TMI Blog2019 (6) TMI 1353X X X X Extracts X X X X X X X X Extracts X X X X ..... Debtor. When the deed was signed at the time of taking a loan, the Guarantor now cannot contend that the deed is treated as revoked based on its notice to the Petitioner and Lenders as this can only be adjudicated by a Court of appropriate jurisdiction. The Petitioner has been assigned the loans by the Lenders of the Borrower Company. The Corporate Debtor is a Corporate Guarantor of the Borrower Company. The Petitioner is thus a Financial Creditor of the Corporate Debtor within the meaning of section 5(7) of the I B Code - The Corporate Debtor has not denied the sanction and disbursement of loan from the Lenders to the Borrower Company. The said loan is in default is also not disputed. The Application under sub-section (2) of Section 7 of I B Code, 2016 is complete - the application is admitted - moratorium declared. - CP 2527(IB)/MB/2018 - - - Dated:- 8-5-2019 - Member (Judicial) Mr V. P. Singh And Mr Ravikumar Duraisamy, Member (Technical) For The Petitioner : Adv. Shyam Kapadia, Adv. Ashish Pyasi, PCS Naresh S. Trivedi For The Respondent : Adv. Chitranjan Kumar ORDER 1. This is a petition being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de loan agreement dated 04.11.1987; Copy of said loan agreements is annexed to the petition. 5. The said loan facilities were secured by the Corporate Guarantee of Corporate Debtor vide Deed of Corporate Guarantee dated 06.11.1987 and also various personal guarantees of Mr Govindram Tek Chand Jarani, Dr G S Duggal, Mrs Ranjit Duggal and Mr Ashok Kumar Maheshwari. Further, on 25.11.1987, the SHRL entered into a Lease Deed with Corporate Debtor. The lease deed of the land situated at Agenda was deposited with the Original Lenders by the SHRL. The title documents of the land situated at Agenda were deposited with the Original Lenders by the Corporate Debtor. A copy of said lease deed and deeds of Corporate, as well as Personal Guarantee, are annexed with the petition. 6. After that, due to default and non-fulfilment of the conditions of the Loan Agreements by the SHRL, the IFCI, vide, its Letter dated 13.03.1989, cancelled the undisbursed loan amount of Rs. Two hundred twenty-five lakhs and issued a recall notice dated 29.11.1989 on behalf of all the financial creditors claiming a cumulative amount of ₹ 5,43,94,687/-as follows on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder dated 06.05.2011 in Appeal no. 141 of 2011 on the ground that the amount claimed in the OA was not allowed in totality, and the interest that was granted was much lower than the contractual rate of interest. The said appeal is also pending for final disposal. 11. The Corporate Debtor in its reply has raised the following objections to the admission of the Petition: a. That the DRT order dated 06.05.2011 is not final and not a decree as the same is the subject matter of Appeal No. 211 of 2013 and 73 of 2013 filed by the Managing Director of Corporate Debtor and Review Petition (L) No. 11 of 2017 and 13 of 2017 filed on 06.01.2017. b. That the Lease Deed dated 25.11.1987 has been legally terminated by a letter dated 31.01.1991 and the same was also recorded, vide a Registered Agreement dated 29.06.2017. Further, the Ld. Civil Judge vide judgement dated 03.08.2018 has held that Since the Plaintiff, i.e. Sima Hotels failed to prove that the Lease Deed at Ext. C-30 is /was subsisting; in my view, the Plaintiff is not entitled to any relief in the present suit . This is to contend that the present matter does not have any security ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r has mentioned the date of the first occurrence of default as 13.03.1989 and the present petition is filed on 10.07.2018 which is beyond the limitation period of three years as provided under Article 137 of Limitation Act, 1963 and therefore the petition is barred by limitation. The Corporate Debtor has relied upon the judgment of Hon ble Supreme Court in B.K. Educational Services Pvt. Ltd. vs Parag Gupta, and Associates contends that the Limitation Act is applicable on the applications made under the I B Code. g. That the Lenders have already initiated execution proceeding, and the same is pending for execution of DRT order dated 06.05.2011 on which the petitioner has based his claim. The Petitioner has admitted that the execution proceedings are pending before the recovery officer. Thus, the Application of the Petitioner under section 7 of the I B Code is not maintainable as NCLT is not a forum of execution. The Corporate Debtor has placed reliance upon the order of the Hon ble Principal Bench NCLT in Annapurna Infrastructure Pvt. Ltd and Ors vs Soril Infra Resources Ltd. and Deem Roll-Tech Limited vs R.L. Steel Energy Limited to state that this tribunal cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod that culminated in a decree in favour of the Petitioner dated 06.05.2011. The said decree is legally enforceable in terms of section 5(7) and 5(8) read with section 3(11) and 3(6) of I B Code as on the date of initiation of section 7 petition and the debt due by the Corporate Debtor to the Petitioner is not barred by Limitation Act, 1963 as in the date of filing of the petition and thus the present case is a case wherein the right to sue/recover the debt clearly subsists in favour of the Applicant as on date. The Petitioner has submitted that the petition is within limitation as the decree crystallising its debt was passed on 06.05.2011 and period of limitation prescribed for recovery of the same under the decree is 12 years as per Article 136 of the Limitation Act, 1963. This petition which is filed in September 2018 is very well within limitation. 15. The Petitioner has stated that in terms of section 3(6) of I B Code, a claim includes a right to payment wherein such a right is reduced to judgment. Further, it has stated that the said judgments on which the Corporate Debtor has sought reliance have been overturned by the Hon ble NCLAT. 16. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to point out that a default has not occurred in the sense that the debt , which may also include a disputed claim, is not due. A debt may not be due if it is not payable in law or fact. The moment the adjudicating authority is satisfied that a default has occurred, the application must be admitted unless it is incomplete, in which case it may give notice to the applicant to rectify the defect within seven days of receipt of a notice from the adjudicating authority. Under Sub-section (7), the adjudicating authority shall then communicate the order passed to the financial creditor and corporate debtor within seven days of admission or rejection of such application, as the case may be. 29. The scheme of Section 7 stands in contrast with the scheme Under Section 8 where an operational creditor is, on the occurrence of a default, to first deliver a demand notice of the unpaid debt to the operational debtor in the manner provided in Section 8(1) of the Code. Under Section 8(2), the corporate debtor can, within a period of 10 days of receipt of the demand notice or copy of the invoice mentioned in Sub-section (1), bring to the notice of the operational creditor the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porate Guarantor of the Borrower Company. The Petitioner is thus a Financial Creditor of the Corporate Debtor within the meaning of section 5(7) of the I B Code. 27. The Corporate Debtor has not denied the sanction and disbursement of loan from the Lenders to the Borrower Company. The said loan is in default is also not disputed. 28. The Petitioner has proposed the name of Mr.Arunava Sikdar, a registered insolvency resolution professional having Registration Number [IBBI/IPA-001/IP-N00022/2016-17/10047] as Interim Resolution Professional, to carry out the functions as mentioned under I B Code, and given his declaration; no disciplinary proceedings are pending against him. 29. The Application under sub-section (2) of Section 7 of I B Code, 2016 is complete. Given the evidence filed by the financial creditor, the existing financial debt of more than rupees one lakh against the corporate debtor and its default is proved. Accordingly, the petition filed under section 7 of the Insolvency and Bankruptcy Code for initiation of corporate insolvency resolution process against the corporate debtor deserves to be admitted. ORDE ..... X X X X Extracts X X X X X X X X Extracts X X X X
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