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2019 (6) TMI 1394 - Tri - Insolvency and BankruptcyMaintainability of application - Initiation of Corporate Insolvency Resolution Process - default in repayment of including interest and other charges by Corporate debtor - time limitation - Petitioner has submitted that the period from 07.05.2008 till date is to be excluded, in accordance with section 15(1) of Limitation Act, 1963, for calculation of limitation on account of stay operating on the order dated 07.05.2008, the recovery pursuant to the said recovery certificates has come to a standstill. HELD THAT:- It is settled the position of law that this Tribunal as Adjudicating Authority does not have to determine the quantum of debt at the stage of admission of the petition but only determine that the amount of debt and default is more than the stipulated threshold of ₹1,00,000/-. The Corporate Debtor has sent a letter dated 07.02.2017 offering the Petitioner an amount of ₹5,00,00,000/- as a full and final settlement of its entire due. However, the Petitioner-Bank has refused to the settlement proposal of the Corporate Debtor. This establishes the debt and default very well over ₹1,00,000/-. Concerning the argument of the Corporate Debtor that the debt is time-barred, the Petitioner has sought exclusion of time under section 15 of the Limitation Act, 1963. We are of the view that the contention of the Petitioner is correct as there was stay over the execution of recovery certificates and due to the stay orders, the recovery certificates could not be executed, therefore the period during which the execution proceedings were stayed needs to be excluded for counting period of limitation. The period from 07.05.2008 till 21.01.2019 is to be excluded as the order dated 07.05.2008 whereby SRO directed the Corporate Debtor to deposit 50% of the decretal amount was stayed by the DJR vide order dated 28.05.2009 in Revision Application No. 231 of 2008 and subsequently vide order dated 30.11.2018 the said Revision Application No. 231 of 2008 has been sent back to the DJR for re-adjudication. As per submissions of the Petitioner, vide order dated 21.01.2019 the DJR has confirmed the action taken under notice dated 07.05.2008. In the present petition, the debt and default are established. The Corporate Debtor could not show that either no debt of more than ₹1,00,000/- is due, payable and in default - The petition is well within limitation. The Application under sub-section (2) of Section 7 of I&B Code, 2016 is complete. The existing financial debt of more than rupees one lakh against the corporate debtor and its default is also proved. Accordingly, the petition filed under section 7 of the Insolvency and Bankruptcy Code for initiation of corporate insolvency resolution process against the corporate debtor deserves to be admitted. Petition admitted - moratorium declared.
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