TaxTMI 
TaxTMI 
2021 (8) TMI 1279
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....Asset Reconstruction Ltd. 2. A brief history of the matter is as follows:- In the National Company Law Tribunal Submission by the Applicant: 2.1. On 03.09.2012, M/s. ING Vysya Bank Ltd. (Original Lender) sanctioned a loan of Rs. 20 crores for working capital requirement of the Corporate Debtor which was subsequently reduced and revised on 04.06.2013. 2.2. On 02.11.2012 a sum of Rs. 10 crore was disbursed by M/s. ING Vysya Bank (Original Lender) towards Cash Credit facility to the Corporate Debtor. Thereafter on 27.02.2014 Rs. 50 lakh was also disbursed to the Corporate Debtor towards working capital demand loan (short term loan), thus a total of Rs. 10.50 crore was disbursed to the Corporate Debtor. The Respondent Corporate Debtor has not disputed these disbursements. 2.3. As per PART-IV of the Application in Form 1, the particulars of financial debt is stated to be as follows:- Sr. No. Nature of facility Date of Disbursement Amount (Rs. in Crore) 1. Cash Credit A/c. 500044010509 02.11.2012 10.00 2. WCDL - Short Term Loan A/c. 500042069080 27.02.2014 0.50 The amount of debt along with the underlying security interest acquired....
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....imit under the Principal Facility. 3.2. On 07.10.2013, the Original Lender accorded sanction for an additional "ad hoc cash credit facility" with a limit of Rs. 1 crore (Second Sanction Letter) @ 3% interest in addition to the rate of interest earlier prescribed by the Original Lender. Accordingly, the position of facilities extended by the Original Lender is stated to be as under:- No. Nature of Facility Limit (Rs.) 1 PCL/PSL/PCFC/ERBD 10,00,00,000/- 1.1 Cash Credit (sub limit to PCL/PCFC/PSL/EBRD/AACB) (10,00,00,000/-) 1.2 WCD;/FCNR (SUB LIMIT TO PCL/PCFC/PSL/EBRD/AACB) (10,00,00,000/-) 2 ILC/FLC/LUT (sub limit to PCL/PCFC/PSL/EBRD/AACB) (10,00,00,000/-) 3 Ad-Hoc Cash Credit facility Rs. 1,00,00,000/- TOTAL 11,00,00,000/- 3.3. The Corporate Debtor was classified as NPA on 30.06.2014. Therefore, the Corporate Debtor filed a reference with the BIFR under the Sick Industrial Companies (Special Provisions) Act, 1985 (SICA) on 15.07.2014. 3.4. An Assignment Agreement was executed between the Original Lender (Vysya Bank) and the Financial Creditor on 19.09.2014 as per which, the cut off date was 31.08.2014 and all eco....
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.....05.2019, which also did not mention any date of default or starting point of limitation. The Corporate Debtor also pleaded that the date of default would not correspond to the date of declaration of the NPA and has to be determined on the basis of terms on which the facility was extended. According to the Respondent the limitation date should commence on 07.10.2013 and the Petition was filed by the Petitioner after 5 years and 7 months thereafter and claimed that thus the same is barred by limitation. The Corporate Debtor also argued that in OA 96 of 2017 filed by the Petitioner before the Hon'ble DRT, Mumbai and assuming that the period between 15.07.2014 till 30.11.2016 is excluded for the purposes of calculating limitation, even then the present Company Petition filed on 07.05.2019 is filed 3 years 4 months and 13 days from the date of the last sanction i.e., 07.10.2013. Therefore, the claim in the Petition is barred by the law of Limitation. 6.3. The Corporate Debtor further submitted that the Original Lender merged with Kotak Mahindra Bank on 01.04.2015, i.e., much after the execution of the Assignment Agreement by which the debts stood transferred to the Financial Cre....
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....ak) with effect from 01.04.2015. The bench notes that the merger of ING Vysya Bank into Kotak was after about 6 months after the Assignment Agreement was executed between ING Vysya and Reliance Asset Reconstruction Company Ltd. Therefore, it is abundantly clear that under no circumstances the debt could be transferred to Kotak by ING Vysya Bank. 8. In the Petition filed by the Financial Creditor, in Part IV, a Statement of Account which has been enclosed as Exhibit B and C in the Petition relates to account as maintained with Kotak Mahindra Bank and not as per the books of the Financial Creditor i.e., Reliance Asset Reconstruction Company Ltd. In fact, the amount if due and payable should only be reflected in the books and statement of account of the Financial Creditor i.e., Reliance Asset Reconstruction Company Ltd and not in the account of any other third party. The bench fails to understand how come a debt which is assigned as on 19.09.2014 from the original lender i.e., ING Vysya Bank to the Financial Creditor i.e., Reliance Asset Reconstruction Company can appear in the books of accounts of Kotak Mahindra Bank which is not at all related to the whole matter. 9. As stated....
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....08.05.2019. In Part-IV of the Petition the Financial Creditor has put the date of NPA as 30.06.2014. Therefore, the issue relating to limitation arises in the Petition as the Petition prima facie has been filed after more than 5 years. In the Petition no pleadings relating to extension/ exclusion of time to compute the period of limitation has been made. The bench notes that subsequently also no amendments in the Petition relating to extension of limitation or exclusion to compute the period of limitation has been made. It is well settled that the plea of limitation must be specifically pleaded by the Petitioner in their pleadings. In the instant case, the Financial Creditor has not specifically pleaded in its Application that it is within limitation and/ or sought condonation of delay in any respect. The Company Petition which has been filed on 07.05.2019 mentions the date of NPA as 30.06.2014. In this regard the Financial Creditor has not pleaded in the Company Petition to exclude any period of time. In this regard the bench would like to refer to the case of Kattinokkula Murali Krishna Vs. Veeramalla Koteshwara Rao (2010)1 SCC 466 wherein at paragraph 24, the Hon'ble Supreme....