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TMI Blog2022 (9) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... rrowings to financial institutions, banks. 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. Petition admitted - moratorium declared. - C.P (IB) No. 1749/KB/2019 - - - Dated:- 26-8-2022 - Shri Rohit Kapoor : Member (Judicial) And Shri Balraj Joshi : Member (Technical) Mr. Shaunak Mitra Advocate Mr. Siddhant Makkar, Advocate For Financial Creditor 2. Mr. Nimish Mishra, Advocate Mr. Debjit Mukherjee, Advocate For Corporate Debtor 2. ORDER Per Balraj Joshi , Member ( Technical ) 1. The Court convened via hybrid mode. 2. This is a Company Petition filed under section 7 of the Insolvency and Bankruptcy Code, 2016 ( the Code ) read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 by IDBI Bank ( Financial Creditor ), by Ms. MinkyPramanik, Deputy General Manager, duly authorised through Authorization Letter for initiation of Cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 014 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. Thereafter, on 23 October, 2018, the Financial Creditor offered for an OTS (One Time Settlement) under SARAL KARJ BHUGTAN YOJNA to the Corporate Debtor vide letter dated 23 October, 2018. Annexure A 17, pages 259 262 The offer was duly accepted by the Corporate Debtor by their letter dated 29 December, 2018. On 11 January, 2019, the Financial Creditor approved the OTS settlement amount. 11. However, the Corporate Debtor failed to honor the terms of repayment of the OTS (One Time Settlement) under SARAL KARJ BHUGTAN YOJNA, because of which the settlement stood revoked. Submissions by the Ld. Counsel appearing on behalf of the Corporate Debtor 12. This instant Petition is liable to be dismissed for non-joinder of parties. In terms of the Tripartite agreement dated 16 June, 2010 entered between the Corporate Debtor, the Financial Creditor and WBIDCL. 13. The Financial Creditor is bound by the provisions of the Banking Regulation Act, 1949 and the guidelines/circulars issued by the Reserve Bank of India. The Financial Creditor ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Date 1 Date of Default 31/08/2013 2 Date of NPA 31/03/2013 3 Date of representation u/s 13(3) of SARFAESI Act, 2002 21/11/2014 4 Payment received from the Corporate Debtor 29/03/2017 5 Payment received from the Corporate Debtor under OTS Offer SKBY 31/12/2018 6 Further payment received from the Corporate Debtor 22/01/2019 7 Further payment received from the Corporate Debtor 06/03/2019 8 Limitation period ending on 06/03/2022 Analysis and Findings. 20. We have heard the Ld. Counsel appearing on behalf of the Financial Creditor and the Ld. Counsel appearing on behalf of the Corporate Debtor. The issue that arises before us is whether the Petition und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... initiate action against such entity being a corporate debtor (corporate guarantor would get triggered the moment the principal borrower commits default due to non-payment of debt. Thus, when the principal borrower and/or the (corporate) guarantor admit and acknowledge their liability after declaration of PA but before the expiration of three years there from including the fresh period of limitation due to (successive) acknowledgments, it is not possible to extricate them from the renewed limitation accruing due to the effect of Section 18 of the Limitation Act. Section 18 of the Limitation Act gets attracted the moment acknowledgment in writing signed by the party against whom such right to initiate resolution process under Section 7 of the 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 proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002); iv. The recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. (c) The moratorium shall have effect from the date of this order till the completion of the CIRP or until this Adjudicating Authority approves the resolution plan under sub-section (1) of section 31 of the IBC or passes an order for liquidation of Corporate Debtor under section 33 of the IBC, as the case may be. (d) Public announcement of the CIRP shall be made immediately as specified under section 13 of the Code read with regulation 6 of the Insolvency Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. (e) Mr. Pankaj Kumar Tibrewal, registration number IBBI/IPA-001/IP-P- 01577/2018-2019/12410, email: [email protected],is hereby appointed as Interim Resolution Professional (IRP) of the Corporate Debtor to carry out the functions as per the Code subject to submission of a valid Authorisation of Assignment in terms of regulation 7A of the Insolvency and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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