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2020 (10) TMI 488 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - time limitation - first and foremost objection raised by the respondent is that the present application filed in 29th April, 2019 is time barred as the petition is filed on the basis of the documents which pertain to the period from 2000 to 2014 - suppression of material facts or not - HELD THAT:- On perusal of the records it is found that the applicant bank has placed on record simple debit balance confirmation letter dated 07.04.2016 (Annexure A/34 of petition at page No. 653-657) issued by the respondent and addressed to the applicant acknowledging the debt. Moreover, the account statements show that there are regular credit entries after 7th April, 2016 till May, 2018. The corporate debtor by its letter dated 17.11.2018 has also given the details of amount repaid till 30.09.2018 and also acknowledged the amount outstanding in the respective account as on 30.09.2018. Moreover, the corporate debtor in para 29(a) of its reply, has admitted that it has paid ₹ 16.17 lacs during the financial year 2019-20. Further, the records reveal that from time to time the respondent has executed/entered into various documents acknowledging the debt. This itself shows that the respondent company has acknowledged the debt in the financial year 2019-20. Since the application is filed on 29.04.2019, it is well within time. Whether the power of attorney holder is not competent to file an application on behalf of financial creditor? - HELD THAT:- It is a matter of record that the seal affixed at the foot of the said power of attorney is the seal of the said bank and the name of signatures of Shri P.Y. Nagar, Shri T.K. Sharma and Shri D.K. Jain thereto subscribed are as those of the General Managers of said Bank of Mumbai are of the proper respective handwriting of the said Shri P.Y. Nagar, Shri T.K. Sharma and Shri D.K. Jain and the power of attorney is granted as per resolution passed by the Board of Directors of the Bank. Failure to establish the default on the part of the respondent - HELD THAT:- It is a matter of record that the petition reveals that the corporate debtor had availed term loan, fund/non fund based limits, working capital limits etc. from the petitioner bank and the respondent has acknowledged the debt from time to time - The debt recovery proceedings are initiated by the Financial Creditor to recover the amount. Simply because the Financial Creditor initiated proceedings before the Debt Recovery Tribunal, it does not lie in the mouth of the corporate debtor to say that no default occurred. As such there is no bar in filing IB application during the pendency of DRT proceedings. Moreover, Corporate Debtor did not disclose any bona fide defence based on substantial grounds for the claim made by the Financial Creditor before this Authority. The above said evidence is sufficient to substantiate the plea of the Applicant that a default has been committed by the Corporate Debtor in payment of amount due and payable to the Applicant. In the instant case, the documents produced by the Financial Creditor clearly establish the 'debt'. Section 13(2) Notice issued by the Financial Creditor clearly indicates that entire debt was recalled. There is a default on the part of the Corporate Debtor in payment of the 'financial debt' - the petitioner/financial creditor having fulfilled all the requirements of Section 7 of the Code, the instant petition deserves to be admitted. Application admitted - moratorium declared.
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