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2019 (9) TMI 1459 - 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 - time limitation - HELD THAT:- There is no dispute with regard to the fact that the Corporate Debtor has taken Credit facilities from the Financial Creditor on 20.08.2011. There is no dispute in the fact that the Corporate debtor has secured Credit Facilities taken by equitable mortgage of immovable property (exhibit B 31). The Filing of the proceeding before the DRT in 2014 under SARFAESI Act 2016 are also not disputed. The Corporate Debtor also submitted that in the case filed before the DRT Ernakulam claimed only an amount of ₹ 1,10,25,692.86/-. In the instant case it appears that the default in payment of debt is a "default" as defined in section 3(12). Similarly, according to section 3(11) a debt means liability of obligation in respect of claim and for the meaning of claim if we refer 3 (6) which defines claim to a right to payment even if it is disputed. Besides that, the word 'default' is of rupees one lakh or more (Section 4). The IBC provision may be trigger by financial creditor or operational creditor - In the instant case as stated the debt is claimed by financial creditor is more than 1 Lakh Rupees. Again, as discussed herein before the Financial Creditor has proved that an amount of term loan along with bank guarantee was disbursed against the consideration for the time value money which was defined under Section 5(8) of the code. Time Limitation - HELD THAT:- The limitation for enforcing payment of money secured by a mortgage charged by the immovable property is twelve years at the time when the money sued become due. Thus for 12 years after becoming due, the debt would be payable by Law. In the Present matter, the sanction letter is on 15.05.2010. Apart from proceeding filed in DRT Ernakulam in the year 2013, the loan was secured by equitable mortgage and as such, it cannot be said that the debt was barred by limitation, when Section 7 application was filed on 31 July 2018 - Hence in this case the admitted fact is that the Corporate Debtor by taking the aforesaid loan from the financial creditor which become a due debt by executing some bank guarantee including equitable mortgage is not in dispute. And therefore, the facts and circumstances in the instant case, is not similar with the aforesaid case cited by the Learned senior counsel for the Corporate Debtor. Thus, the claim of financial creditor in the instant case cannot be said to be a debt which is time barred. This adjudicating authority having satisfied with the fact stated by petitioner, the Corporate Debtor defaulted in making payment towards the liability to the petitioner, Hence the petition deserves to be Admitted - Application admitted - moratorium declared.
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