TaxTMI 
TaxTMI 
2020 (12) TMI 319
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....o initiate Corporate Insolvency Resolution Process (CIRP) against Deegee Orchards Private Limited (Corporate Debtor). 2. The Corporate Debtor is a private company limited by shares and incorporated on 29.05.1997 under the Companies Act, 1913, with the Registrar of Companies, Maharashtra, Mumbai. Its Corporate Identity Number (CIN) is U01100MH1997PTC108323. Its registered office is at Deegee House, Jaistambh Chowk, Rallies Plot, Amravati 444 601, within the State of Maharashtra. Therefore, this Bench has jurisdiction to deal with this petition. 3. The present petition was filed on 11.09.2019 before this Adjudicating Authority on the ground that the Corporate Debtor failed to make payment of a sum of Rs. 43,04,08,269.00 (Rupees forty-th....
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.... sanction letter dated 23.12.2013: working capital term loan restructured limit: Rs. 33.83 crore; working capital fund based: Rs. 6.17 crore. Total fund-based facility: Rs. 40.00 crore. 5. The underlying documents have been placed on record as Exhibit E-1 to Exhibit E-6 at pp.34-101. The rate of interest charged is 11.70% per annum. The total debt due and payable to the Financial Creditor is Rs. 67,72,53,307.28 (Rupees sixty-seven crore seventy-two lakh fifty-three thousand three hundred and seven and paise twenty-eight only), as mentioned at page 101-A of the Petition. The other connected documents such as certificates of registration of charge, demand promissory notes, agreement to pledge the goods, balance confirmation letter dated 30....
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....cial Creditor vide letter dated 09.09.2019 to return the said sum of Rs. 25.00 lakh and undertook to deposit the same upon hearing from the Financial Creditor. Subsequent to the filing of the present petition on 11.09.2019, the Corporate Debtor sent another letter dated 25.09.2019 seeking refund of the amount of Rs. 25.00 lakh. (d) The Financial Creditor has suppressed the factum of OTS proposals, and the petition was filed even before a decision on the OTS was communicated. 9. The Financial Creditor has filed a rejoinder, broadly stating that there is debt and default before the filing of the present petition. There was no restructuring, and there was only an OTS proposal that was being considered by the Financial Creditor. The....
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....tion Act, 1963. 14. Article 137 of the Limitation Act, 1963 stipulates a limitation period of three years from the date on which the right to apply accrues. 15. In Vashdeo R Bhojwani v Abhyudaya Cooperative Bank Limited & another, (2019) 9 SCC 158 : (2019) 4 SCC (Civ) 308 the Hon'ble Supreme Court quoted the BK Educational Services (supra)judgment and stated that if the default has occurred over three years prior to the date of filing of the application, the application would be barred under Article 137 of the Limitation Act, save and except in those cases where, in the facts of the case, section 5 of the Limitation Act may be applied to condone the delay in filing such application. 16. In Sagar Sharma & another v Phoenix ARC P....
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....ted 12.03.2020 in Ishrat Ali v Cosmos Cooperative Bank Limited & another, Company Appeal (AT) (Insolvency) No. 1121 of 2019 decided on 12.03.2020 wherein the Hon'ble NCLAT held that an action taken by the Financial Creditor under section 13(2) or section 13(4) of the SARFAESI Act, 2002 cannot be termed to be a 'civil proceeding' before a court of first instance or appeal or revision before an appellate court. Therefore, the action taken under section 13(2) of the SARFAESI Act, 2002 cannot be counted for the purpose of exclusion of the period of limitation under section 14(2) of the Limitation Act, 1963. In this light, the Hon'ble NCLAT held that the decision rendered in Sesh Nath Singh did not lay down the correct law. 19....
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....of the Hon'ble NCLAT in V Hotels Limited v Asset Reconstruction Company (India) Limited, Company Appeal (AT) (Insolvency) No. 525/2019 decided on 11.12.2019 wherein the judgment of the Hon'ble Supreme Court was referred to in support of the contention that any document or acknowledgement after the completion of the period of limitation cannot be relied upon. Further, in the absence of any record of acknowledgement, the Appellant cannot derive any advantage of section 18 of the Limitation Act. The Hon'ble NCLAT went on to hold that the application under section 7 of the IBC was barred by limitation, the accounts of the Corporate Debtor having been declared as NPA on 01.12.2008. 22. In sum - (a) The date of default is ....