TMI Blog2020 (5) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... nancial Creditor is within time. There are no force in the contentions raised on behalf of the Ld. Counsel for the Corporate Debtor that the present proceeding is barred by limitation, accordingly, we find that it is well within time. In order to trigger the proceeding under section 7 of IBC, we have to see only two things i.e. there is a financial debt and the debt is due. It is of no matter that the debt is disputed. In the light of the decision, when we shall consider that case in hand then we find, the documents and the pleading shows that the financial debt has been given by the applicant to the Corporate Debtor and that has not been repaid, which would also evident from the One Time Settlement Proposal dated 15-9-2018, 15-9-2018 15-2-2019 - thus, the Financial Creditor has established this fact that there is a financial debt and that has not been paid and so there is default and he is legally entitled to get' that amount. It is seen that there is default in payment, there is a financial debt and the amount in default is more than ₹ 1, 00, 000/-which is the minimum threshold limit fixed under IBC, 2016 and there are no disciplinary proceedings pending agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5, 000/-and attended the Office of the Applicant Bank/Financial Creditor and executed the following necessary document amongst other as per norms:- 1. Letter of Guarantee dated 3.01:2007.- 2. Hypothecation documents dated 03-01.2007. 3. Mortgage by deposit of Title Deeds dated 10-2-2007. Further, it was duly agreed that in case of any default in the payment of the instalment either of the principal or interest mentioned above, the Applicant Bank will be entitled to charge interest at the rate of 1.00% above the Bank Prime Lending Rate subject to the minimum of 13% per annum. The account of Corporate Debtor was classified as Non-Performing Asset on 31-12-2014. The Applicant Bank on 14-2-2015 sent the notices under s. 13(2) of SARFAESI Act, 2002 to the Corporate Debtor as well as the Directors in respect tc the assets given as security interest in favour of the bank. The Respondent/Corporate Debtor paid some amount in parts towards the said Credit Facilities from time to time and lastly a part payment was made on 10-6-2015 as shown in the statement of account and the Respondent agreed to repay the outstanding of the Bank but thereafter there is no payment since 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii. The Company and its promoters fulfilled all their obligations and also made payments of ₹ 72 laks in spite of being in stress, however, despite several requests, the Applicant bank failed to release its portion of balance loan amount as per the sanction letter, due to which, the company could not implement its project and suffered huge losses. Out of ₹ 12.80 crore of the sanctioned amount, the Bank disbursed only an amount of. ₹ 2.27 crore. Due to omission on the part of the Bank, all the movable/immovable assets that were to be used during the course of (he project have been lying idle on the site and failed, to generate any revenue due to the reluctance and non-disbursement of further tranche of loan by the Applicant Bank leading to zero income for all the parties involved. Therefore, insolvency petition is liable to be rejected. Refer Gujarat State Financial Corporation v. Lotus Hotels (P.) Ltd. [1983] 3 SCC 379 and Radha Kohli v. Logical Jewellers (P.) Ltd. [2019] 102 taxmann.com 151 (NCLT -New Delhi) passed by the Principal Bench, New Delhi]. The bank has been indulging in vexatious and frivolous litigation and cannot be permitted to take benefit of its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osal was in accordance with the Bank Policy and therefore, the same were rejected by the Bank. ii. That the Respondent has alleged in its reply that the Applicant Bank is liable to pay an amount of ₹ 33, 47, 58, 000/-to the Respondent and accordingly, the Respondent made a counter claim for the said amount. It is respectfully submitted that the Respondent had also alleged the same before the DRT.I The Respondent had filed the application for taking on record the counter claim. The said application was dismissed by the DRT, Delhi and thereafter the Respondent filed an Appeal before the DRAT, Delhi and the same was dismissed by the DRAT Delhi vide the order dated 13-11-2018. The Respondent had challenged the order dated 13-11-2018 before the Hon'ble High Court of Delhi by way of filing WP(C) 13387/2018 CM No. 52136/2018 and the same was decided the Hon'ble Delhi High Court on 12-12-2018 wherein the Hon'ble High Court remanded back the matter to DRT, Delhi. It is further submitted that the Respondent has appeared as per the direction of the Hon'ble High Court and DRT had dismissed the application for taking the counter-claim as detailed Written statement vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DRT vide order dated.10-4-2019 and now there is no counter-claim pending. He further submitted that even to trigger the proceeding under section 7 of IBC, it is not necessary to consider whether any dispute is pending or not rather the Financial Creditor has to establish two things i.e. there is a financial debt and there is default in the' payment of financial debt in view of the ' decision of the Hon'ble Supreme Court in Innoventive Industries Ltd. v. ICICI Bank Ltd. [2017] 84 taxmann.com 320/143 SCL 625 He further submitted that the Corporate Debtor has also filed an application for one-time settlement on 15-9-2018, 15-10-2018 and lastly on 15-2-2019. He further submitted that since the matter was pending before the Court of competent jurisdiction, so the contention of the Corporate Debtor that it is barred.d by limitation is not liable to be admitted and the decision on which the Corporate Debtor has placed reliance is not applicable under the facts and circumstances in the case in hand and he also placed reliance upon the decision of the Hon'ble NCLAT passed in Babulal Vardhaji Gurjar v. Veer Gurjar Aluminium Industries (P.) Ltd. [2019] 106 taxmann.com 279/154 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in Mobilox Innovations (P.) Ltd v. Kirusa Software (P.) Ltd. 1 this Court has categorically laid down that IBC is not intended to be substitute to a recovery forum. It is also laid down that whenever there is existence of real dispute, the IBC provisions cannot be invoked. The Corporate Debtor further submitted that without admitting the liability, the Corporate Debtor is always ready to settle the disputes amicably with the bank. 8. Now, in the light of submissions made on behalf of the parties, we shall consider the claim of the parties. 9. We have gone through the averments made in the petition, reply filed by the Corporate Debtor as well as averments made in the rejoinder to the reply filed by the Financial Creditor and the documents enclosed with the petition and on careful perusal of the same, we find that it is not in dispute that the Financial Creditor has sanctioned ₹ 12, 80, 45, 000/-on 12-12-2006 and thereafter a loan agreement was signed on 3-1-2007 between the Financial Creditor and the Corporate Debtor of the aforesaid amount. We further find-that out of aforesaid amount, the part payment of ₹ 2.27 crores only was made but entire amount has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt V. Under Rule 4(3), the applicant is to dispatch a copy of the application filed with the adjudicating authority by registered post or speed post to the registered office of the corporate debtor. The speed within which the adjudicating authority is to ascertain the existence of a default from the records of the information utility or on the basis of evidence furnished by the financial creditor, is important. This it must do within 14 days of the receipt of the application It is at the stage of section 7(5), where the adjudicating authority is to be'satisfied that a default has occurred, that the corporate debtor is entitled 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 in fad 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 7 days of receipt of a notice from the adjudicating authority. Under sub-section (7), the adjudicating authority shall then communicate the order passed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bhai Dave (supra) in the matter of Vashdeo R. Bhojwani (supra) the Financial Creditor placed reliance upon a judgment passed by the Hon'ble NCLAT in the matter of Babulal Vardhaji Gurjar (supra) We have gone through the decisions on which the parties have placed reliance. So far the decision upon which the Financial Creditor has placed reliance is concerned that decision is in respect of. applicability of Article 62 of the Limitation Act and the Hon'ble Apex Court in a decision in Gaurav Hargovindbhai Dave (supra) held that: (6) Having heard the learned counsel for both sides, what is apparent is that Article 62 is out of the way on the ground that it would only apply to suits. The present case being an application which is filed under Section 7, would fall only within the residuary article 137. As rightly pointed out. by learned counsel appearing on behalf of the appellant, time, therefore, begins to run on 21-07-2011 as a result, of which the application filed under Section 7 would clearly be time-barred. So far as Mr. Banerjee's reliance on para 7 of B.K. Educational Services Private Limited (supra), suffice it to say that the Report of the Insolvency Law Commit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stituted and the . day on which it ended shall both be counted; (b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding; (c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction. 13. Mere plain reading of the provision shows that the period during which a party has been prosecuted with due diligence, another proceeding whether in a court of first motion or an appeal or revision against the party that period shall be excluded where the proceeding relates to the same matter in issue and therefore, when we placed reliance upon Section 14 of the Limitation Act, then we are of the considered view that the decision upon which the Ld. Counsel for the Corporate Debtor has placed reliance under the facts and circumstances of the case in hand is not applicable rather in view of the facts discussed by us in the aforementioned para, we are of the considered view that period spent in the proceeding pending before the DRT, DRAT and Hon'ble Delhi High Court is liable to be excluded while computing the period of limitation and when we shall exclude that period then we are of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceeding under section 7 of IBC, we have to see only two things i.e. there is a financial debt and the debt is due. It is of no matter that the debt is disputed. In the light of the decision, when we shall consider that case in hand then we find, the documents and the pleading shows that the financial debt has been given by the applicant to the Corporate Debtor and that has not been repaid, which would also evident from the One Time Settlement Proposal dated 15-9-2018, 15-9-2018 15-2-2019, therefore, in our considered view, in the light of the decision of Innoventive Industries Ltd. (supra) the Financial Creditor has established this fact that there is a financial debt and that has not been paid and so there is default and he is legally entitled to get' that amount. 15. Now, at this juncture, we would like to refer the submissions made on behalf of the ld. Counsel for the Corporate Debtor that since the Bank fails to fulfil its obligations, therefore, in view of the decision Gujarat State Financial Corporation (supra) the application filed by the Financial Creditor is liable to be dismissed. As we have already discussed the decision of the in Innoventive Industries Ltd. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lution process: Provided that where at any time during the corporate insolvency resolution process period, if the Adjudicating Authority approves the resolution plan under sub-section (1) of section 31 or passes an order for liquidation of corporate debtor under section 33, the moratorium shall cease to have effect from the date of such approval or liquidation order, as Che case may be. 17. The Financial Creditor has proposed the name of Mr. Pankaj Khetan as the IRP. His details are as registration No. IBB1/IPA-002/IP-N00010/20l6-17/10014, email:pankaj.khetan@yahoo.com. The consent of the Mr. Pankaj Khetan is on record along with the copy of his certificate and disciplinary proceedings are pending against him. We accordingly confirm his appointment as the IRP. He shall take such other and further steps as are required under the statute, more specifically in terms of Sections 15.17 and 18 of the Code and file his report. 18. The Financial Creditor is directed to deposit a sum of ₹ 2 lakh to meet the immediate expenses of IRP. The same shall be fully accountable by the IRP and shall be reimbursed by the CoC, to the Financial Creditor to be recovered as CIR costs. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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