Home Case Index All Cases Insolvency and Bankruptcy Insolvency and Bankruptcy + Tri Insolvency and Bankruptcy - 2021 (8) TMI Tri This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (8) TMI 1279 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - petitioner issued notice under Section 13(2) of the SARFAESI Act, 2002 on 25.05.2015 and the Corporate Debtor also responded to these notices - time limitation - HELD THAT:- This Petition has been filed by Reliance Asset Reconstruction Ltd (Financial Creditor) against Narendra Plastics Pvt. Ltd (Respondent/ Corporate Debtor) u/s.7 of the IBC for working capital loan of ₹ 20 crore sanctioned by ING Vysya Bank Ltd. (original lender) on 03.09.2012. The sanctioned loan limit were subsequently reduced and revised by ING Vysya Bank Ltd (Original Lender) on 04.06.2013. It is on record before the bench that the Assignment Agreement was executed between the original lender ING Vysya Bank and the Financial Creditor i.e., Reliance Asset Reconstruction Company Ltd. on 19.09.2014. The cut-off date under the Assignment Agreement was 31.08.2014. Under this agreement all benefits pertaining to the loans availed by the Corporate Debtor including all realization and recoveries made on and after the cut-off date were to be for the benefit of the Financial Creditor i.e., Reliance Asset Reconstruction Company Ltd. The debt due from the Corporate Debtor to the original lender were assigned by the original lender to the Financial Creditor vide Assignment Agreement with effect from 31.08.2014. In such event the bench would construe that, any debt which may be due from the Corporate Debtor to the Financial Creditor ought to be reflected in the books of the Financial Creditor. However, a perusal of Exhibit ‘B’ and ‘C’ of Company Petition shows that the amount outstanding and payable by the Corporate Debtor as on 31.08.2014 is reflected in the ledger account of a completely third party i.e., Kotak Mahindra Bank about which, the bench notes, no reference has been made by the Financial Creditor in the Company Petition. It is very evident to this bench that this debt does not appear in the books of the Financial Creditor who has filed this Petition. The Bench also notes that the original lender i.e., ING Vysya Bank got merged with Kotak Mahindra Bank on 01.04.2015 i.e., much after the execution of the Assignment Agreement by which the debt stood transferred to the Financial Creditor. This bench notes that such merger between ING Vysya with Kotak would have no effect on the assignment of debt to the Financial Creditor and it ought to be reflected in the books of the Financial Creditor . However, as per the document in support produced in the Petition by the Petitioner i.e., Financial Creditor, the debt appears in the books of Kotak and not of the Financial Creditor. Before this bench no document has been produced by the Financial Creditor to indicate that this debt payable by the Corporate Debtor is due in the books of Financial Creditor - The reliance of the Financial Creditor on the ledger account appearing in the books of Kotak would only lead this Bench to believe that the assignment is not an effective assignment at all and therefore, the bench concludes that in the given situation the Financial Creditor has no locus to file this Company Petition as a Financial Creditor. This Company Petition has been filed by the Financial Creditor u/s.7 on 08.05.2019. In Part-IV of the Petition the Financial Creditor has put the date of NPA as 30.06.2014. Therefore, the issue relating to limitation arises in the Petition as the Petition prima facie has been filed after more than 5 years. In the Petition no pleadings relating to extension/ exclusion of time to compute the period of limitation has been made. The bench notes that subsequently also no amendments in the Petition relating to extension of limitation or exclusion to compute the period of limitation has been made. It is well settled that the plea of limitation must be specifically pleaded by the Petitioner in their pleadings. In the instant case, the Financial Creditor has not specifically pleaded in its Application that it is within limitation and/ or sought condonation of delay in any respect. The Company Petition which has been filed on 07.05.2019 mentions the date of NPA as 30.06.2014. Since there is no averment or seeking condonation of delay in the Company Petition, therefore, this bench is of the view that since there is no averment or pleading by the Petitioner explaining the issue of limitation seeking condonation of delay, this Petition is barred by limitation and the bench is inclined to “dismiss” it. Petition dismissed.
|