TMI Blog2021 (5) TMI 539X X X X Extracts X X X X X X X X Extracts X X X X ..... Company. Therefore, from 31.03.2017 a fresh period of limitation of 3 years commences which would end on 30.03.2019. Since the present Petition was filed on 09.03.2020 it is within the period of limitation as prescribed under Section 19 of the Limitation Act. The Petitioner has not received the outstanding Debt from the Respondent and that the formalities as prescribed under the Code have been completed by the Petitioner, we are of the conscientious view that this Petition deserves 'Admission'. Petition admitted - moratorium declared. - CP No. 1072/(IB)-MB-V/2020 and IA 317 of 2021 in CP 1072 of 2020 - - - Dated:- 16-4-2021 - Suchitra Kanuparthi, Member (J) And Chandra Bhan Singh, Member (T) For the Appellant : S. Raghunath, CA For the Respondents : G Anirudh Purusothaman, Adv. ORDER Chandra Bhan Singh, Member (T) 1. The Petitioners/Applicant viz. 'Samata Nagari Sahkari Patsanstha Maryadit, Kopargaon' (hereinafter as Petitioner) has furnished Form No. 1 under Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (hereinafter as Rules) in the capacity of Financial Creditor by invoking the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... debts the Petitioner file this Petition u/s. 7 of the IBC as a Financial Creditor for initiating the Corporate insolvency Resolution process (CIRP). SUBMISSIONS BY THE CORPORATE DEBTOR: 14. The Corporate Debtor submits that the Petitioner has no authority to file this Petition in this Hon'ble Tribunal as the Petitioner is a cooperative society and disputes regarding the co-operative society are resolved as per Section 72 of the Maharashtra Cooperative Societies Act 1960. 15. As per the petition filed by the Petitioner the date of default is 01.02.2016 and the petition was filed on 09.03.2020, thus it is filed beyond the period of three years and deserves to be dismissed on this ground. 16. The Petitioner relied upon the letter dated 23.07.2019 addressed by the Corporate Debtor to the Hon'ble Commissioner, Cooperative Department of Maharashtra is the acknowledgment of the debt by the Corporate Debtor but the Corporate Debtor submits that this particular letter had only apprised the Hon'ble Commissioner regarding the availment of loan by the Corporate Debtor along with other associates and directors, this is not an acknowledgment of debt. 17. The direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 09.03.2020. 21. The Respondent, Yeshodeep Infrastructure Private Limited has filed its reply dated 21.01.2021 where inter alia he has raised the issue that this Petition is barred by 'limitation'. On the aspect of 'maintainability', the Respondent has filed a separate IA No. 317/2021 in the present CP. The Bench notes that the contents of the IA 317/2021 and that of the reply dated 21.01.2021 are almost similar. In fact, all the issues which it has brought in its reply are the same as given in the said IA. 22. This Bench would like to deal with the issue of 'maintainability' first. The contention of the Corporate Debtor in this regard is that this Petition has been filed on 09.03.2020 whereas the date of default of debt being 01.02.2016. Therefore, as per the Corporate Debtor, more than three years have passed. The Corporate Debtor mentions that the reliance of the Petitioner on the letter of Respondent to the Commissioner of Co-operative Department of Maharashtra dated 23.07.2019 as an acknowledgment of the debt by Respondent cannot be construed as an acknowledgment of the debt by the Respondent. The Bench in this regard notes that Section 18 of the L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on account of a debt or interest before expiration of the prescribed period by the person liable to pay, a fresh period of Limitation shall be computed from the time when the payment was made. The date of NPA will not shift. It will remain the foundational date and Period of Limitation gets triggered from that date. But when prescribed period is computed in accordance with the Limitation Act and facts of this matter, Section 18 and 19 do appear to be attracted. Further para 26 and 27 of the same judgment are as under: 26. If the Corporate Debtor made some payments, as a reasonable prudent person, Bank received the payments. Section 19 of the Limitation Act, 1963 is not subject to any qualification/exception that after Account is declared NPA, if the debtor makes payments on account of debt, the Section would not be applicable. The Adjudicating Authority found that there were not merely repayments but also Acknowledgments. 27. For the above reasons, we do not find that the Adjudicating Authority erred in its observations as recorded in Paragraph 11 of the Impugned Order to hold that the Application was within Limitation. 11 The Bench therefore, has no doubt in i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or of the Respondent Jaya A Garad has signed and stamped the voucher. The Bench, therefore, is of the view that this fulfills the requirement of an acknowledgment in writing and duly signed. The provision of Section 19 of the Limitation Act 1963 requires an acknowledgment of the payment in some form of writing, either in the handwriting of the payer himself or signed by him. Therefore, this Bench is convinced that the requirement of acknowledgment by the signing of the payer has been duly met in this case. 28. Though the provision of Sec. 19 of Limitation Act, 1963 is met here, the Bench takes note of the fact that in the present age of digital payments very few payments would be accompanied by a handwritten and signed note. It is mostly accomplished by the transfer of an amount from one bank account to the other through a digital format. All the banks in this regard require a borrower to have the saving/current account in the bank before a loan is disbursed and the transfer of funds might be repayment of the loan from saving/current bank account to the loan account on a periodic basis as per the terms of the loan regarding disbursement. In fact, in most of the cases, one of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in any case, cannot be an authentic ground for dismissing the Petition. This can be no ground for dismissing the Petition as what the Bench is supposed to look into is that whether there is a 'financial debt' in terms of Section 5(8) of IBC and whether there is a 'default' in terms of 3(12) of the IBC. The Respondent mentioned that they have been cheated by the Director of the Applicant Company, as the said Director had induced the Respondent to part with ₹ 98,58,000/- on the day when the loan was disbursed on 01.01.2016. The Bench notes that the Director of the NBFC and the NBFC itself are two different entities and are independent. Any transaction made between the Respondent with an individual Director, even if it is correct, cannot form the basis for Admission or Rejection of an Application under IB Code. The Petitioner denies this allegation of the Corporate Debtor. In any case, the Bench notes that the complaint filed by the Respondent against the Applicant was withdrawn by the Respondent vide a letter dated 23.07.2019 addressed to Commissioner, Co-operative Department of Maharashtra, Mumbai. 31. The Respondent mentioned that the Loan Agreement has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing admitted the Petition/Application, the provisions of Moratorium as prescribed under Section 14 of the Code shall be operative henceforth with effect from the date of order and shall be applicable by prohibiting institution of any Suit before a Court of Law, transferring/encumbering any of the assets of the Debtor etc. However, the supply of essential goods or services to the Corporate Debtor shall not be terminated during the Moratorium period. It shall be effective till completion of the Insolvency Resolution Process or until the approval of the Resolution Plan prescribed under Section 31 of the Code. 37. That as prescribed under Section 13 of the Code on the declaration of Moratorium the next step of Public Announcement of the Initiation of Corporate Insolvency Resolution Process shall be carried out by the IRP immediately on appointment, as per the provisions of the Code. 38. That the Interim Resolution Professional shall perform the duties as assigned under Section 18 and Section 15 of the Code and inform the progress of the Resolution Process and the compliance of the directions of this Order within 30 days to this Bench. A liberty is granted to intimate even at an ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
