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TMI Blog2022 (11) TMI 1153X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 31.08.2012, the Financial Creditor - 'Tata Capital Financial Services Limited' granted financial facility to the tune of Rs.20 Crores to 'Simmtronics Semiconductors Limited', the Principal Borrower. The Corporate Debtor stood as the Corporate Guarantor to the borrowing by furnishing corporate guarantee and also created mortgage towards its immovable property to secure the loan. (ii) Under the Loan Agreement, default was committed in repayment of loan. Corporate Debtor caused delay in making the payment incurring liability to pay interest as agreed. The Principal Borrower committed default in payment of interest amount and the instalment amount on its due date. (iii) The Financial Creditor sent notice dated 19.05.2016, 06.06.2016 and 12.09.2016 to the Principal Borrower as well as the Corporate Guarantor (Corporate Debtor herein) for payment of the outstanding amount to the Financial Creditor. (iv) On 01.08.2016, winding up proceeding was initiated against the Principal Borrower on petition filed by one DHL Logistics Pvt. Ltd. (v) The Financial Creditor initiated Arbitration Proceedings against the Principal Borrower on 12.04.2017. (vi) In September, 2017, the Financ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication of account as NPA. 3. Learned counsel for the Respondent refuting the submissions of learned counsel for the Appellant submits that date of NPA classification was not relevant for computation of limitation. The three years period which under Article 137 is to be computed is from the date when default was committed. NPA declaration is made on classification by Financial Institution of a particular account. In the present case, since the Principal Amount got paid as per RBI Guidelines, there was no requirement of Financial Creditor to make any NPA declaration. Corporate Debtor has failed to pay outstanding amount on demand by Financial Creditor, hence, default was committed. Application filed under Section 7 is well within three years period. The period during which the Financial Creditor was pursuing remedies before other legal forums is liable to be excluded for the purpose of computation of limitation. On 11.11.2016, Corporate Debtor had proposed a One Time Settlement to Financial Creditor proposing a payment of Rs.80 Lakhs which is a clear acknowledgement of liability by the Corporate Debtor giving benefit of Section 18 of the Limitation Act. Learned counsel has relied o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion beginning from 20.09.2012 till 20.08.2013 following has been stated in the Part IV of the application: "From a perusal of the above details, it is seen that the borrower company committed defaults by not making the payments on their due dates and there was delay in making payments (i.e., payments were not made on their due dates, but after delay) The Financial Creditor also sent notices dated 19.05.2016, 06.06.2016 and 12.09.2016 to the borrower (Simmtronics Semiconductor Ltd. - now under liquidation) as well the Corporate Guarantor-cum-Mortgagor (i.e., Corporate Debtor herein) for the payment of the outstanding amounts to the Financial Creditor. However, neither response was received nor payments were made. Copy of the demand notices dated 19.05.2016, 06.06.2016 and 12.09.2016 sent to the Corporate Debtor herein as well as to the borrower company (since under liquidation) for payment of outstanding dues are annexed collectively as Annexure XII (colly). The Corporate Debtor, being the continuing corporate guarantor and the mortgagor in respect of the loan, is co-extensively liable with the borrower company for the payment of the outstanding amounts to the Financial Cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... code HDFC0000060 Account type Current Account Kindly note that in the event of any default in making payment as sought above, we will be constrained to make disclosures about the status of your account to the relevant authorities including RBI, CIBIL and also other lenders in terms of the facility agreement and / or would be constrained to initiate appropriate legal action. We hereby, also call upon you, M/s Sammi Electronics India Private Limited in the capacity of the Corporate Guarantor & Mortgagor to make the payment for the above mentioned outstanding amount at the earliest, failing which we would be constrained to initiate appropriate legal recourse against you and your directors as well. Yours faithfully For Tata Capital Financial Services Ltd. Authorized Signatory CC: 1) M/s Saami Electronics India Private Limited 803 A, Devika Tower, 6, Nehru Place, New Delhi, South Delhi-110019 Also at Industrial Property No.1D/3, Ecotech II, Udyog Vihar Greater Noida, Gautam Budh Nagar, Nr. Chetana Fashion, UP, 201306. 2) Mr. Inderjit Sabharwal House no. 104 & 105, Chander Nagar, Ghaziabad, UP 201011 Also at C-642, New Friends Colony, New Delhi - 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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