9911796707
TMI Blog2022 (11) TMI 1044X X X X Extracts X X X X X X X X Extracts X X X X ..... this Appeal is to the Impugned Order dated 17.09.2021 passed by the Learned Adjudicating Authority (National Company Law Tribunal, Mumbai Bench, Court - III) in C.P. No. 4182/IBC/MB/2018 by which Order, the Learned Adjudicating Authority has admitted the Application filed under Section 7 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as 'The Code') preferred by the 'Financial Creditor'/'M/s. Union Bank of India' against the 'Corporate Debtor'/'M/s. Indian Transformers Company Limited'. Aggrieved by this Order, the Shareholder of the 'Corporate Debtor' preferred this Appeal. While admitting the Section 7 Application, the Adjudicating Authority addressed the issue of 'Limitation' and noted the following: "Whether the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Corporate Debtor in the sur-rejoinder and written submission is liable to be rejected and accordingly rejected. 5. Upon hearing the submissions of the counsel appearing for the Financial Creditor and upon perusing the material available on record, this bench is of the considered opinion that the Financial Creditor has successfully proved the existence of debt and default and the debt is also within limitation. The Financial Creditor has also suggested the name of proposed Interim Resolution Professional in part-3 of the Petition along with his consent letter in Form-2. Thus, the present Company Petition satisfies all the necessary legal requirements for admission." 2. It is the main case of the Learned Counsel for the Appellant th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Reddy & Anr.' (2021) 10 SCC 330. * 'Khan Bahadur Shapoor Fredoom Mazda' Vs. 'Durga Prasad Chamaria & Ors. AIR 1961 SC 1236. * 'Sahara India' Vs. 'Shri Nandkishor & Anr.' Comp. App. (AT) (Ins.) No. 368/2021. * 'Gaurav Hargovindbhai Dave' Vs. 'Asset Reconstruction Company (India) Ltd. & Anr.' (2019) 10 SCC 572. * 'Bhawanishankar Harishchandra Sharma' Vs. 'Feedback Highways OMT Pvt. Ltd. & Anr.' Comp. App. (AT) (Ins.) No. 217 & 218 of 2022. * 'Babulal Vardharji Gurjar' Vs. 'Veer Gurjar Aluminium Industries Pvt. Ltd. & Anr.' (2020) 15 SCC 1. * 'M/s. Tech Sharp Engineers Pvt. Ltd.' Vs. 'Sanghvi Motors Limited' Civil Appeal No. 296/2020. * 'Sukbiri Devi & Ors.' Vs. 'Union of India & Ors.' Civil Appeal No. 10834/2010. * 'M/s. Inven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of time; an Original Application bearing No. 1009/2018 was filed before the Hon'ble DRT III for a Claim amount of Rs.37,18,82,327.80/- and thereafter Section 7 Application was filed before the Adjudicating Authority on 23.10.2018 and therefore the Application is well within the period of Limitation as fresh cause of action begins from 29.04.2016, i.e., the date on which the Demand Notice was issued and also because the last payment was made on 13.10.2017, which was also confirmed by the 'Corporate Debtor'. In support of his contentions, the Learned Counsel relied upon the following Judgements: * 'Dena Bank (now Bank of Baroda) Vs. 'C. Shivakumar Reddy & Anr.' (2021) 10 SCC 330. * 'Sesh Nath Singh & Anr.' Vs. 'Baidyabati Sheoraphuli C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "non-payment" of a debt which has become due and payable whether in whole or any part and is not paid by the Corporate Debtor"........................ 141. Section 18 of the Limitation Act cannot also be construed with pedantic rigidity in relation to proceedings under the IBC. This Court sees no reason why an offer of One Time Settlement of a live claim, made within the period of limitation, should not also be construed as an acknowledgment to attract Section 18 of the Limitation Act. In Gaurav Hargovindbhai Dave (supra) cited by Mr. Shivshankar, this Court had no occasion to consider any proposal for one time settlement. Be that as it may, the Balance Sheets and Financial Statements of the Corporate Debtor for 2016-2017, as observed abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10146; Letter of Guarantee dated 12.10.2013. ➢ General Term Loan Agreement dated 12.10.2013. ➢ Demand Promissory Note dated 12.10.2013. ➢ Letter of Undertaking not to alienate Hypothecated Goods dated 12.10.2013. ➢ Agreement on Rate of Interest dated 12.10.2013. ➢ Letter of Continuity dated 12.10.2013. ➢ Letter to be obtained from Directors in cases where advances have been permitted to private limited/limited company dated 12.10.2013. ➢ Debit Balance confirmation and Acknowledgement (Revised rate of interest) dated 12.10.2013." 9. The Hon'ble Apex Court in a catena of Judgements has laid down that it is not the date of NPA which strictly triggers the cause of action but the da ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
