TaxTMI 
TaxTMI 
2021 (4) TMI 1124
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.... SUBMISSIONS OF FINANCIAL CREDITOR 2. The Applicant/ Financial Creditor granted a term loan of Rs. 3,00,00,000.00/- (Rupees Three Crores Only) on 28.10.2011 and the sanction terms were duly communicated to the Corporate Debtor. The credit facility was secured by executing the following documents. 1. Facility Agreement dated 29.10.2011 - As per the Agreement the parties agreed to repay the said sum with interest rate of 13.50% and agreed to repay within 120 equated monthly instalments of Rs. 4,56,823.00. 2. Power of Attorney dated 29.10.2011 3. Demand Promissory Note dated 29.10.2011 in favour of Applicant for Rs. 3,00,00,000.00 4. D.P. Note Delivery Cum Continuity Letter dated 29.10.2011 5. Cheque Submission Form dated 29.10.2011 6. Collateral security- Sale Deed No.686/2011 of SRO Meenchantha. 3. It is also stated that loan account was later mapped to Angamaly Branch of the Financial Creditor. The loan was secured by creation of Equitable Mortgage of Property to the extent of 60.70 cents of land with building therein covered under Document No. 286/2011 owned by Mr. Lijo Joseph, the Managing Director of the Corporate Debtor. The Corporate Debtor also acknowledged th....
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....n filed stating that the account was classified as NPA on 05.12.2017. 7. It is also stated that applicant bank issued possession notice against the property alleging that security interest is created in favour of the applicant bank. However, the owner of the property namely Lijo Joseph approached the Debts Recovery Tribunal, Ernakulam and filed SA No.357/2018 challenging the proceedings under the SARFAESI Act. Moreover, applicant bank also filed application before the Chief Judicial Magistrate Court, Kozhikode under Sec.14 of the SARFAESI Act, seeking assistance of the court to take physical possession of the property in question. The Debts Recovery Tribunal was interdicted in the matter and directed the applicant bank to defer the coercive measures on condition to make the payment of amounts to the tune of Rupees Twenty Lakhs. This amount was paid by the Applicant and thereafter Corporate Debtor continued to pay the amount in order to clear off the overdue amounts in the account as informed by the applicant. Thereafter, the Corporate Debtor cleared the overdue amount in the account outstanding as on 28.09.2018. The above aspects have been categorically stated by the applicant ban....
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....initiated. Hence, demand notice under SARFAESI Act was reissued on 25.04.2018 and is continuing the action based on the same. At the time of filing of Section 14 application before the CJM Court, Calicut, the bank had produced the copies of the notices of SARFAESI proceedings and one of such was demand notice under Section 13(2) of SARFAESI Act dated 25.04.2018,wherein the classification of the account as NPA is shown as 04.04.2018 and after verifying all the above documents only the CJM Court, Calicut had passed the order of physical possession of the property. Moreover, the Corporate Debtor had not challenged the above recovery action based on the NPA date of 04.04.2018 in the Securitisation Application No. 357/2018 filed by them before the DRT. 10. It is also stated that the Corporate Debtor had availed a loan against property for an amount of Rs. 300 lakhs from the Hospital Road Branch of the Financial Creditor Bank at Ernakulam, and the said account was later mapped to Angamaly Branch, by executing all necessary loan documents on 29.10.2011 and the loan was also secured by creation of Equitable Mortgage of Property to the extent of 60.70 cents of land with building therein co....
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....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". 14. In the instant case the loan account was classified as NPA in two different dates i.e. on 05.12.2017 and 04.04.2018 and the Application was filed on 04.12.2020, even though the two dates are considered as the default date the Application is filed well within the time of 3 years. Therefore, the contention of the Corporate Debtor regarding limitation has no legs to stand. 15. In this connection this Tribunal refers to the decision of the Hon'ble Supreme Court in "M/s. Innoventive Industries Ltd. versus ICICI Bank & Anr." [(2018) 1 Supreme Court Cases 407], wherein the Court observed: - "28. When it comes to a financial creditor triggering the process, Section 7 becomes relevant. Under the explanation to Section 7(1), a default is in respect of a financial debt owed to any financial creditor of the corporate debtor - it need not be a debt owed to the applicant financial cred....
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....against the Corporate Debtor. 17 . The Financial Creditor has suggested the name of Mr. JASIN JOSE, IBBI/IPA-001/IP-P00695/2017-2018/11225, email jasinjoseponmattam@ gmail.com for appointment as the Interim Resolution Professional (IRP). He has filed a declaration in Form 2 affirming that he is a Registered Insolvency Professional and that no disciplinary proceedings are pending against him. ORDER 18. Application on behalf of Financial Creditor filed under Section 7 of the I& B Code 2016 for initiation of Corporate Insolvency Resolution Process is admitted against the Corporate Debtor prohibiting the following: I. The institution of suits or continuation of pending suits or proceedings against the Corporate Debtor including execution of any judgement, decree or order in any Court of Law, Tribunal, Arbitration Panel or other authority; II. Transferring, encumbering, alienating or disposing of by the Corporate Debtor any of its assets or any legal right or beneficial interest therein; III. Any action to foreclose, recover or enforce any security interest created by the Corporate Debtor in respect of its property including any action under the Securitisation and Reconstructio....