TaxTMI 
TaxTMI 
2022 (3) TMI 865
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.... Energy Limited (herein after referred to as Corporate Debtor) is a coal based power plant which is established for supply of power to Sri Mata Infra Tech Ltd., which is engaged in cement production. The Corporate Debtor has availed the following financial assistance/credit facilities from the Financial Creditor against the charge created with respect to the immovable properties and hypothecation of goods and Assets etc of the Corporate Debtor for the limits sanctioned under the loan Agreement. However, the Corporate Debtor failed to repay the outstanding loan amount. 2.2 When the financial assistance/credit facilities provided to the Corporate Debtor became irregular, the account of the Corporate Debtor was classified as Non-Performing Asset on 29.08.2012 The Financial Creditor had exercised its rights and remedies available to them under the SARFAESI Act, 2002 by filing OA No. 2325 of 2017 (old OA No. 1389 of 2014) before the Hon'ble DRT-II Hyderabad for recovery of outstanding amount of Rs. 42,24,17,738.09 with interest and cost. The defendants therein was set ex-parte and Hon'ble DRT had passed order basing on the documentary evidence on 14.09.2018 directing th....
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....de WP No. 26450/2017 which is pending/sub-judice before the Hon'ble High Court. It is further alleged that, had there been co-operation and accession to the legible request of the Corporate Debtor by the Financial Creditor at the appropriate time, the Unit would have been completed on time and helped in inflow of revenue for the Corporate Debtor. 3.3. It is averred that, though the Corporate Debtor is deliberating with prospective investors/creditors to take over the loan account of the Corporate Debtor from the Applicant, there is no response from the side of the Financial Creditor. 3.4. The Corporate Debtor, by relying on the following rulings, submits that the petition is barred by limitation. (i) Hon'ble Supreme Court of India judgement in the matter of Gaurav Hargovindbhai Dave Vs. Asset Reconstruction Company (I) Ltd. (Civil Appeal No. 4952 of 2019). (ii) Hon'ble Supreme Court of India judgement in the matter of "Jignesh Shah vs IL&FS (Writ Petition Civil 455 of 2019), wherein the Hon'ble Supreme Court reiterated the view that Article 137 of the Limitation Act is applicable for an application under the IBC. 3.5. The Corporate Debtor ....
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....hether the documentary evidence furnished with the application shows that the aforesaid debt is due and payable and has not yet been paid? (ii) Whether financial claim by the Applicant is barred by limitation? 6. We have heard the Ld. Counsel for the Financial Creditor and Ld. Counsel appearing for the Corporate Debtor, perused the record and case laws. POINT (i) Whether the documentary evidence furnished with the application shows that the aforesaid debt is due and payable and has not yet been paid? 7. At the outset it may be stated that availing of credit facilities by the Corporate Debtor from the Applicant/Financial Creditor as mentioned in the application, besides default in repayment of the same is not in dispute. It is also a fact that the Applicant has initiated recovery proceedings of its dues against the Corporate Debtor before the DRT Hyderabad and obtained a recovery certificate in its favour vide order dated 29.11.2018. The Applicant also initiated measures under SARFAESI Act and sold the "secured asset" and realised part of the outstanding dues. It is also on record that an OTS has been offered to the Corporate Debtor which the corporate debtor fa....
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....been allowed and recovery certificate dated 29.11.2018 for realization of the same against the Corporate Debtor has been issued by DRT-II, Hyderabad. 12. Hon'ble Supreme Court of India in Dena Bank (now Bank of Baroda) vs C. Shivakumar Reddy and Anr., has held as follows:- 142. To sum up, in our considered opinion an application under Section 7 of the IBC would not be barred by limitation, on the ground that it had been filed beyond a period of three years from the date of declaration of the loan account of the Corporate Debtor as NPA, if there were an acknowledgement of the debt by the Corporate Debtor before expiry of the period of limitation of three years, in which case the period of limitation would get extended by a further period of three years. 143. Moreover, a judgment and/or decree for money in favour of the Financial Creditor, passed by the DRT, or any other Tribunal or Court, or the issuance of a Certificate of Recovery in favour of the Financial Creditor, would give rise to afresh cause of action for the Financial Creditor, to initiate proceedings under Section 7 of the IBC for initiation of the Corporate Insolvency Resolution Process, within t....