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2020 (12) TMI 60 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - person authorised to file application - time limitation - principles of res-judicata - default on the part of Corporate Debtor or not. Whether the Application has been filed by an Authorized person? - HELD THAT:- This Tribunal found that the Chief Manager of the Financial Creditor is competent to file this Application and the objection raised by the Corporate Debtor is merely incongruous, and therefore, holds no water. Moreover, the Chief Manager of the Financial Creditor had signed the application as an authorised person of the Financial Creditor in the specific authorization to file the Insolvency Application before this Bench. Moreover, since the amalgamation of the Banks were carried out by order of the Government of India, the question of signing the Application by the Union Bank of India officers will not arise. Hence, the technical objection raised on the ground of maintainability rejected. Whether this Application is barred by the law of limitation? - HELD THAT:- The existence of debt and default is reasonably established by the Financial Creditor as a major constituent for admission of a petition under Section 7(4) of the I&B Code.To get further clarity on this issue, this Tribunal had gone through Annexures A41, A44, A45 and found that the OA No. 407/2012 was filed before the DRT within a period of 3 years, after the accounts were classified as NPA on 31.12.2010, wherein the Corporate Debtor had admitted the financial facilities availed and the debt due. Before that, SARFAESI Demand Notice dated 08.11.2011 was issued to the Corporate Debtor, which resulted in filing SA No. 104/2012 before the Debts Recovery Tribunal by the Corporate Debtor - the claim is not barred by law of limitation as contended by the Corporate Debtor. Whether the Application is bad for non-joinder of necessary parties and hit by res judicata? - HELD THAT:- This Tribunal is not agreeable with the submissions made by the Corporate Debtor, that the Application is bad for non-joinder of necessary parties and that application is hit by res-judicata. Those contentions are made without any application of mind as those defences are not applicable to IBC proceedings for the reason that the provisions of the Code of Civil Procedure are not applicable to IBC proceedings. Insolvency proceedings against Corporate Debtor can be initiated only under the provisions of IBC and not by any other statute. As such invocation of res judicata seems only an ignorance of the provisions of law. Insolvency proceedings can be initiated even against the guarantor alone even before initiating action against the borrower - there is no bar under the statute for initiating two separate Applications simultaneously against the borrower and the guarantor. Whether there is default on the part of the Corporate Debtor and whether there is scope for initiation of Corporate Insolvency Resolution Process against the Corporate Debtor? - HELD THAT:- This Tribunal found that this is a fit case to initiate CIRP against the Corporate Debtor as there is default on the part of Corporate Debtor in owning their commitment under the provision of IBC to the Financial Creditor and that the Financial Creditor approached this Tribunal within the period prescribed under the IBC - This application is filed by the Financial Creditor under the Insolvency and Bankruptcy Code, 2016 for initiation of Corporate Insolvency Resolution Process against the Corporate Debtor to protect the interests of the stakeholders. Application admitted - moratorium declared.
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