TMI Blog2018 (5) TMI 1996X X X X Extracts X X X X X X X X Extracts X X X X ..... Application admitted - moratorium declared. - CP (IB) NO. 221/KB/2018 - - - Dated:- 8-5-2018 - Shri Jinan K.R., Hon'ble Member (Judicial) And Shri Madan B. Gosavi, Hon'ble Member (Judicial) Mr. Udit Agarwal, Advocate For the Financial Creditor. Mr. Rashmi Kedia, Advocate For the Corporate Debtor. ORDER Shri Jinan K.R., Member (J). 1. This is an application filed by the Financial Creditor namely Rakesh Pandey for initiating Corporate Insolvency Resolution Process under Section 7 of the Insolvency and Bankruptcy Code, 2016 (in short, I B Code) read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (in short, the Rules) in respect of Corporate Debtor/ JHV Distilleries and Sugar Mills Ltd. The Financial Creditor has also proposed the name of Mr Alok Kumar Kuchhal as Interim Resolution Professional (IRP) having registration No. IBBl/lPA-002/IP- N00114/2017-2018/10284 who had duly submitted the Form 2 which is annexed as Annexure '1 to the Application. 2 The present application is filed on the basis of default in payment of the debt due to the Financial Creditor till date. The total amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Creditor was to be repaid by the Corporate Debtor subject to the availability of the funds. The Corporate Debtor further alleged that there was no default in repayment of the loan as there was no specified date as to when the amount becomes due and payable. The application is liable to be dismissed since the applicant is guilty of gross suppression of material facts. Though BIFR sanctioned a scheme for rehabilitation of CSWL to a Company Gangotri Enterprises Ltd, the sanctioned scheme could not be implemented due to financial difficulties. The debt allegedly due to the applicant is not a financial debt within the meaning of l B,Code. Since there is no default as per section 3(12) of the Code an application of this nature also not maintainable. Upon the above said contentions the respondent prays for dismissal of the application. Heard Ld. Counsel on both sides. Perused the records. 7. The applicant/financiaI creditor filed this application contending that an amount of ₹ 2,21,00,000/- (Rupees Two Crores Twenty-one lakhs only) was granted to the respondent as a loan at simple interest at 12% p.a agreeing to repay the amount with interest within one month from the date o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he date of default was 22.12 2012 and according to the applicant the period of repayment was extended in the year 2005 and demanded the amount on 05.05.2015 But, no document produced to prove that the period of repayment was extended as alleged. However, the Cd. Counsel for the applicant submits that there is acknowledgement so as to save limitation and limitation if any started from the said date as per Section 18 of the Limitation Act, 1963 since the debt was acknowledged by the Corporate Debtor on that date itself. There is a clear written acknowledgement of the default amount and a promise to pay the same along with interest in the letter dated 22.12.2012 argued by the Cd. Counsel for the applicant. 11 As per section 18 of the Limitation Act, 1963, it is clear that acknowledgement of the debt can provide for a fresh period of limitation provided the acknowledgement is made before the expiration of the prescribed period of limitation. However, in circumstances where the acknowledgement is made beyond the period of limitation a reference should be made to Section 25 (3) of the Indian Contracts Act, 1872. Relevant portion of the provision is produced hereunder: 25. Agree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d para 13 of the above cited decision. It read as follows Having heard the parties, this Court is of the opinion that the petitioning-creditor has to satisfy the Court that the debt on which the petition is based was due and payable on the date of the petition. Certainly, a time barred debt cannot be the basis of a winding up petition However, admission of a debt either in a balance sheet or in the form of a letter duly signed by the respondent, would amount to an acknowledgement, extending the period of limitation. Section 18(1) of the Limitation Act, 1963 reads as under: 18. Effect of an acknowledgement in writing. (1) Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgement of liability in respect of such property or right has been made in writing signed by the patty against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgement was so signed. 18. Moreover, as in a winding up petition, a disputed question of fact cannot be adjudicated, this Court has to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the records we are also satisfied that this application is complete as per section 7(5) (a) of the I B code. The applicant proposes Mr. Alok Kumar Kuchhal, C.S., address: C-154, Sector 51, Noida-201 301 (Mobile No.9810894275) e-mail: csaloknoida@gmail.com as an insolvency professional and produced Form2 along with written communication. The written communication includes a certificate to the effect that no disciplinary proceedings is pending against him. Accordingly, this application is liable to be admitted under section 7 of the I B Code. ORDER (i) The petition filed by the Financial Creditor under Section 7 of the Insolvency Bankruptcy Code, 2016 is hereby admitted for initiating the Corporate Insolvency Resolution Process in respect of JHV Distilleries and Sugar Mills Limited. Moratorium order is passed for a public announcement as stated in Sec. 13 of the IBC, 2016 (ii) The moratorium is declared for the purposes referred to in Section 14 of the Insolvency Bankruptcy Code, 2016. The IRP shall cause a public announcement of the initiation of Corporate Insolvency Resolution Process and call for the submission of claims under Sec 15 The public announcement referr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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