TaxTMI 
TaxTMI 
TaxTMI 
2021 (6) TMI 415
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.... 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 Private Limited Company with CIN:U45201PY2005PTC001895 which was incorporated on 31.08.2005 and that its Authorized and Paid up Share Capital is Rs. 3,00,00,000/- and Rs. 3,00,00,000/- respectively. The Registered Office of the Corporate Debtor as per the Application is stated to be situated at No. B60 - 63, PIPDIC Industrial Estate, Mettupalayam, Pondicherry - 605 009. 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, ....
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....12.2018. 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; * Copy of the Sanction Advice dated 28.11.2005 issued by the Indian Overseas Bank (assignor of the Applicant) * Copy of the Guarantee Agreements dated 29.06.2006 and 30.06.2006 executed by the Corporate Debtor Bharani Properties Developer Private Limited in favour of the Indian Overseas Bank. * Copy of the Term Loan Agreement dated 10.10.2006 entered into between the Oriental Bank of Commerce. * Copy of the Agreement of Term Loan (FITL) dated 30.06.2009 entered into between the Oriental Bank of Commerce. * Copy of the Guarantee Agreement dated 10.10.2006 executed by the Corporate Debtor. * Copy of the Guarantee Agreement dated ....
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....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 Agarwal, as referred by the Respondent/Corporate Debtor. It is seen that the interpretation of law as made in the judgment 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) Act, 2018 (Act 26 of 2018) and also of the subsequent decision of the Hon'ble NCLAT in the matter of Edelweiss Asset Reconstruction Company Ltd. vs. Sachet Infrastructure Ltd. & Ors. in Company Appeal (AT)(Insolvency) No. 377 of 2019 date....
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....ation and not a suit. (ii) A. Balakrishnan vs. Kotak Mahindra Bank & Anr.; Company Appeal (AT) Insolvency No. 1406 of 2019; wherein the 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 recourse to Section 18 of the Limitation Act, 1963. 14. It is seen from the record of proceedings that, after filing of the Additional Counter, the Financial Creditor was granted an opportunity to file rejoinder. H....
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....on, 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, in our view, neither the said provision and principles come in operation in the present case nor they enure to the benefit of respondent No. 2 for the fundamental reason that in the application made bef....
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.... 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 Cooperative Bank Ltd. & Anr. in Civil Appeal No. 9189 of 2019, has held that the time spent in the SARFAESI proceedings can be excluded in terms of Section 14 of the Limitation....