TMI Blog2020 (12) TMI 319X X X X Extracts X X X X X X X X Extracts X X X X ..... ers, Advocates, SK Jain, Practising Company Secretary and Yahya Batatawala, Advocate ORDER Rajasekhar V.K., Member (J) 1. This is a Company Petition filed under section 7 of the Insolvency Bankruptcy Code, 2016 (IBC) by UCO Bank(Financial Creditor), seeking to initiate Corporate Insolvency Resolution Process (CIRP) against Deegee Orchards Private Limited (Corporate Debtor). 2. The Corporate Debtor is a private company limited by shares and incorporated on 29.05.1997 under the Companies Act, 1913, with the Registrar of Companies, Maharashtra, Mumbai. Its Corporate Identity Number (CIN) is U01100MH1997PTC108323. Its registered office is at Deegee House, Jaistambh Chowk, Rallies Plot, Amravati 444 601, within the State of Maharashtra. Therefore, this Bench has jurisdiction to deal with this petition. 3. The present petition was filed on 11.09.2019 before this Adjudicating Authority on the ground that the Corporate Debtor failed to make payment of a sum of ₹ 43,04,08,269.00 (Rupees forty-three crore four lakh eight thousand two hundred and sixty-nine only) as principal and ₹ 24,68,45,038.28 (Rupees twenty-four crore sixty-eight lakh forty-five thousand a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Corporate Debtor on 29.08.2019. Court Notice dated 24.09.2019 was also issued, which has been served on the Corporate Debtor by registered post on 30.09.2019. Affidavit of service dated 07.10.2019 has been placed on record. 7. Dr SK Jain, learned authorised representative, appeared on behalf of the Corporate Debtor, and made his submissions along with Mr. Yahya Batatawala, learned Counsel. 8. In its reply filed on 04.11.2019 before this Adjudicating Authority, the Corporate Debtor has submitted as follows:- (a) The Corporate Debtor had requested restructuring of its debt vide its letter dated 07.12.2017. There were negotiations held in this behalf. In furtherance thereof, the Financial Creditor advised the Corporate Debtor to make a deposit of ₹ 25.00 lakh into a no-lien account for considering one-time settlement (OTS). (b) The Corporate Debtor arranged for the said deposit from a third party and deposited the same with the Financial Creditor on 01.08.2018, with the understanding that if the OTS was not arrived at, the Financial Creditor would return the amount deposited in the no-lien account. (c) Since the OTS proposal was taking time, the Corp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date on which the right to apply accrues. 15. In Vashdeo R Bhojwani v Abhyudaya Cooperative Bank Limited another, (2019) 9 SCC 158 : (2019) 4 SCC (Civ) 308 the Hon'ble Supreme Court quoted the BK Educational Services (supra)judgment and stated that if the default has occurred over three years prior to the date of filing of the application, the application would be barred under Article 137 of the Limitation Act, save and except in those cases where, in the facts of the case, section 5 of the Limitation Act may be applied to condone the delay in filing such application. 16. In Sagar Sharma another v Phoenix ARC Private Limited another, (2019) 10 SCC 353 the Hon'ble Supreme Court emphasised that the date of coming into force of the IBC does not and cannot form a trigger point of limitation for applications filed under the Code. It further reiterated that since applications are petitions which are filed under the Code, it is Article 137 of the Limitation Act which will apply to such applications. 17. Learned Counsel for the Financial Creditor submitted the Financial Creditor had obtained judgment dated 14.10.2019 in OA No. 115/2015 filed by it against the Corp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Bhunsali another v Kotak Mahindra Bank another, Company Appeal (AT) (Insolvency) No. 1349/2019 decided on 08.01.2020 to support his contention that a one-time settlement proposal given after the period of limitation has expired, cannot be relied upon by the Bank. It is pertinent to mention here that in the present case, as in the case of Munish Kumar Bhunsali (supra), the Financial Creditor did not accept the OTS dated 01.08.2018 given by the Corporate Debtor. Therefore, the judgment in this case rightly comes to the rescue of the Corporate Debtor in the present case also. In any case, even this OTS was submitted well after the period of limitation had come to an end. 21. Learned Authorised Representative for the Corporate Debtor invited our attention to the judgment of the Hon'ble NCLAT in V Hotels Limited v Asset Reconstruction Company (India) Limited, Company Appeal (AT) (Insolvency) No. 525/2019 decided on 11.12.2019 wherein the judgment of the Hon'ble Supreme Court was referred to in support of the contention that any document or acknowledgement after the completion of the period of limitation cannot be relied upon. Further, in the absence of any record of ack ..... X X X X Extracts X X X X X X X X Extracts X X X X
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