TaxTMI 
TaxTMI 
2020 (8) TMI 459
X X X X Extracts X X X X
X X X X Extracts X X X X
....tor and perused the records. 8. On the last date of hearing i.e. on 21.08.2019, when matter was called none appeared for Corporate Debtor. Therefore, this Petition was heard exparte qua the Respondent. 9. The Financial Creditor as per the Decree dated 05.08.2011 by the Debt Recovery Tribunal, Jabalpur and Recovery Certificate dated 06.05.2015 a total sum of Rs. 24,93,08,874/- was due. This along with interest and other expenses as on the date of filing the application, as per the petitioner, amounts to Rs. 83,40,90,183/-." 3. The Adjudicating Authority found that the Application filed by the 2nd Respondent/Financial Creditor was complete in all respects and appointed one Mr. Amresh Shukla, 'Interim Resolution Professional' of the 'Corporate Debtor' to carry out the functions as per IBC. 4. It is the stand of the Appellant that the 2nd Respondent/ Bank had averred in its Application under Section 7 of the Insolvency and Bankruptcy Code, 2016 (for short 'IBC') before the Adjudicating Authority that the amount of Rs. 6,63,00,000/- was advanced to the 1st Respondent under Sanction Letter dated 23.10.2002. It comes to be known that the 1st Respondent had executed demand promiss....
X X X X Extracts X X X X
X X X X Extracts X X X X
....No.2/ Bank has to file the Application within a period of three years from the date of default as per Hon'ble Supreme Court decision "B.K. Educational Services Pvt. Ltd. vs. Parag Gupta and Associates (Civil Appeal No. 23988/17)". Since the default had occurred over three years prior to the date of filing of the Application, the same is hit by Article 137 of the Limitation Act, 1963. Also, the Learned Counsel for the Appellant cited the judgment dated 17.02.2020 "Meena V. Kothari Vs. Maberest Hotels Pvt. Ltd - Company Appeal (AT) No.797 of 2019" whereby and whereunder at paragraph 12 it is observed as under: - "In this case the right to sue accrues when a default occurred i.e. 25.11.2007. The Financial Creditor has filed the application under Section 7 of I&B Code, on 17.04.2018, i.e. after three years from the date of default apparently the application is time barred." 10. The Learned Counsel for the Appellant contends that the last acknowledgement of debt and security was sent by the 1st Respondent on 05.04.2005 and 18.12.2006 being the balance confirmation letter and it is the crystalline stand of the Appellant that there is no acknowledgement by the 1st Respondent/ Corporat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....gorically takes a plea that Article 62 of the Limitation Act, 1963 speaks of 12 years of limitation period in respect of recovery of debt secured in regard to immovable property, but Article 137 of the Limitation Act will apply to the Application filed under Section 7 of the Code, even when the debt is secured by mortgage or otherwise charged upon immovable property. 16. The Learned Counsel for the 2nd Respondent/ Bank brings it to the notice of this Tribunal that the Chartered Accountant of the 'Corporate Debtor' had entered appearance on its behalf before the Adjudicating Authority on 10.07.2019 and that the next date of hearing was fixed on 21.08.2019. Moreover, the Appellant's Counsel enquired about the status and that the matter was listed on 22.08.2019 and on that day, the Learned Counsel for the Appellant was absent and in his absence the matter was heard and orders were reserved and ultimately the orders were passed on 16.12.2019. 17. By way of Reply, the Learned Counsel for the Appellant submits that the Adjudicating Authority had passed the impugned order overlooking the objections/ Reply filed by the 1st Respondent/ Company to the Application filed by the 2nd Responden....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the purchaser of the property had not deposited 25% of the bid amount on the date of auction and the balance amount within a period of 15 days as per Rule 9(3) of the Rules of 2002. Also, that the Corporate Debtor had mentioned in the reply before the Adjudicating Authority that financial assistance was provided to the Charak Hospital & Research Centre for making payment of the auctioned amount. 21. It is the stand of the 2nd Respondent/ Bank that it had only put part of the 'Secured Asset' to an auction, which was let out by the Appellant to the Charak Hospital & Research Centre and the remaining was not put to Auction. 22. It is to be mentioned that a final order dated 30.11.2016 in proceeding for possession for immovable properties of 'Corporate Debtor' vide Case No.71/B- 121/15-16 was passed by the Learned Additional District Magistrate (First), Jabalpur and on 23.03.2017, a revised order was passed because of some technical error. 23. Be it noted, that the provisions of I&B Code override other Laws. At the same time, the IBC proceedings cannot be initiated based on time barred claims. Regardless of when IBC came into force, if more than three years had elapsed from the date....