TMI Blog2021 (8) TMI 1279X X X X Extracts X X X X X X X X Extracts X X X X ..... cut-off date under the Assignment Agreement was 31.08.2014. Under this agreement all benefits pertaining to the loans availed by the Corporate Debtor including all realization and recoveries made on and after the cut-off date were to be for the benefit of the Financial Creditor i.e., Reliance Asset Reconstruction Company Ltd. The debt due from the Corporate Debtor to the original lender were assigned by the original lender to the Financial Creditor vide Assignment Agreement with effect from 31.08.2014. In such event the bench would construe that, any debt which may be due from the Corporate Debtor to the Financial Creditor ought to be reflected in the books of the Financial Creditor. However, a perusal of Exhibit B and C of Company Petition shows that the amount outstanding and payable by the Corporate Debtor as on 31.08.2014 is reflected in the ledger account of a completely third party i.e., Kotak Mahindra Bank about which, the bench notes, no reference has been made by the Financial Creditor in the Company Petition. It is very evident to this bench that this debt does not appear in the books of the Financial Creditor who has filed this Petition. The Bench also notes th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the bench is inclined to dismiss it. Petition dismissed. - C.P.(IB)-1864/MB/2019 - - - Dated:- 13-8-2021 - Hon ble Member (Judicial) : Shri H V Subba Rao and Hon'ble Member (Technical) : Shri Chandra Bhan Singh. For the Petitioner : Mr. Akshay Puranik, Advocate For the Respondent : Mr. Dinyar Madan, Advocate ORDER Per: Chandra Bhan Singh, Member (T). 1. This Application has been filed by the Applicant M/s. Reliance Asset Reconstruction Company Ltd, u/s 7 of the Insolvency Bankruptcy Code, 2016 in Form No.1 to initiate Corporate Insolvency Resolution Process against M/s. Narendra Plastics Pvt. Ltd., Mumbai (Corporate Debtor), for a debt amount of ₹ 24,18,98,838.81 as on 28.02.2019. The loan amount was assigned by the Original Lender M/s. ING Vysya Bank Ltd vide a Registered Deed of Assignment dated 19.09.2014 to the Applicant herein, i.e., Reliance Asset Reconstruction Ltd. 2. A brief history of the matter is as follows:- In the National Company Law Tribunal Submission by the Applicant: 2.1. On 03.09.2012, M/s. ING Vysya Bank Ltd. (Original Lender) sanctioned a loan of ₹ 20 crores for working capital requirement o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 114.84 Penal : ₹ 4,76,344.21 Total : ₹ 91,93,472.58 Aggregate of I + II above = ₹ 24,18,98,838.81 as on 28.02.2019. 2.5 According to the Applicant, the date of NPA is 30th June, 2014. Submissions by the Respondent:- 3. The Corporate Debtor submitted that ING Vysya Bank (Original Lender) accorded sanction for a facility with a limit of ₹ 10 crore which is inclusive of Cash Credit facility, a Working Capital demand Loan and One-time counter guarantee facility with certain sub limits. The Corporate Debtor further submitted that the Original Lender (Vysya Bank) also had accorded sanction for an additional facility of ₹ 10 crores for Inland Letter of Credit/ Foreign Letter of Credit facility including Bank Guarantee and Counter Bank Guarantee with certain sub limits. An additional facility of ₹ 5 crores towards Financial Market Limits facility for the purpose of hedging of transactions was also sanctioned. These were sanctioned to meet the working capital requirement. The tenor was specified to be 180 days from the date of disbursement. The Facility ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r stated that the Original Lender was merged with Kotak Mahindra Bank Limited (Kotak) with effect from 01.04.2015. 4. The Petitioner issued notice under Sec. 13(2) of the SARFAESI Act, 2002 on 25.05.2015 and the Corporate Debtor also responded to these notices. 5. The Respondent submitted that on 02.12.2016, the Financial Creditor had filed Original Application with the DRT (OA 96 of 2017) in which the Financial Creditor pleaded that the fresh period of limitation began from the last date of sanction i.e. 7th Oct. 2013. 6. The Corporate Debtor/ Respondent vehemently pleaded that the limitation is to be considered from the date of default and relied upon the Hon ble Supreme Court Judgment in the case of BK Educational Services Private Limited v Parag Gupta Associates (CIVIL APPEAL No.23988 OF 2017) which has categorically laid down the law in respect of applicability of Limitation Act, 1963 in relation to the Code. 6.1. The Corporate Debtor has further submitted that Article 137 of the Limitation Act stipulated that the period of limitation is 3 years from the date of default and if the application was not preferred within such prescribed period of limitation, the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the present Company Petition did not include any documents to indicate whether the purported debt allegedly payable by the Corporate Debtor is due in the books of the Financial Creditor. Therefore, the Corporate Debtor strongly pleaded that in such an event that the alleged debts are owed to Kotak, the Company Petition ought to have ben filed by Kotak and not the Financial Creditor. The Financial Creditor has not given any explanation in its pleadings as to why the debt is reflected in the books of account of Kotak. Finally, the Corporate Debtor pleaded that since there is no debt that appeared to be due from the Corporate Debtor to the Financial Creditor, the instant Company Petition is not maintainable and that the Financial Creditor has no locus to file the Company Petition as it did not fulfil the requirement of a Financial Creditor u/s 5(7) of the Code and requested to dismiss the Company Petition. FINDINGS 7. This Petition has been filed by Reliance Asset Reconstruction Ltd (Financial Creditor) against Narendra Plastics Pvt. Ltd (Respondent/ Corporate Debtor) u/s.7 of the IBC for working capital loan of ₹ 20 crore sanctioned by ING Vysya Bank Ltd. (original ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ought to be reflected in the books of the Financial Creditor. However, a perusal of Exhibit B and C of Company Petition shows that the amount outstanding and payable by the Corporate Debtor as on 31.08.2014 is reflected in the ledger account of a completely third party i.e., Kotak Mahindra Bank about which, the bench notes, no reference has been made by the Financial Creditor in the Company Petition. The Exhibit B and C in this regard produced in this Petition by the Financial Creditor is as under:- 10. It is very evident to this bench that this debt does not appear in the books of the Financial Creditor who has filed this Petition. The Bench also notes that the original lender i.e., ING Vysya Bank got merged with Kotak Mahindra Bank on 01.04.2015 i.e., much after the execution of the Assignment Agreement by which the debt stood transferred to the Financial Creditor. This bench notes that such merger between ING Vysya with Kotak would have no effect on the assignment of debt to the Financial Creditor and it ought to be reflected in the books of the Financial Creditor . However, as per the document in support produced in the Petition by the Petitioner i.e., Fin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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