), as the case may be, acknowledge their liability to pay the debt. Such acknowledgment, however, must be before the expiration of the prescribed period of limitation including the fresh period of limitation due to acknowledgment of the debt, from time to time, for institution of the proceedings under Section 7 of the Code. Further, the acknowledgment must be of a liability in respect of which the financial creditor can initiate action under section 7 of the Code. 23. In Rajendra Narottamdas Sheth and Another v. Chandra Prakash Jain and Another 2021 SCC OnLine SC 843 , the Hon ble Supreme Court 23. It is no more res integra that Section 18 of the Limitation Act is applicable to applications filed under Section 7 of the Code. In case the application under Section 7 is filed beyond the period of three years from the date of default and the financial creditor furnishes the required information relating to the acknowledgement of debt, in writing by the corporate debtor, before the Adjudicating Authority, with such acknow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulations, Circulars and Directions as may be issued by the Insolvency Bankruptcy Board of India (IBBI). The IRP shall carry out his functions as contemplated by sections 15, 17, 18, 19, 20 and 21 of the Code. (f) During the CIRP period, the management of the Corporate Debtor shall vest in the IRP or the RP, as the case may be, in terms of section 17 of the IBC. The officers and managers of the Corporate Debtor shall provide all documents in their possession and furnish every information in their knowledge to the IRP within one week from the date of receipt of this Order, in default of which coercive steps will follow. No separate notice for cooperation by the suspended management should be expected. (g) The IRP/RP shall submit to this Adjudicating Authority periodical report with regard to the progress of the CIRP in respect of the Corporate Debtor. (h) The Financial Creditor shall deposit a sum of Rs.5,00,000/- (Rupees Five Lakh only) with the IRP to meet the expenses arising out of issuing public notice and inviting claims. These expenses are subject to approval by the Committee of Creditors (CoC). (i) In terms of section 7(5)(a) of the Code, Court Offic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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