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2020 (1) TMI 1592 - NATIONAL COMPANY LAW TRIBUNAL, MUMBAIMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - time limitation - HELD THAT:- The Corporate Debtor does not deny that there was a financial debt and that there was default. However, contends that there is no financial debt due and payable on the date of filing of application as the same is barred by limitation. The Corporate Debtor has also placed on record the OTS Agreement, dated 27.03.2018 whereby it says that the contract was novated. The contention of the Corporate Debtor, that the OTS was executed in entirety or defaulted need not be answered as the same has not been brought on record by the Applicant, is untenable. The Corporate Debtor cannot blow hot and cold at the same time - It is to be borne in mind that One time Settlement Agreements are just an opportunity to settle the liabilities at once, however, if there is a default in adhering to the terms of the One time settlement, the Corporate Debtor would be liable to repay the entire contractual dues. The contention of Corporate Debtor that the Applicant has suppressed material facts, and these orders not being placed on record by the Applicant and the date of default as per the application being 2013 the application is barred by limitation is incorrect for the reason that the Corporate Debtor cannot be allowed to take benefit of an inadvertent and bonafide mistake of the Applicant, which does not cause prejudice to the proceeding. The material facts so not placed on record by the Applicant in fact, support the case of the Applicant. The Application is well within the period of limitation as the last payment made was by virtue of order passed by the Debts Recovery Tribunal, Pune - It is seen that the Applicant has initiated proceedings before Dristrict Magistrate and The Debts Recovery Tribunal within the period of limitation and by virtue of orders passed in these proceedings, deposits have been made in the loan accounts in 2018. The Application is well within the period of limitation. It is established that the Corporate Debtor owes financial debt above a sum of ₹1,00,000/- and the default is established on perusal of the Commercial Credit Information Report of the Corporate Debtor and the Balance Sheet. In the facts of the instant Application, amount of default being above a sum of Rupees One Lakh and the Application having filed on proper form, this Application deserves to be admitted - application admitted - moratorium declared.
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