TMI Blog2020 (5) TMI 269X X X X Extracts X X X X X X X X Extracts X X X X ..... thority that it is admitted position of law that subsequently if any payment is made by the borrower then the limitation shall run from the date when the last amount was paid by the corporate debtor. There-fore, this Adjudicating Authority finds force in the contention of the submission placed by learned counsel for the petitioner, that this case comes under section 19 of the Limitation Act. It is admitted position of law that article 62 will not apply to the applications filed under section 7 of the Insolvency and Bankruptcy Code, 2016 rather it would fall only under article 137 of the Limitation Act. Therefore, this Adjudicating Authority does not finds force in the contention of the submission placed by learned counsel for the petitioner, that this case comes under article 62 of the Limitation Act - In counter affidavit filed by the respondent and reply to the counter affidavit filed by the petitioner, this Adjudicating Authority finds, the corporate debtor in the counter affidavit admits the debt and his only grievance is the entire properties of the corporate debtor are in hands of the financial creditor. The application filed on behalf of the financial creditor/applican ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... solved that information regarding change of name of the corporate debtor be provided to the entire Govern ment Departments as well as to the customers and suppliers. (The copy of the certificate of incorporation upon change of name in terms of section 21 of the Companies Act, 1956 is annexed as annexure 3 of the application). (ii) He further submitted that the corporate debtor vide resolution dated June 4, 2007 had approached the financial creditor for grant of credit facilities and authorized Mr. Anil Kumar Pandey, the managing director to execute the documents and to execute any acknowledgment for confirmation of debts and or security which may be required by the financial creditor and also to execute the relevant documents pertaining to enhancement to cash credit (hypothecation of stocks) account limit from ₹ 400 lakhs to ₹ 550 lakhs and to extent of equitable mortgage created in favour of the financial creditor. (iii) He further submitted that on November 8, 2013 the corporate debtor had acknowledged all the existing credit facilities from the financial creditor in the name of M/s. Amitech Industries Ltd., now stand transferred in the name of M/s. Amitech Text ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and physical possession of the properties have already been taken by the financial creditor and the order of the hon'ble Debts Recovery Tribunal (Allahabad Bench) is an ex parte order and the same has been challenged by the corporate debtor before the Debts Recovery Tribunal. (ix) In reply to the counter-affidavit, learned counsel for the applicant submitted that if the bank has not complied the provisions of the SAR FAESI Act, 2002 in taking physical possession of the property of the corporate debtor, then the corporate debtor was free to challenge the illegality committed by the bank before the hon'ble Debts Recovery Tribunal. And the corporate debtor had failed to repay the dues of the financial creditor despite repeated demands and order passed by the hon'ble Debts Recovery Tribunal. Further submitted that the corporate debtor had never challenged the decree passed by the hon'ble Debts Recovery Tribunal, which attained finality against the corporate debtor. (x) Further learned counsel in reply to the counter-affidavit submitted and prays that the application filed under section 7 of the IBC deserves to be admitted as the corporate debtor had acknowledged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... solvency resolution process against a corporate debtor before the Adjudicating Authority when a default has occurred. Explanation.-For the purposes of this sub-section, a default includes a default in respect of a financial debt owed not only to the applicant-financial creditor but to any other financial creditor of the corporate debtor. (2) The financial creditor shall make an application under sub-section (1) in such form and manner and accompanied with such fee as may be prescribed. (3) The financial creditor shall, along with the application furnish- (a) record of the default recorded with the information utility or such other record or evidence of default as may be specified ; (b) the name of the resolution professional proposed to act as an interim resolution professional ; and (c) any other information as may be specified by the Board. 8. Mere plain reading of the provision shows that in order to make an application under section 7(1) the financial creditor/petitioner is required to establish : (a) Whether there is duly established financial debt ? (b) Whether there is default in payment by the corporate debtor ? (c) Whether the documents attac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... debtor has defaulted. 11. Further, it is matter of record that the statement of account which has been filed shows that on October 3, 2016 an amount of ₹ 3,00,000 has been deposited and the applicant/financial creditor has filed this application on November 30, 2018, and on this the learned counsel for the petitioner submitted that this petition is covered by section 19 of the Limitation Act. Therefore, at this juncture I would like to refer section 19 of the Limitation Act which is as quoted below : 19. Effect of payment on account of debt or of interest on legacy.- Where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly authorised in this behalf a fresh period of limitation shall be computed from the time when the payment was made : Provided that, save in the case of payment of interest made before the 1st day of January, 1928, an acknowledgment of the payment appears in the handwriting of or in a writing signed by, the person making the payment. Explanation.-For the purposes of this section,- (a) where mortgaged land is in the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r it would fall only under article 137 of the Limitation Act. Therefore, this Adjudicating Authority does not finds force in the contention of the submission placed by learned counsel for the petitioner, that this case comes under article 62 of the Limitation Act. 16. Therefore, in view of the aforesaid decisions, I would like to consider whether the petitioner has succeeded in establishing the fact that there is financial debt or default in part of corporate debtor in making payment of debt. 17. From the perusal of averments made in the application filed on behalf of petitioner, in counter affidavit filed by the respondent and reply to the counter affidavit filed by the petitioner, this Adjudicating Authority finds, the corporate debtor in the counter affidavit admits the debt and his only grievance is the entire properties of the corporate debtor are in hands of the financial creditor. 18. Hence, the application filed on behalf of the financial creditor/applicant under section 7 of the IBC is found complete and it is within limitation. It further appears that there is default in non-payment of the debt owed by the corporate debtor, the applicant has annexed sufficient ev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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