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TMI Blog2020 (10) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... y Resolution Process (CIRP) as against the Corporate Debtor M/s. Jotisriram Himghar Private Limited, on the allegation that the Corporate Debtor who availed various loans to the tune of Rs. 988.75 lakh by executing various documents inclusive of Demand Promissory Notes, Agreement of Term Loan, Agreement of hypothecation etc., of which particulars are given in Form I, Part IV, committed default in repayment and thereby the Financial Creditor classified the accounts of the Corporate Debtor as Non Performing Assets with effect from 30.06.2016 and thereby committed default in repayment and accordingly filed this application for initiating Corporate Insolvency Resolution Process. 2. To add strength to the said contentions, the Loan Agreement an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and ought to be dismissed with cost. 4. The Financial Creditor has filed rejoinder denying the averments in the reply affidavit of the Corporate Debtor and reiterated the particulars mentioned in the Form No. I and further would submits that the Corporate Debtor from time to time had acknowledged the debt by executing letter confirming the balances under the credit facility availed by them and also submitted the audited report dated 05.09.2016 and in the said balance sheet they also acknowledged and admitted the bank dues and the said documents were annexed with the application and therefore this application is liable to be admitted. 5. Heard both sides. Perused the documents and the citations referred to on the side of the Corporate De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dule mentioned in the Sanction letter referred to above. It is in this background the Financial Creditor has issued demand notice on 12.07.2016 recalling the entire loan amount aggregating to Rs. 9,98,83,000/- (Rupees Nine Crore Ninety Eight Lakh Eighty Three Thousand Only) classifying the account stand in the name of the Corporate Debtor as Non Performing Assets with effect from 30.06.2016. 8. Despite the demand, the Corporate Debtor has not paid the amount. So according to the Ld. Counsel for the Financial Creditor the default has been committed by the Corporate Debtor as on 30.06.2016 and therefore filing of this application on 25.01.2019 is well within the period of limitation and accordingly this application is liable to be admitted. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be on 27.03.2015 and not on 30.06.2016. If it is so, filing of this application on 25.01.2019 is barred by limitation. 10. Refering to B.K. Educational Services Pvt. Ltd. v. Parag Gupta and Associates, MANU/SC/1160/2018 the Ld.counsel for the CD submits that Article 137 of Limitation Act is applicable to the applications filed under section 7 of the Code, and if the period of limitation is counted from 27.03.2015 the filing of this application is barred by limitation. He further would take me to Para 27 which read as under:- "27. The Limitation Act is applicable to applications filed Under Sections 7 and 9 of the Code from the inception of the Code, Article 137 of the Limitation Act gets attracted. "The right to sue", therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on on the side of the CD. 12. The application is otherwise complete. All the requirements to be meted out under Section 7(3) of the Code seen produced in the case in hand. The Financial Creditor has proposed the name of Shri Shyamal Kumar Bhattacharjee, as the Insolvency Professional to be appointed for initiating the CIRP. The Form 2 and written communication dated 08.11.2018 produced along with the application by Shri Shyamal Kumar Bhattacharjee proves that no disciplinary proceeding is pending against him and he is eligible to be appointed as an IRP. 13. The Financial Creditor being succeeded in proving that all the requirements to be meted out under Section 7(3) of the Insolvency & Bankruptcy Code, 2016 has been meted out and that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nancial 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 the possession of the corporate debtor. iv) The supply of essential goods or services to the corporate debtor as may be specified shall not be terminated, suspended, or interrupted during moratorium period. v) The provisions of sub-section (1) shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. vi) The order of moratorium shall have effect from the date of admission till the completion of the corporate insolvency resolution process. vii) Provided that where at any time during the Corpo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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