TMI Blog2023 (3) TMI 1283X X X X Extracts X X X X X X X X Extracts X X X X ..... imitation, is already answered in the previous Order and has attained finality, this Tribunal, is of the considered view that, it is not the Date of NPA, which is 30.09.2015, which is to be taken into consideration, keeping in view the facts of the attendant case, but rather, it is the Date of Default, which is six months, subsequent to the time given by this Tribunal, in the Order dated 09.09.2021, that is to be considered. This Tribunal, does not have any Equity Jurisdiction, and also conscious and alive to the candid fact that more than sufficient/ ample time, was extended to the Corporate Debtor. Besides that, the Debt and Default, are clearly demarcated in Para-IV of the Section 7 Application of the I B Code, 2016, in CP (IBC) 46/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the Project undertaken is viable and feasible only when all the Debts , are cleared and investment is made. The promoters have made huge investment to the tune of Rs. 225 Crores, which includes borrowed funds from the three Financial Creditors , out of which, they have settled with the State Bank of India , which is the major Financial Creditor , and also made part payments to the 1st Respondent/ Financial Creditor / Union Bank of India . 3. It is submitted that the project was technically assessed by Dun and Bradstreet and they have given a detailed Report , on 23.12.2016, with respect to every aspect of the Project , and that it was only because of change in design and delay in Sanctioning and Disbursal of Additional Loans, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in, the amount was not paid and hence afresh cause of action , has arisen and therefore, it cannot be said that the Section 7 Application , is barred by Limitation . 7. It is the main case of the Appellant that the previous Order of this Tribunal is dated 09.09.2021, whereby and whereunder six months time was granted and the same ended on 09.03.2022 and this date of 09.03.2022, cannot be taken as the Date of Default . Dr. Ravichandran, drew our attention to Para No. 20 of the Order , which reads as follows: We reiterate, that the scope and objective of the Code is Insolvency not recovery. The Admission of Section 7 Application is set aside. Keeping in view the peculiar facts of the attendant case, we dispose of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by this Court, it is not open to contend that the limitation for filing Application under Section 7 IBC would be limited to Article 137 of the Limitation Act and extension of prescribed period in certain cases could be only under Section 5 of the Limitation Act. There is no reason to exclude the effect of Section 18 of the Limitation Act to the proceedings initiated under the Code. 43. Ordinarily, upon declaration of the loan account/debt as NPA that date can be reckoned as the date of default to enable the financial creditor to initiate action under Section 7 IBC. However, Section 7 comes into play when the Corporate Debtor commits default . Section 7, consciously uses the expression default not the date of notifying the loa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... including the fresh period of limitation due to acknowledgment of the debt, from time to time, for institution of the proceedings under Section 7 IBC. Further, the acknowledgment must be of a liability in respect of which the financial creditor can initiate action under Section 7 IBC. (Emphasis Supplied) 10. It is also seen from the record that there is correspondence dated 14.01.2022 and OTS Letter dated 27.11.2019. Apart from the fact that the issue of Limitation , is already answered in the previous Order and has attained finality , this Tribunal , is of the considered view that, it is not the Date of NPA , which is 30.09.2015, which is to be taken into consideration, keeping in view the facts of the attendant case, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
