TaxTMI 
TaxTMI 
2020 (5) TMI 269
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....ial creditor (the power of attorney is annexed as annexure 1 of the application). 3. The respondent-M/s. Amitech Textiles Ltd., incorporated on May 21, 1992 (having its registered office at, Arazi No. 153, Khanchandrapur Barah, Raina, NH-2, Kanpur Dehat-209 311 ; CIN U17115UP1992PLC014385). The authorised share capital of the respondent is Rs. 3,00,00,000 (rupee three crores only) and issued subscribed and paid-up share capital is Rs. 1,80,51,750 (rupees one crore eighty lakhs fifty-one thousand seven hundred and fifty only). 4. Brief facts related to petition are as follows : (i) Learned counsel for the applicant submitted that earlier the name of the corporate debtor was M/s. Amitech Industries Ltd. The name of the corporate debtor has changed from M/s. Amitech Industries Ltd. to M/s. Amitech Textiles Ltd. with effect from August 20, 2013 vide resolution dated September 6, 2013. It was resolved that information regarding change of name of the corporate debtor be provided to the entire Govern ment Departments as well as to the customers and suppliers. (The copy of the certificate of incorporation upon change of name in terms of section 21 of the Companies Act, 1956 is annexed ....
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.... 2016 an amount of Rs. 3,00,000 has been deposited. Therefore, under section 19 of the Limitation Act, fresh limitation starts from the date of last deposit and hence this application is within limitation. He further stated that the financial facilities have been availed by the corporate debtor on the basis of the mortgage of immovable assets. The corporate debtor had executed loan documents and mortgage documents on April 6, 2010, June 22, 2012 and March 20, 2013. Therefore, to enforce payment of money secured by a mortgage or otherwise charged upon immovable property, the limitation period being 12 years, hence, the application is within limitation with regard to mortgage also. (viii) In the counter-affidavit filed by the corporate debtor, learned counsel submitted that the entire properties of the corporate debtor are in the hands of the financial creditor and physical possession of the properties have already been taken by the financial creditor and the order of the hon'ble Debts Recovery Tribunal (Allahabad Bench) is an ex parte order and the same has been challenged by the corporate debtor before the Debts Recovery Tribunal. (ix) In reply to the counter-affidavit, lea....
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.... to produce any document to prove that there is no debt and default on the part of the corporate debtor. So, from the perusal of averments made in the counter-affidavit filed on behalf of the respondent, I find that the respondent has raised the question of maintainability on the ground referred in the counter-affidavit. I have carefully examined the ground mentioned in the counter-affidavit along with the provisions contained under section 7 of the I and B Code. The relevant provision of section 7(1), (2), (3) as quoted below : "7. Initiation of corporate insolvency resolution process by financial creditor.-(1) A financial creditor either by itself or jointly with other financial creditors, or any other person on behalf of the financial creditor, as may be notified by the Central Government may file an application for initiating corporate insolvency resolution process against a corporate debtor before the Adjudicating Authority when a default has occurred. Explanation.-For the purposes of this sub-section, a default includes a default in respect of a financial debt owed not only to the applicant-financial creditor but to any other financial creditor of the corporate debtor. ....
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....e law or has not yet become due in the sense that it is payable at some future debt. It is only when this is prove to the satisfaction of the Adjudicating Authority may reject an application and not otherwise." 10. In the case of Ajay Agarwal v. Central Bank of India [2018] 208 Comp Cas 402 (NCLAT), the hon'ble National Company Law Appellate Tribunal held : "When in case a 'corporate debtor' commits a default of financial debt, the adjudicating authority has merely to see the records of the information utility or other evidence produced by the 'financial creditor' to satisfy itself that a default has occurred. Other considerations, such as the existence a dispute or discrepancy are irrelevant, so long it has not been disputed the same debt is due and is payable to the financial creditor and the corporate debtor has defaulted." 11. Further, it is matter of record that the statement of account which has been filed shows that on October 3, 2016 an amount of Rs. 3,00,000 has been deposited and the applicant/financial creditor has filed this application on November 30, 2018, and on this the learned counsel for the petitioner submitted that this petition is covere....
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....o. (India) Ltd. [2019] 8 Comp Cas-OL 250 (SC) in Civil Appeal No. 4952 of 2019 dated September 18, 2019 in paragraph 6 held that (page 253) : ". . . what is apparent is that article 62 is out of the way on the ground that it would only apply to suits. The present case being 'an application' which is filed under section 7, would fall only within the residuary article 137." 15. From the perusal of article 62 of the Limitation Act as well as the decision referred it appears to this Adjudicating Authority that it is admitted position of law that article 62 will not apply to the applications filed under section 7 of the Insolvency and Bankruptcy Code, 2016 rather it would fall only under article 137 of the Limitation Act. Therefore, this Adjudicating Authority does not finds force in the contention of the submission placed by learned counsel for the petitioner, that this case comes under article 62 of the Limitation Act. 16. Therefore, in view of the aforesaid decisions, I would like to consider whether the petitioner has succeeded in establishing the fact that there is financial debt or default in part of corporate debtor in making payment of debt. 17. From the perusal of ....