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2021 (6) TMI 836 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - respondent/Corporate Debtor is NBFC or not? - RBI was under apprehension that the respondent was accepting deposits from public - existence of debt and default - applicability of Article 137 of the Limitation Act, 1963 or section 238A of Limitation Act, 1963. Whether the debt and default are proved or not - HELD THAT:- The petitioner/Financial Creditor has granted a debt or Inter-Corporate Deposit of ₹ 5,00,00,000/-, on 04.11.2011, as claimed by the petitioner. Whereas, according to the respondent/Corporate Debtor, the said amount was Inter-Corporate Deposit for a period of three months deposited towards Performance Bank Guarantee under the impugned contract. The Corporate Debtor also claimed that the said amount of ₹ 5 crores provided as security. Hence transaction dated 04.07.2011 even though termed as 'Inter Corporate Deposit', the same is taken as security furnished by the applicant for execution of the contract dated 12.04.2010 - certification by the respondent/Corporate Debtor can be considered as an admission of debt. Whether the present petition is hit by Article 137 of the Limitation Act, 1963 or section 238A of Limitation Act, 1963? - HELD THAT:- The alleged defaults had occurred between 01.04.2013 and 01.04.2016. Whereas the present petition is filed on 07.05.2019. If limitation period is reckoned between the date of latest default and the date of filing the present petition, there cannot be any delay. Whether the respondent/Corporate Debtor is NBFC? - HELD THAT:- This Adjudicating Authority has noticed in M/S SEW INFRASTRUCTURE LIMITED VERSUS M/S MAHENDRA INVESTMENT [2019 (10) TMI 1434 - NATIONAL COMPANY LAW TRIBUNAL, HYDERABAD BENCH] that the respondent/Corporate Debtor is not NBFC. The respondent has failed to provide any proof of registration as NBFC from the regulator, i.e. Reserve Bank of India. As such, we cannot rely on a mere statement made by the respondent in this regard. The Financial Creditor is able to establish the debt and default. Therefore, the petition is required to be admitted against the Corporate Debtor. After going through the documents filed by the petitioner,t the petition is liable to be admitted against the Corporate Debtor. Petition admitted.
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