9911796707
TMI Blog2021 (4) TMI 890X X X X Extracts X X X X X X X X Extracts X X X X ..... and Bankruptcy Code, 2016 (for brevity 'I & B Code') r/w. Rule 11 of NCLT Rules, 2016 and Section 420 of the Companies Act, 2013 praying the Tribunal- i. To review the application filed vide CP (IB) No. 681/7/HDB/2018 under Section 7 of the I & B Code, 2016 and dismiss the application as the same is barred by limitation; and ii. To declare all further proceedings which were held based on the order of CIRP as infructuous. 2. The averments made in the Interlocutory Application filed by the Applicant/Petitioner are briefly described hereunder: i. It is averred the Financial Creditor/Punjab National Bank filed a Company Petition bearing CP(IB) No. 681/7/HDB/2018 against the Corporate Debtor/M/s. Sri Guruprabha Power Limited under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en note of the default date as stated in Part IV Clause (2) of the relevant application filed by the Financial Creditor under Section 7 r/w Rule 4 of the I 85 B Code, 2016 wherein the date of default mentioned as 31.05.2011. A copy of Form-I filed by the Financial Creditor is enclosed as Annexure-III of the application and accordingly, this application is ought to have been dismissed since it is barred by limitation. v. It is averred that the Impugned Order dated 20.09.2019 states in para 2(f) "it is averred that the Financial Creditor issued a Demand Notice dated 14.06.2018 calling upon the Corporate Debtor to pay the outstanding balances and dues mentioned in the said notice as Corporate Debtor committed default. Hence this application" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under Section 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, accrues when a default occurs. 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". ix. He relied on the Order dated 25.09.2019 issued by the Hon'ble Supreme Court of India in the matter of Jignesh Shah & Anr. Union of India in para 30 held that "Whereas, in Form-1, upon transfer of the winding up proceedings to the NCL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of law of limitation over the proceedings under the Code". xii. It is also relied on the order issued by Hon'ble NCLAT in the matter of Bank of India & Central Bank of India vs. Coastal Oil Gass Infrastructure Pvt. Ltd. held as shown at para 15 page 8 of the application. xiii. It is further relied on the order issued by Hon'ble NCLAT in the matter of Bimalkumar Manubhai Savalia vs. Bank of India held as shown at para 16, page 9 of the application. xiv. It is further relied on the order issued by Hon'ble NCLAT in the matter of Reliance Asset Reconstruction Company Ltd. vs. Hotel Poonja International Pvt. Ltd. held as shown at para 17, page 9 of the application. xv. It is averred that going by the above citations, it is cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Tribunal issued an order dated 22.02.2021 for liquidation of the Corporate Debtor 5. The counsel for Applicant relied on the following decisions of the Hon'ble Supreme Court of India and Apex Court: i. Order issued by the Hon'ble Supreme Court of India in the matter of M/s. B.K. Educational Services Pvt. Ltd. vs. Paras Gupta & Associates (2019) 11 SCC 633 held as shown in para 11, page 7 of the application; ii. Order dated 25.09.2019 issued by the Hon'ble Supreme Court of India in the matter of Jignesh Shah & Anr. Union of India held as shown in para 12, page 7 & 8 of the application; iii. Order dated 30.09.2019 issued by the Hon'ble Supreme Court of India in the matter of Sagar Sharma & Anr. vs. Phonix PRC Pvt. L ..... X X X X Extracts X X X X X X X X Extracts X X X X
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