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2019 (11) TMI 1401 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - scope of time limitation as per explanation (a) of Section 18 of Limitation Act, 1963 - HELD THAT:- The explanation (a) of Sec. 18 of Limitation Act, 1963 is wide in scope and has to be interpreted in the background of the current commercial environment and in accordance with the nature of proceedings of Insolvency & Bankruptcy Code, 2016 - In this chain, lastly a proposal by way of application under Sec.391 of the Companies Act, 1956 has also been made on 26/4/2016. Hence, if counted from this date, the petition filed under section is also not barred by limitation. We are further of the view of such claims/ proposals also amount to enforceable promise under Sec.25(3) of Indian Contract Act, 1872. Hence, for this reason also neither the claim nor application filed under section is barred by limitation. We are further of the view that in the present case continuous cause of action exists. Accordingly, we reject this claim of the corporate debtor. Non-enforceability of this petition because of reference of winding up being made by BIFR and which is pending for consideration of Hon’ble High Court, Calcutta - HELD THAT:- It is noted that no order of the Hon’ble High Court has been brought on record to show that winding up order has actually been passed before filing of petition under Sec. 7 of Insolvency & Bankruptcy Code, 2016. It is now a settled proposition that mere pendency of a proceedings of win g up before any High Court would not preclude/prevent a creditor to file a petition under Sec. 7 of Insolvency & Bankruptcy Code, 2016, hence, this contention of the corporate debtor is also rejected as provision of Sec. 11 (d) of Insolvency & Bankruptcy Code, 2016 do not come into play in the present case. The application filed by the Financial Creditor under section 7 of the Insolvency & Bankruptcy Code, 2016 for initiating Corporate Insolvency Resolution Process against the Corporate Debtor, Ispat Profiles India Limited is hereby admitted - Moratorium declared.
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