TaxTMI 
TaxTMI 
2022 (11) TMI 1044
X X X X Extracts X X X X
X X X X Extracts X X X X
....ha Merla, Member (T) ] 1. Challenge in this Appeal is to the Impugned Order dated 17.09.2021 passed by the Learned Adjudicating Authority (National Company Law Tribunal, Mumbai Bench, Court - III) in C.P. No. 4182/IBC/MB/2018 by which Order, the Learned Adjudicating Authority has admitted the Application filed under Section 7 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as 'The Code') preferred by the 'Financial Creditor'/'M/s. Union Bank of India' against the 'Corporate Debtor'/'M/s. Indian Transformers Company Limited'. Aggrieved by this Order, the Shareholder of the 'Corporate Debtor' preferred this Appeal. While admitting the Section 7 Application, the Adjudicating Authority addressed the issue of 'Limitation'....
X X X X Extracts X X X X
X X X X Extracts X X X X
....refore, the only legally sustainable plea of limitation raised by the Corporate Debtor in the sur-rejoinder and written submission is liable to be rejected and accordingly rejected. 5. Upon hearing the submissions of the counsel appearing for the Financial Creditor and upon perusing the material available on record, this bench is of the considered opinion that the Financial Creditor has successfully proved the existence of debt and default and the debt is also within limitation. The Financial Creditor has also suggested the name of proposed Interim Resolution Professional in part-3 of the Petition along with his consent letter in Form-2. Thus, the present Company Petition satisfies all the necessary legal requirements for admission....
X X X X Extracts X X X X
X X X X Extracts X X X X
....aiswal & Anr.' 2021 SCC OnLine SC 321. * 'Dena Bank (now Bank of Baroda)' Vs. 'C. Shivakumar Reddy & Anr.' (2021) 10 SCC 330. * 'Khan Bahadur Shapoor Fredoom Mazda' Vs. 'Durga Prasad Chamaria & Ors. AIR 1961 SC 1236. * 'Sahara India' Vs. 'Shri Nandkishor & Anr.' Comp. App. (AT) (Ins.) No. 368/2021. * 'Gaurav Hargovindbhai Dave' Vs. 'Asset Reconstruction Company (India) Ltd. & Anr.' (2019) 10 SCC 572. * 'Bhawanishankar Harishchandra Sharma' Vs. 'Feedback Highways OMT Pvt. Ltd. & Anr.' Comp. App. (AT) (Ins.) No. 217 & 218 of 2022. * 'Babulal Vardharji Gurjar' Vs. 'Veer Gurjar Aluminium Industries Pvt. Ltd. & Anr.' (2020) 15 SCC 1. * 'M/s. Tech Sharp Engineers Pvt. Ltd.' Vs. 'Sangh....
X X X X Extracts X X X X
X X X X Extracts X X X X
....was issued on 29.04.2016 under Section 13(2) of the SARFAESI Act, 2002, demanding the outstanding amount; there was no objection raised by the Appellant at that point of time; an Original Application bearing No. 1009/2018 was filed before the Hon'ble DRT III for a Claim amount of Rs.37,18,82,327.80/- and thereafter Section 7 Application was filed before the Adjudicating Authority on 23.10.2018 and therefore the Application is well within the period of Limitation as fresh cause of action begins from 29.04.2016, i.e., the date on which the Demand Notice was issued and also because the last payment was made on 13.10.2017, which was also confirmed by the 'Corporate Debtor'. In support of his contentions, the Learned Counsel relied upon the foll....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... a Financial Creditor. The question is, whether the petition under Section 7 of the IBC has been instituted within 3 years from the date of default. 'Default' is defined in Section 3(12) to mean "non-payment" of a debt which has become due and payable whether in whole or any part and is not paid by the Corporate Debtor"........................ 141. Section 18 of the Limitation Act cannot also be construed with pedantic rigidity in relation to proceedings under the IBC. This Court sees no reason why an offer of One Time Settlement of a live claim, made within the period of limitation, should not also be construed as an acknowledgment to attract Section 18 of the Limitation Act. In Gaurav Hargovindbhai Dave (supra) cited by M....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ent of Good and Debts dated 12.10.2013. ➢ Composite Hypothecation Deed dated 12.10.2013. ➢ Supplementary Memorandum (Equitable Mortgage) dated 12.10.2013 along with Notice of intimation dated 11.11.2013. ➢ Letter of Guarantee dated 12.10.2013. ➢ General Term Loan Agreement dated 12.10.2013. ➢ Demand Promissory Note dated 12.10.2013. ➢ Letter of Undertaking not to alienate Hypothecated Goods dated 12.10.2013. ➢ Agreement on Rate of Interest dated 12.10.2013. ➢ Letter of Continuity dated 12.10.2013. ➢ Letter to be obtained from Directors in cases where advances have been permitted to private limited/l....