9911796707
TMI Blog2019 (10) TMI 1362X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Creditor (The Power of Attorney is annexed as annexure 1 of the Application). 3. The Respondent M/s. Amitech Textiles Limited, incorporated on 21.05.1992 (Having its Registered Office at. Arazi No. 153, Khanchandrapur Barak, Raina, NH-2, Kanpur Dehat-209311; CIN UI7115UP1992PLC014385). The authorised share capital of respondent is Rs. 3,00,00,000/- (Rupee Three Crores Only) and Issued Subscribed and Paid-Up share Capital is Rs. 1,80,51,750/- (Rupee One Crore Eighty Lakh fifty-one thousand Seven Hundred and Fifty Only). 4. Brief facts related to petition are as follows: i. The learned counsel for the applicant submitted that earlier the name of the corporate debtor was M/s. Amitech Industries Ltd. The name of the corporate debtor has changed from M/s. Amitech Industries Ltd to M/s. Amitech Textiles ltd w.e.f. 20.08.2013 vide Resolution dated 06.09.2013. It was resolved that information regarding change of name of corporate debtor be provided to the entire Government Departments as well as to the customers and suppliers. (The copy of the Certificate of incorporation upon change of name in terms of Sec 21 of The Companies Act, 1956 is annexed as Annexure 3 of the Application). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hin limitation. He further stated that the financial facilities have been availed by the Corporate Debtor on the basis of the mortgage of immovable Assets. The Corporate Debtor had executed loan documents and mortgage documents on 06.04.2010, 22.06.2012 and 20.03.2013. Therefore, to enforce payment of money secured by a mortgage or otherwise charged upon immovable property, the limitation period being 12 years, hence, the application is within limitation with regard to mortgage also. viii. In the counter affidavit filed by the Corporate Debtor, the learned counsel submitted that the entire properties of the Corporate Debtor are in the hands of the Financial creditor and physical possession of the properties have already been taken by the Financial creditor and the order of Hon'ble DRT (Allahabad bench) is an ex-parte order and the same has been challenged by the Corporate Debtor before the DRT. ix. In reply to the Counter affidavit, the learned Counsel for the applicant submitted that if the bank has not complied the provisions of the SARFAESI Act, 2002 in taking physical possession of the property of the Corporate Debtor, then Corporate Debtor was free to challenge the ill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mined the ground mentioned in the counter affidavit along with the provisions contained Under Section 7 of IB Code. The relevant provision of Section 7(1), (2), (3) as quoted below: Section 7: Initiation of corporate insolvency resolution process by financial creditor: (1) A financial creditor either by itself or jointly with [other Financial creditors, or any other person on behalf of the financial creditor, as may be notified by the Central Government] may file an application for initiating corporate insolvency 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 subsection (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of financial debt, the adjudicating authority has merely to see the records of the information utility or other evidence produced by the "financial creditor" to satisfy itself that a default has occurred. Other considerations, such as the existence a dispute or discrepancy are irrelevant, so long it has not been disputed the same debt is due and is payable to the financial creditor and the corporate debtor has defaulted." 11. Further, it is matter of record that the statement of account which has been filed shows that on 03.10.2016 an amount of Rs. 3,00,000 has been deposited and the Applicant/Financial Creditor has filed this application on 30.11.2018, 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 Sec 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 afresh period of lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal No. 4952 of 2019 dated 18.09.2019 in para 6 held that: "...........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." 15. From the perusal of Article 62 of The Limitation Act as well as the decision referred it appears to this Adjudicating Authority that 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 the 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 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 affida ..... X X X X Extracts X X X X X X X X Extracts X X X X
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