9911796707
TMI Blog2021 (5) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... along with interest and further charges, less recoveries if any. 2. The averments made in the Application are as follows: (i) The Applicant/Financial Creditor extended various credit facilities to the Corporate Debtor. On 16.02.2007, credit facilities were enhanced to the limit of Rs. 18 crore by this financial creditor and further enhanced to Rs. 57.97 crore on 26.09.2009. (ii) The Corporate Debtor had approached for sanction of credit facilities for their business purpose including for meeting a part of the working capital needs and AXIS Bank vide sanction letter dated 02.11.2009 had sanctioned Working Capital of Rs. 45 crores and a term loan of Rs. 10 crore. At the request of the Corporate Debtor, the Financial Creditor herein and Axis Bank formed a consortium and renewed/modified the existing credit facilities. (iii) The Financial Creditor as leader of the Consortium, issued a sanction letter dated 02.02.2010 for modification of existing credit facilities which was acknowledged by the Corporate Debtor as per the terms and conditions therein. Details of modification of the credit facilities sanctioned by the consortium banks are as follows: (iv) In consideration of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fault. The Financial Creditor in the application has mentioned different date i.e. in Page 531 of Volume-III, NPA is shown as "27.11.2018" whereas in the application NPA is cited as 28.11.2018. It is pertinent to mention here that the "date of default" is crucial to determine the date when the cause of action accrued as held by the Hon'ble Supreme Court in K.D. Sharma Vs. Steel Authority of India Ltd. and Others, 2008 (10) SCALE 227. The date of default has not been mentioned in the present application. 5. The Petitioner who is a lead banker in the consortium has suppressed the default of Axis Bank which is on 10.02.2017 and 90 days prior to this date is the date of actual default which is 12.11.2016 and the date of filing the petition is 19.12.2019. The limitation will start from the date "when the right to apply 'first accrues' which in the present case started on 12.11.2016. Hence, the limitation period for application under Section 7 lapsed on November 2019 i.e. 3 years from the date of default whereas the present application was filed with NCLT on 19.12.2019. Hence, the present petition is not maintainable at all under any provisions of law. 6. We have heard both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioned in the pleadings of the application. It is important that "date of default" ought to be mentioned in the column Part-IV of the application as per the NCLT Rules, 2016. It is clearly in violation of the same. It is very unfortunate to know that a nationalised banker with a huge outstanding Rs. 52,28,93,796/- due and payable and the respondent admitted debt and default, the applicant-bank ought to take bare minimum requirement of filling up the application in the proper format. Inspite of bringing this to the notice of the applicant and the counsel for applicant, we do not find as to why the applicant does not want to rectify the mistake in this column regarding "date of default". This raises a question in the mind, whether are there any collusion between the applicant and the respondent? Be that as it may, since the "date of default" mentioned in the pleadings and also in the documents enclosed along with this application, this Adjudicating Authority inspite of the above observation, allows this application. 9. The learned counsel for the respondent further states that the "date of default" was long before NPA and thereby multiple default has occurred. Hence, counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd similar proceedings. However, the ultimate object of an application under Section 7 or 9 of the IBC is the realization of a 'debt' by invocation of the Insolvency Resolution Process. In any case, since the cause of action for initiation of an application, whether under Section 7 or under Section 9 of the IBC, is default on the part of the Corporate Debtor, and the provisions of the Limitation Act 1963, as far as may be, have been applied to proceedings under the IBC, there is no reason why Section 14 or 18 of the Limitation Act would not apply for the purpose of computation of the period of limitation. 89. To quote V. Sudhish Pai from his book 'Constitutional Supremacy - A Revisit' "Judgments and observations in judgments are not to be read as Euclid's theorems or as provisions of statute. Judicial utterances/pronouncements are in the setting of the facts of a particular case. To interpret words and provisions of a statute it may become necessary for judges to embark upon lengthy discussions, but such discussion is meant to explain not define. Judges interpret statutes, their words are not to be interpreted as statutes." 90. As observed above, unlike stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er till the completion of corporate insolvency resolution process for the purposes referred to in Section 14 of the I&B Code, 2016. We order to prohibit all of the following, namely, (a) the institution of suits or continuation of pending suits or -proceedings against the corporate debtor including execution of any judgement, decree or order in any court of 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 Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002); (d) the recovery of any property by a owner or lessor where such property is occupied by or in the possession of the corporate debtor. (III) That supply of essential goods or services of the corporate debtor, if continuing, shall not be terminated or suspended or interrupted during moratorium period. The provisions of sub-section (1) of Section 14 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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