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TMI Blog2024 (5) TMI 676X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant, it is clear that said declaration contained the acknowledgement of debt of the company towards the Financial Creditor. The acknowledgment of debt in writing is sufficient to extend the period of limitation as per Section 18 of the Limitation Act. Thus, the said Declaration cum Undertaking will extend further period of three years from date of undertaking and the application under Section 95 which was filed on 10.08.2021 cannot be said to be barred by time. The Hon ble Supreme Court by Suo Motu Writ Petition (Civil) No. 03 of 2020 [ 2021 (3) TMI 497 - SC ORDER ] has excluded the period from 15.03.2020 to 28.02.2022 and in the present case the application was filed on 10.08.2021 i.e. during the aforesaid period. The three years period from date of Declaration cum Undertaking came to an end on 28.01.2021 i.e. within the period which as excluded by the Hon ble Supreme Court - thus, the application cannot be said to be barred by time. Insolvency petition which has been filed by the Financial Creditor has been signed by Resolution Professional who was not the authorized officer of Respondent No.1 - HELD THAT:- Section 95(1) permits a creditor to file an application through a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2016, the Bank invoked Personal Guarantee dated 25.07.2012 and demanded the repayment of a sum of Rs.26.68 crore from the Appellant within 15 days. (v) On 29.01.2018, Appellant issued a Declaration-cum-Undertaking in favour of Dena Bank. Dena Bank assigned the loan facility in favour of Respondent No.1 - Reliance Asset Reconstruction Company Ltd. (vi) On an application under Section 7 filed by the Financial Creditor, the Adjudicating Authority initiated CIRP against the Corporate Debtor by order dated 19.02.2020, in which proceeding Resolution Plan was also approved. (vii) The Financial Creditor issued Demand Notice dated 12.07.2021 in Form B under Rule 7(1) of the Insolvency and Bankruptcy (Application to the Adjudicating Authority for Insolvency Resolution Process of Personal Guarantors to Corporate Debtor) Rules, 2019 claiming an amount of Rs.27,81,33,386 and thereafter on 10.08.2021, Section 95 application was filed by the Financial Creditor. (viii) On 19.04.2022, Resolution Professional was appointed, who submitted a report. The Appellant also filed its reply alleging that petition is barred by time. Rejoinder was also filed by the Financial Creditor. (ix) The Adjudicating Aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed counsel for the Appellant is that application filed by the Financial Creditor was barred by time. Submission of the Appellant is that the Deed of Guarantee dated 25.07.2012 was invoked by Recall Notice dated 04.03.2016, hence, three years period of limitation ended on 04.03.2019 and application filed by the Financial Creditor on 10.08.2021 was barred by time. Copy of the Invocation Notice dated 04.03.2016 has been brought on record as Annexure A-3, which clearly has been addressed to the Appellant and other Personal Guarantors. The notice demanded an amount of Rs.26.68 crore within 15 days from the date of notice. After issuance of notice, the Appellant has issued Declaration cum Undertaking, which has been brought record as Annexure A-4. The Declaration cum Undertaking dated 29.01.2018 is as follows: DECLARATION CUM UNDERTAKING I, Shrenik Morakhia S/o Shri. Ashok Manilal Morakhia, presently residing at 289, SVP Road, Khetwadi 4th lane, Shribhavan 5th floor, Mumbai-400004 do hereby solemnly affirm and state on oath as under: 1. I say that I am a Director of M/s. Morakhia Copper Alloys Pvt. Ltd. (formerly known as M/s. Morakhia Metal Alloys Pvt Ltd.), and as well a guarantor for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od from 15.03.2020 to 28.02.2022 and in the present case the application was filed on 10.08.2021 i.e. during the aforesaid period. The three years period from date of Declaration cum Undertaking came to an end on 28.01.2021 i.e. within the period which was excluded by the Hon ble Supreme Court by order passed in Suo Motu Writ Petition (Civil) No. 03 of 2020. We, thus are satisfied that application cannot be said to be barred by time. 9. The next submission of the Appellant is that the insolvency petition which has been filed by the Financial Creditor has been signed by Resolution Professional who was not the authorized officer of Respondent No.1. 10. Section 95(1) permits a creditor to file an application through a Resolution Professional for initiating the insolvency resolution process. Thus, the submission of application by the Financial Creditor through Resolution Professional is clearly permitted by Section 95(1). We do not find any defect in the application which was filed by the Financial Creditor through Resolution Professional i.e. Mahesh R. Sureka, who is also submitted his written consent in Form A, which is part of the application. The authorized person of the Financial ..... X X X X Extracts X X X X X X X X Extracts X X X X
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