TMI Blog2022 (9) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... tition, it is apparent that the Corporate Debtor also made part payment of the OTS proposed amount. Further, the settlement proposal under the SARAL KARJ BHUGTAN YOJNA provided for the payment of the balance amount within 31 March, 2019. The Petition establishes that the Corporate Debtor is in default of a debt due and payable and that the default is more than the minimum amount stipulated under section 4 (1) of the Code, stipulated at the relevant point of time - the present petition filed by the Financial Creditor is complete in all respects as required by law - Petition admitted - moratorium declared. - C. P (IB) No. 1847/KB/2019 - - - Dated:- 26-8-2022 - Shri Rohit Kapoor : Member ( Judicial ) And Shri Balraj Joshi : Member ( Technical ) Mr. Shaunak Mitra Advocate Mr. Siddhant Makkar , Advocate For Financial Creditor Mr. Nimish Mishra, Advocate Mr. Debjit Mukherjee , Advocate For Corporate Debtor ORDER Per Balraj Joshi , Member ( Technical ) 1. The Court convened viahybrid mode. 2. This is a Company Petition filed under section 7 of the Insolvency and Bankruptcy Code, 2016 ( the Code ) read with Rule 4 of the Insolvency and Bankruptcy (Applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor Bank. The Financial Creditor further took recourse under the SARFAESI Act, 2002 and issued notice dated 10 October, 2013 u/s 13(2) of the said Act for the accounts in the name of the Corporate Debtor maintained with the Financial Creditor Bank. 10. Subsequently, the Financial Creditor Bank issued notice dated 01 January, 2014 u/s 13(4) of the SARFAESI Act, 2002 to the Corporate Debtor through its Directors for the default committed by the company viz. Dutta Agro Mills Pvt. Ltd. 11. In order to find an alternative solution to the issue, the Financial Creditor Bank in concurrence with the Corporate Debtor offered an OTS (One Time Settlement) offer vide letter dated 01 November, 2018 under SARAL KARJ BHUGTAN YOJNA to the Corporate Debtor. The Corporate Debtor accepted the offer for OTS videits letter dated 28 December, 2018. 12. From time to time the said OTS settlement was extended, however, the Corporate Debtor failed to adhere to the OTS under the SARAL KARJ BHUGTAN YOJNA. Hence, at last the Financial Creditor cancelled the OTS proposal on 01 August, 2019. Submissions by the Ld. Counsel appearing on behalf of the Corporate Debtor 13. As alleged by the Fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NPA 31/03/2013 3 Date of representation u/s 13(3) of SARFAESI Act, 2002 21/11/2014 4 Payment received from the Corporate Debtor 29/03/2017 5 Payment received from the Corporate Debtor under OTS Offer SKBY 31/12/2018 6 Further payment received from the Corporate Debtor 22/01/2019 7 Further payment received from the Corporate Debtor 06/03/2019 8 Limitation period ending on 06/03/2022 Analysis and Findings. 19. We have heard the Ld. Counsel appearing on behalf of the Financial Creditor and the Ld. Counsel appearing on behalf of the Corporate Debtor. The principal issue that arises before us is whether the Petition under section 7 of the Code is barred by limitation or not? 20. Upon perusal of the record it is apparent that transaction between the parties was purely fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d/or the (corporate) guarantor admit and acknowledge their liability after declaration of PA but before the expiration of three years there from including the fresh period of limitation due to (successive) acknowledgments, it is not possible to extricate them from the renewed limitation accruing due to the effect of Section 18 of the Limitation Act. Section 18 of the Limitation Act gets attracted the moment acknowledgment in writing signed by the party against whom such right to initiate resolution process under Section 7 of the Code enures. Section 18 of the Limitation Act would come into play every time when the principal borrower and/or the corporate guarantor (corporate debtor), as the case may be, acknowledge their liability to pay the debt. Such acknowledgment, however, must be before the expiration of the prescribed period of limitation including the fresh period of limitation due to acknowledgment of the debt, from time to time, for institution of the proceedings under Section 7 of the Code. Further, the acknowledgment must be of a liability in respect of which the financial creditor can initiate action under section 7 of the Code. 24. In Rajendra Narottamdas Sheth an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ency Bankruptcy Code, 2016, and moratorium prohibits the following: i. The institution of suits or continuation of pending suits or proceedings against the Corporate Debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; ii. Transferring, encumbering, alienating or disposing of by the Corporate Debtor any of its assets or any legal right or beneficial interest therein; iii. 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 Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002); iv. The recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. (c) The moratorium shall have effect from the date of this order till the completion of the CIRP or until this Adjudicating Authority approves the resolution plan under sub-section (1) of section 31 of the IBC or passes an order for liquidation of Corporate Debtor under section 33 of the IBC, as the case may be. (d) Publ ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
