TaxTMI 
TaxTMI 
TaxTMI 
2019 (1) TMI 1769
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....fault is stated to be Rs. 93,86,52,393/- as on 25.09.2017. The date of default as per Form I is mentioned to be 11.03.2015. (A) Brief History of the case: 3. The Corporate Debtor herein, approached IDFC Limited (IDFC) in March 2008, requesting for certain financial facilities which request was acceded to by IDFC. Accordingly, IDFC and the Corporate Debtor executed various loan documents pursuant to which IDFC advanced a Term Loan of Rs. 55,00,00,000/- (Term Loan I) to the Respondent. In November 2009, the Corporate Debtor sought further financial assistance from IDFC and HDFC Limited (HDFC) and a Rupee Term Loan Agreement was entered for an amount of Rs. 22,00,00,000/- (Term Loan II) by the Corporate Debtor and IDFC dated 20.11.2009. This Term loan was to be repaid in 29 structured, quarterly instalments commencing from 15.07.2012 as per the Amortisation Schedule annexed to the Rupee Term Loan Agreement. 4. Thereafter, the Corporate Debtor sought financial assistance from IDFC, HDFC, and Union Bank of India and a Facility Agreement (Secured Term Loan Agreement) dated 24.05.2012 was executed between IDFC, HDFC, Union Bank of India and the Corporate Debtor for advancement of a fur....
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....0,000/- has also been executed by the Corporate Debtor in favour of IDFC for Term Loan III. Hence, the debt as regards Term Loan III has been duly admitted in view of the above said Promissory Note. 9. The petitioner states that the Petition is well within the limitation period. The date of default in the present case is 11.03.2015 as mentioned in Form I annexed to the petition. Hence the contention of the Respondent that the Debt is time barred, ought to be rejected as the prescribed limitation period in suits for enforcing payment of money secured by a mortgage or otherwise charged upon immovable property is Twelve years from the date when money sued for becomes due as per Article 62 of the Limitation Act, 1963. 10. The Petitioner further submits that the petition is complete in all respects as regards the contention of the Corporate Debtor that the Statement of Accounts annexed to the Petition are false and are not certified under Bankers' Books of Evidence Act. The Petitioner further explains that the statement of accounts for the period prior to the assignment of debt to the Petitioner by IDFC were provided to the Corporate Debtor and the same have been produced at Exhib....
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....prior to September 2014. The claim of the Petitioner is severely inflated including for loan accounts which were admittedly settled before the loans were assigned to the petitioner by IDFC. The Corporate Debtor contends that Rs. 77,00,00,000/- has already been paid by RTGS for clearing the dues under Term Loan I and Term Loan II on 09.08.2012. Hence, only Term Loan III is left to be repaid and the assignment of Term Loan II to the Petitioner by IDFC is bad in law. So, it is questioned that in a situation when in respect of Term Loan II part payment had already been made, whether IDFC was justified to assign the balance debt to an assignee i.e. Phoenix ARC. 13.3 Pendency of the JLF: The Corporate Debtor contends that the Petitioner has in breach of the RBI Circulars and directives: (i) obstructed the formation of JLF; (ii) not abided by the majority decisions of the JLF; (iii) not abided by the obligations under the Corrective Action Plan (CAP); (iv) not exited the JLF. It is argued that pending any rectification, restructuring and recovery of out-standings by various entities to banks and financial institutions by the JLF, no proceeding for recovery or coercive action including pr....
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....lowing the above precedent, this Bench is of the View that the provisions of Limitation Act do apply while implementing the provisions of Insolvency Code. So, the outcome of this discussion is that if the facts of the case narrates that twelve years is to apply instead of three years, the applicability of those provisions of the limitation act are to be examined in the light of the facts and circumstances of a particular case. 14.2 The second issue which arises is that whether the debt is time barred in the present case in hand. The given petition is to enforce the payment of money secured by a mortgage of immovable property. Hence, as per article 62 of the Limitation Act, 1963, the limitation period is twelve years from the date when the money sued for becomes due. Here, the Date of Default is 11.03.2015 as per Form I annexed to the petition and the petition is filed on 29.09.2017. In the absence of any specific denial or evidence from the side of the Debtor, it is unreasonable and unjustifiable not to believe the date of default as 11-3-2015. Hence, this Bench is of the view that in either case, i.e. three years or twelve years, this petition is well within limitation and the co....
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....Debt", and secondly, whether there is an existence of "Default". 17. The contention of the Respondent that the petitioner has not complied with the decisions of the JLF is not relevant for deciding a petition u/s 7 of the IBC in view of the Hon'ble NCLAT in the matter of Innoventive Industries Ltd. (supra), that : "the 'adjudicating authority' is not required to look into any other factor, including the question whether permission or consent has been obtained from one or other authority, including the JLF. Therefore, the contention of the petition that the Respondent has not obtained permission or consent of JLF to the present proceeding which will be adversely affect loan of other members cannot be accepted and fit to be rejected". 17.1 Hence, in the present case, the above mentioned argument of the Corporate Debtor that IDFC or the Petitioner did not agree for the Joint documentation of further loans to be granted to the Corporate debtor by the consortium is all cliché' for deciding the fate of the present case. A defaulter cannot dictate a term on the creditor to choose its line of action for due security of the debt. The decision of the creditor to fo....