TaxTMI 
TaxTMI 
2021 (6) TMI 321
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....iscloses the fact that the Petitioner is an Asset Reconstruction Company incorporated under the provisions of the Companies Act, 1956 on 11.02.2002. Part-II of the Application gives all the particulars of the Corporate Debtor from which it is evident that the Corporate Debtor is a PrivateLimited Company with CIN:U55101TN1991PTC020829which was incorporated on 17.01.1991and that its Authorized and Paid up share Capital is Rs.5,00,00,000/- and Rs.4,00,00,000/- respectively. The Registered Office of the Corporate Debtor as per the Application is stated to be situated at 601, Anna Salai, Chennai - 600 006. 3. Part - III of the Application discloses the fact that the Financial Creditor had proposed the name of one Mr. TVL Narasimha Rao, as the Interim Resolution Professional, who has also filed his consent in Form 2. 4. From Part-IV of the Application, it is seen that on 28.11.2005, Indian Overseas Bank had sanctioned Term Loan of an amount of INR 30 Crore to M/s. Anandram Developers Private Limited ("ADPL"), the Principal Borrower and in respect of whom the Liquidation proceedings are pending before this Adjudicating Authority. It is seen that, in order to secure the said loan, on 30.....
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....2.2018. It is pertinent to note here that, the Financial Creditor has not mentioned the 'Date of Default' in Part - IV of the Application, which is crucial for determining as to whether the claim is saved / barred by limitation. 8. At this juncture, it is also apposite to take on record the documents, which have been filed by the Financial Creditor in support of their claims, and based on those documents, this Tribunal will examine the claim of the Financial Creditor and its debt and default on the part of the Respondent / Corporate Debtor; * Sanction Letter dated 28.11.2005 issued by the Indian Overseas Bank (assignor of the Applicant) to the Corporate Debtor with the terms and conditions acknowledged by the Corporate Debtor. * Copy of the Guarantee Agreement dated 30.06.2006 executed by the Corporate Debtor in favour of the Assignor of the Financial Creditor. * Copy of the Term Loan Agreement dated 10.10.2006 entered into between the Oriental Bank of Commerce (Assignor of the Financial Creditor) and ADPL. * Copy of the Agreement of Term Loan (FITL) dated 30.06.2009 entered into between the Oriental Bank of Commerce (Assignor of the Financial Creditor) and ADPL. * Copy ....
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....s also averred in the Reply statement that the alleged debt of the Financial Creditor against the borrower is not yet crystallized and unless the same is crystallized, the question of payment by the borrower or guarantor to the Financial Creditor does not arise. Thus, for the aforesaid reasons the Respondent / Corporate Debtor has sought for the dismissal of the present Application. 10. However, before proceeding further to the submissions made by the parties, it is necessary to advert to the issue of whether CIRP can be initiated against the Guarantor as rendered by the Hon'ble NCLAT in the matter of Dr. Vishnu Kumar (supra), as referred by the Respondent / Corporate Debtor. It is seen that the interpretation of law as made in the judgement of the Hon'ble NCLAT in the matter of Dr. Vishnu Kumar Agarwal vs- Piramal Enterprises Ltd was not followed by a concordant bench of the Hon'ble NCLAT in the matter of State Bank of India -Vs- Athena Energy Ventures Private Limited dated 24.11.2020, for detailed reasoning given in the said Judgment by taking note inter alia of the amendment made to Section 60(2) and 60(3) of IBC, 2016 by the Insolvency and Bankruptcy Code (Second Amendment) Ac....
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....rguments; (i) Gaurav Hargovindbhai Dave-Vs- ARCIL (2019) SCC Online SC 1239; wherein the Hon'ble Apex Court in para 9 has held that Article 137 would apply to cases filed under Section 7 of IBC, 2016 since it was an application and not a suit. (ii) A. Balakrishnan -Vs- Kotak Mahindra Bank &Anr.; Company Appeal (AT) Insolvency No. 1406 of 2019; whereinthe Hon'ble NCLAT at para 19 and 20 has held filing of O.A. or obtaining Recovery Certificate does not extend the period of limitation and would not be construed as a continuous cause of action. (iii) Bimalkumar Manubhai Savalia -Vs- Bank of India &Anr.; Company Appeal (AT) Insolvency No. 1166 of 2019; wherein the Hon'ble NCLAT has held that SARFAESI and DRT proceedings would not extent the period of limitation since those proceedings are independent and as per Section 238 of IBC, 2016 the IBC, 2016 is a complete Code and will have overriding effect on other laws. (iv) State Bank of India -Vs- Krishidhan Seeds Pvt.Ltd.;Company Appeal (AT)(Ins) No.972 of 2020; wherein it has been held by the Hon'ble NCLAT in para 4 that the OTS proposals given by the Corporate Debtor would not extend the Date of Default and thereby having recour....
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.... in the Code is that of actual non-payment by the corporate debtor when a debt has become due and payable; and (g) that if default had occurred over three years prior to the date of filing of the application, the application would be time- barred save and except in those cases where, on facts, the delay in filing may be condoned; and (h) an application under Section 7 of the Code is not for enforcement of mortgage liability and Article 62 of the Limitation Act does not apply to this application." 16. From Part - IV of the Application, it is seen that the Financial Creditor has failed to state the Date of Default in the Application. Further, no pleadings as such has been made by the Financial Creditor as to how the present Application falls well within the period of limitation. At this juncture, it is apt to refer to the para 33 of the decision of the Hon'ble Supreme Court in the matter of Babulal Vardharji Gurjar (supra), which is as follows; 33. Apart from the above and even if it be assumed that the principles relating to acknowledgement as per Section 18 of the Limitation Act are applicable for extension of time for the purpose of the application under Section 7 of the Code, ....
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.... case referred above, the Respondent has mentioned the 'Date of Default', however has failed to come up with any pleading in support of the same, and the Hon'ble Apex Court, in the absence of any pleading or averment in regard to the Date of Default and the acknowledgments being made subsequent to it, has stated that the debt is barred by limitation. As to the facts of the present case, the Financial Creditor, has failed to mention the 'Date of Default' in Part - IV of the Application, let alone any averments being made in relation to the acknowledgment of debt. 18. While examining the documents, filed by the Financial Creditor, this Adjudicating Authority has carefully and consciously gone through all the documents, which is extracted in the paragraph supra, and it is found that the after the 'Date of Default' i.e. the date of NPA of 31.12.2007, the Financial Creditor has not placed any record or document recognized under the law to substantiate that the debt falls well within the period of limitation. This Adjudicating Authority is conscious of the decision of the Hon'ble Apex Court in the matter of Sesh Nath Singh &Anr. -Vs- Baidyabati Sheoraphuli Co- Operative Bank Ltd. &Anr. ....