TMI Blog2019 (7) TMI 1558X X X X Extracts X X X X X X X X Extracts X X X X ..... d therefore is well within the limitation period. The Application under sub-section (2) of Section 7 of I B Code, 2016 is complete. The existing financial debt of more than rupees one lakh against the corporate debtor and its default is also 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. Application admitted - Moratorium declared. - CP(IB)No.2781/NCLT/MB/2018 - - - Dated:- 16-7-2019 - Hon'ble Member (Judicial): Mr V.P. Singh Hon'bleMember (Technical): Mr. Ravikumar Duraisamy For the Petitioner: Adv. Yahya Batatawala and PCS. S.K Jain For the Respondent: PCS. P.S Thakre ORDER V.P. Singh, 1. This is a petition being CP 2781(IB)/MB/2018 filed by A.K Corporation, a sole proprietorship concern, the Financial Creditor or Petitioner, under section 7 of Insolvency Bankruptcy Code, 2016 (I B Code) against Anupam Extractions Limited, Corporate Debtor, for initiating Corporate Insolvency Resolution Process (CIRP). The petition was filed on 18th July 2018. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 31.03.2017 is annexed to the Petition. Copy of the Audited Financial Statements of the Respondent for the Financial Year 2017-18 is annexed to the Rejoinder filed by the Petitioner. 6. The Bank Certificate issued by the Akola Urban Co-op Bank Limited, Akola Wardha Branch along with the Bank Statement for the period 01.04.2007 to 31.03.2018 and the Bank Certificate issued by the Central Bank of India, MIDC Wardha Branch along with the Bank Statement for the period from 01.04.2006 to 31.03.2010 is also annexed to the Petition. 7. The Petitioner submits that the Petitioner has sought repayment of loan along with interest and TDS Certificates vide its various letters dated 25.03.2007, 15.07.2008, 22.10.2008, 06.06.2009, 13.07.2009, 20.05.2011, 16.09.2017 and 03.10.2017. Copies of the said letters are produced on record. 8. The Respondent filed its Objections to the Petition by way of Affidavit in Reply on 25.02.2019. It is submitted by the Respondent that there is no instrument executed between the Petitioner and the Respondent. The Respondent submits that the Petitioner being a Director was also in charge of the functioning and the management of the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the Affidavit in-Reply does not contain the Board Resolution authorising Mr Rajendra kumar Basudeo Saraf to file the Objections and that it is not by the Rule 34 read with NCLT Form No. 6 of the National Company Law Tribunal Rules, 2016. Further, in the said Affidavit, there is no statement to affirm that the statements made in the Affidavit are true to the best of the knowledge and based on the information believed to be true. 14. The Petitioner in its Rejoinder submits a catena of judgements in support of its claim that the Balance Sheet of the Respondent is an acknowledgement of Debt and that the period of limitation gets a fresh extension from the date of signature on the Balance Sheet. 15. We have heard the parties and perused the records. 16. The Petition is filed by Mr Ashok B Saraf, Sole Proprietor of the Proprietorship Concern, A.K Corporation. 17. The Petitioner claims a due of ₹74,33,697.94 (Seventy Four Lakhs Thirty Three Thousand Six Hundred and Ninety-Seven Rupees and Ninety Four Paise only) including interest as on 31.03.2018. 18. It is an admitted position that the Petitioner was a Director of the Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds of the information utility or other evidence produced by the financial creditor to satisfy itself that a default has occurred. It is of no matter that the debt is disputed so long as the debt is due, i.e. payable unless interdicted by some law or has not yet become due in the sense that it is payable at some future date . 21. In the light of the above judgement and as per section 7 of the I B Code, 2016, the contention of the Respondent that the debt is disputed is not maintainable as the existence of a dispute is of no consequence in a petition filed under section 7. 22. The Respondent has also taken a contention that the Petitioner and Respondent have not entered into any instrument and that the amount was given by the Petitioner in the capacity of Director on the Board of Directors of the Respondent Company and the basis of mutual understanding between all the Directors of the Respondent Company, and there were no interest provisions for the amount so provided by the Petitioner. In this regard, the Hon ble National Company Law Appellate Tribunal has elaborately explained that the money extended by the Directors or Promoters of a Company, even at zero r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, and that is the time value of the money constituting the consideration for disbursement of such amount raised as debt with an obligation on the part of Company to discharge the same. Viewed thus, it can be said without any amount of contradiction that in such cases, the amount taken by the Company is like a financial debt . 23. It is observed from the letters dated 25.03.2007, 15.07.2008, 22.10.2008, 06.06.2009, 13.07.2009, 20.05.2011, 16.09.2017 and 03.10.2017that Petitioner has from time to time called upon the Respondent Company to issue TDS Certificates and Statement of Loan Account and also repayment of the loan. 24. As the debt and default are established, the question that arises at this point is whether the Petition is filed with the period of limitation. 25. It is imperative to mention here that unless the Petition is filed within the period of limitation, the same cannot be considered on merits. In this regard, the Respondent has cited various Supreme Court Decisions that the Law of limitation applies to the proceedings under section 7 and 9 of the Insolvency and Bankruptcy Code, 2016. 26. It is relevant to mention that Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding against him. 30. The Application under sub-section (2) of Section 7 of I B Code, 2016 is complete. The existing financial debt of more than rupees one lakh against the corporate debtor and its default is also 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. ORDER This petition filed under Section 7 of I B Code, 2016, filed by A.K Corporation, Financial Creditor / Petitioner, under section 7 of Insolvency Bankruptcy Code, 2016 (I B Code) against Anupam Extractions Limited, Corporate Debtor for initiating corporate insolvency resolution process is at this moment admitted. We further declare moratorium u/s 14 of I B Code with consequential directions as mentioned below: I. That this Bench as a result of this prohibits: a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; b) transferring, encum ..... X X X X Extracts X X X X X X X X Extracts X X X X
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