9911796707
TMI Blog2019 (9) TMI 1388X X X X Extracts X X X X X X X X Extracts X X X X ..... t, I and B Code) against Kalpataru Cold Storage P. Ltd.-corporate debtor to start the corporate insolvency resolution process (in short, "ClRP") of the corporate debtor as the corporate debtor committed default in paying the financial debt of Rs. 21,61,12,013. 2. The following facts are not in dispute. 3. By a loan sanction letter dated March 28, 2019 United Bank of India granted and disbursed loan of Rs. 12.26 crores to the corporate debtor. The corporate debtor executed demand promissory notes and other documents, having availed the loan. The loan was not repaid as agreed by the corporate debtor. Hence, on March 31, 2014 the loan account was declared to be a NPA by the United Bank of India. 4. On March 29, 2014 the bank assigned the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke cognizance of this proceeding. The proceeding is not maintainable and may be dismissed. 8. We heard learned counsel for the financial creditor and the corporate debtor at length. Learned counsel for the corporate debtor brought to our notice the deed of assignment but he argued that it is not properly stamped. It has not been duly registered. Deed is not legal and it is invalid. It cannot be said that by virtue of such deed, debt is legally assigned or transferred in favour of the applicant. The applicant is not a financial creditor within the meaning of section 5(7) of the I and B Code. 9. He further contended that according to the applicant the debt became due upon declaring the loan account to be a NPA by the bank. That date is Marc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the applicant cannot be financial creditor within the meaning of section 5(7) of the IBC as the deed of assignment is legal and valid. Section 5(7) of the IBC defines the financial creditor that, "'financial creditor' means any person to whom a financial debt is owed and includes a person to whom such debt has been legally assigned or transferred to" ; The law requires that there must be legally assignment of debt. Hereinbefore us the deed of assignment is produced as annexure P3. We find that it is prepared on stamp paper of Rs. 100. It has been registered duly before the Registrar of Assurance, Kolkata. Prima facie, we hold that it is legal and valid deed of assignment of debt. If, at all, it is on insufficient stamp paper, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing thereby. However, it is difficult for us to accept this submission. Very recently, the apex court in the case of Gaurav Hargovindbhai Dave v. Asset Reconstruction Co. (India) Ltd. [2019] 8 Comp Cas-OL 250 (SC) (Civil Appeal No. 4952 of 2019) has held that (page 253) : "Having heard 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 July 21, 2011 as a result of which the application filed under section 7 would clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that they have to pay the debt of United Bank of India. Their account is declared as a NPA. In short, in the year 2016, the corporate debtor in its balance-sheet acknowledged the debt to be payable by them which is claimed herein by the financial creditor. This acknowledgment of debt in its balance-sheet by the corporate debtor in the year 2016 has brought the claim of financial creditor within period of limitation. It is filed well within period of limitation. We hold that the debt is not time-barred. We answer point No. 2 in the negative. 17. Coming back to other facts that there is no dispute that the corporate debtor is liable to pay debt more than Rs. 21 crores. It is also not in dispute that the corporate debtor has committed default ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f law, Tribunal, arbitration panel or other authority ; (b) Transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein ; (c) Any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002) ; (d) The recovery of any property by an owner or lessor where such property is occupied by or in possession of the corporate debtor. (iv) The supply of essential goods or services to the corporate debtor as may be specified shall not be term ..... X X X X Extracts X X X X X X X X Extracts X X X X
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