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TMI Blog2023 (3) TMI 1283X X X X Extracts X X X X X X X X Extracts X X X X ..... n as the Date of Default - HELD THAT:- It is seen from the record that there is correspondence dated 14.01.2022 and OTS Letter dated 27.11.2019. Apart from the fact that the issue of Limitation, is already answered in the previous Order and has attained finality, this Tribunal, is of the considered view that, it is not the Date of NPA, which is 30.09.2015, which is to be taken into consideration, keeping in view the facts of the attendant case, but rather, it is the Date of Default, which is six months, subsequent to the time given by this Tribunal, in the Order dated 09.09.2021, that is to be considered. This Tribunal, does not have any Equity Jurisdiction, and also conscious and alive to the candid fact that more than sufficient/ ample ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Appellants have sufficient experience in Hospitality and Health Sector and that the Project undertaken is viable and feasible only when all the 'Debts', are cleared and investment is made. The promoters have made huge investment to the tune of Rs. 225 Crores, which includes borrowed funds from the three 'Financial Creditors', out of which, they have settled with the 'State Bank of India', which is the major 'Financial Creditor', and also made part payments to the '1st Respondent/ Financial Creditor' / 'Union Bank of India'. 3. It is submitted that the project was technically assessed by Dun and Bradstreet and they have given a detailed 'Report', on 23.12.2016, with respect to every aspect of the 'Project', and that it was only becaus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is submitted that despite the time period given to the 'Appellant' herein, the amount was not paid and hence afresh 'cause of action', has arisen and therefore, it cannot be said that the Section 7 'Application', is barred by 'Limitation'. 7. It is the main case of the Appellant that the previous 'Order' of this 'Tribunal' is dated 09.09.2021, whereby and whereunder 'six months' time was granted and the same ended on 09.03.2022 and this date of 09.03.2022, cannot be taken as the 'Date of Default'. Dr. Ravichandran, drew our attention to Para No. 20 of the 'Order', which reads as follows: "We reiterate, that the scope and objective of the Code is Insolvency & not recovery. The Admission of Section 7 'Application' is set aside. Keeping ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 238-A IBC on 6-6- 2018, validity whereof has been upheld by this Court, it is not open to contend that the limitation for filing 'Application' under Section 7 IBC would be limited to Article 137 of the Limitation Act and extension of prescribed period in certain cases could be only under Section 5 of the Limitation Act. There is no reason to exclude the effect of Section 18 of the Limitation Act to the proceedings initiated under the Code. 43. 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 IBC. However, Section 7 comes into play when the 'Corporate Debtor' commits "default". Section 7, consciously uses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 IBC. Further, the acknowledgment must be of a liability in respect of which the financial creditor can initiate action under Section 7 IBC." (Emphasis Supplied) 10. It is also seen from the record that there is correspondence dated 14.01.2022 and 'OTS' Letter dated 27.11.2019. Apart from the fact that the issue of 'Limitation', is already answered in the previous 'Order' and has attained 'finality', this 'Tribunal', is of the considered view that, it is not the 'Date of NPA', which is 30.09.2015, which is to be taken into consider ..... X X X X Extracts X X X X X X X X Extracts X X X X
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