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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 ..... e ground that the Financial Creditor had advanced several cash and credit facilities ('Credit facility' or 'Loan')to the Corporate Debtor. 4. The total amount to be claimed in default by the Financial Creditor is Rs.15,22,21,838.58/- (Rupees Fifteen Crore Twenty-Two Lakh Twenty- One Thousand Eight Hundred Thirty-Eight and Fifty-Eight Paisa only) including interest as on 01 August, 2019. 5. It is submitted in the Petition, Part - II that the authorised share capital of the Corporate Debtor is Rs.1,32,00,000/- (Rupees One Crore Thirty-Two only) with paid up Capital as Rs.1,31,33,390/- (Rupees One Crore Thirty-One Lakh Thirty Three Thousand Three Hundred Ninety only). Submissions by the Ld. Counsel appearing on behalf of the Financial Creditor 6. The Financial Creditor had granted several credit and cash facilities to the Corporate Debtor and the Corporate Debtor defaulted in repayment of such facilities. The Cast Credit limit sanctioned by the Financial Creditor was of Rs.8,50,000/- (Rupees Eight Lakh Fifty Thousand only) and later on enhanced to Rs.15,54,000/- 7. The total debt for the accounts- '259655100000107' and '1526778000000189' is Rs.15,22,21,838.58/- (Rupees Fifteen C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 2014. While the instant proceeding was pending adjudication, the Hon'ble Supreme Court was pleased to lay down the law of the period of limitation based on which the Financial Creditor may file an application under Section 7 of the Code inter alia claiming its alleged financial debt. 15. The Hon'ble Apex Court was pleased to hold that for the purpose of filing an application the provision of Article 137 of the Limitation Act 1963 (hereinafter referred to as the said Act of 1963) that essentially means three years from the date on which the right to sue accrued. In the instant case the right to claim the alleged debt accrued on and after the loan account was alleged as Non Performing Asset (herein referred to as the said NPA, which is on and from 31 March 2014. 16. Further, the Financial Creditor has subsequently issued a purported Notice under Section 13(2) ofthe SARFAESI Act 2002 dated 27.09.2014 claiming that the corporate debtor had allegedly committed default in payment of their outstanding dues. Therefore, it is evident that the Limitation period of three years has long expired. 17. Reliance has been placed on Sampuran Singh v. Niranjan Kaur (AIR 1999 SC 1047), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ided for the payment of the balance amount within 30 days from the date of Letter of Approval of OTS i.e.,11 January, 2019. Hence, this falls within the ambit of 'acknowledgement of debt due and payable'. 23. Balance sheet for year ending as on 2017 - 2018 of the Corporate debtor reflects that Corporate Debtor has certain short term borrowings which is showing that there exists cash credit facilities from the Bank. Further, as per the Auditors' Report of the Corporate Debtor for financial year ending as on 2017 - 2018 (page 104 of the Supplementary Affidavit), it states that the Corporate Debtor has defaulted in the repayment of loans or borrowings to financial institutions, banks. 24. In Laxmi Pat Surana V. Union Bank of India & Anr, decided on March 21, 2021, the Hon'ble Supreme Court has held that. " 37. Ordinarily, upon declaration of the loan account/debt as NPA that date can be reckoned as the date of default to enable the financial creditor to initiate action under Section 7 of the Code. However, Section 7 comes into play when the corporate debtor commits "default". Section 7, consciously uses the expression "default" not the date of notifying the loan account of the cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of three years from the date of default, a fresh period of limitation commences and the application can be entertained, if filed within this extended period." 26. In light of the above facts and circumstances, 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. 27. Accordingly, it is, hereby ordered as follows:- (a) The application bearing CP (IB) No. 1749/KB/2019 filed by IDBI Bank, the Financial Creditor, under section 7 of the Code read with rule 4(1) of the Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016 for initiating CIRP against Saraju Flour Mills Private Limited, the Corporate Debtor, is admitted. (b) There shall be a moratorium under section 14 of the Insolvency & Bankruptcy Code, 2016, and moratorium prohibits the following: i. The institution of suits or continuation of pending suits or proceedings against the Corporate Debtor including execution of any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 Officer of this Court is hereby directed to communicate this Order to the Financial Creditor, the Corporate Debtor and the IRP by Speed Post and email immediately, and in any case, not later than two days from the date of this Order. (j) Additionally, the Financial Creditor shall serve a copy of this Order on the IRP and on the Registrar of Companies, West Bengal, Kolkata by all available means for updating the Master Data of the Corporate Debtor. The said Registrar of Companies shall send a compliance report in this regard to the Registry of this Court within seven days from the date of receipt of a copy of this order. 28. CP (IB) No. 1749/KB/2019 to come up o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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