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2022 (4) TMI 652 - 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 - whether Ms. Anita Patole was duly authorised to depose on behalf of the applicants in the present application filed under Section 7 of the Code for initiation of CIRP against the Corporate Debtor? - applicability of time limitation - HELD THAT:- As per the notification dated 15.01.2003 issued by the Ministry of Finance and Company Affairs (Department of Economic Affairs), the UTI Trustee Company Private Limited, in its capacity as trustee of UTI Mutual Fund was notified as the specified company for the purpose of the Unit Trust of India (Transfer of Undertaking and Repeal) Ac, 2002. Further as per the Extracts of the Minutes of the meeting of the Board of Directors of Applicant No. 2 held on 07.04.2003, the UTI Asset Management Company Private Limited was empowered to institute/defend Legal Actions (both Civil and Criminal)'either by itself or through Lead Institutions etc. Therefore, it is clear that Ms. Anita Patole was duly authorised by the concerned authority to file the affidavit in support of Application under Section 7 of the Code on behalf of Applicant No. 2. Whether the present application has been filed within limitation? - HELD THAT:- The Respondent has also laid down three scenarios i.e. in case the default is considered from default of interest amount then the date of default is 31.12.1996, in case the default is considered from the default of principal amount then the date of default is 14.06.1996 and in case the date of default is considered as per the Restructuring Scheme then the date of default is 01.01.1999, therefore, the petition is time barred. The Financial Creditors have rebutted this contention of the Respondent/Corporate Debtor by contending that the Respondent has time and again defaulted in payment of the due amount therefore, there is a continuous default by the Corporate Debtor. It has also been contented that no proceedings could be taken due to BIFR Reference and as soon as the BIFR reference was abated, the legal bar ended and Financial Creditors filed the present petition enforcing their right. Section 238A of the Code came to be inserted vide the Insolvency and Bankruptcy Code (Second Amendment) Act, 2018, with effect retrospectively from 06.06.2018. Combined reading of Section 238A of the Code and Article 137 of the Limitation Act, 1963 reveals that the period of limitation for computation under the code will be 3 years from when the right to initiate accrues i.e. in the present case the date of default. Furthermore, Section 18 and Section 19 state that a fresh period will be computed from the time when the acknowledgment was so signed and when the last payment was made before the expiration of the prescribed period respectively. It is settled proposition of law that provisions of the Limitation Act, 1963 are applicable during computing limitation under the Insolvency and Bankruptcy Code, 2016 - Admittedly, in the instant case the Corporate Debtor was referred to SICA on 08.12.2000. While SICA came to be repealed, Section 7 of the Code was enforced w.e.f. from 01.12.2016. It is therefore, clear that on account of statutory bar the period commencing from 08.12.2000 to 01.12.2016 stands excluded under the aforesaid provisions rendering the Financial Creditors ineligible to file for recovery of outstanding debt or take any other appropriate remedy in law through the ordinary mode i.e. by way of filing of suit etc. Therefore, for the purpose of limitation such period has to be excluded and the petition has been filed well within limitation. Upon a detailed consideration of the application and documents filed by the Applicant, it is apparent that the payment of the claim amount has been defaulted by the Corporate Debtor. Hence, this Adjudicating Authority is inclined to commence CIRP against the Corporate Debtor as envisaged under the provisions of IBC, 2016. Application admitted - moratorium declared.
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