TaxTMI 
TaxTMI 
2022 (11) TMI 1532
X X X X Extracts X X X X
X X X X Extracts X X X X
....are:- • The Appellant-Financial Creditor extended various credit facilities to the Corporate Debtor-Himmat Steel Foundry Ltd. Accounts were declared as Non-Performing Assets by the Appellant on 01.10.1994. Credit Facilities were recalled on 28th July, 1995 and suit was filed by the Appellant for recovery which was transferred to the Debt Recovery Tribunal, Jabalpur (DRT). DRT passed decree dated 10th April, 2000 in favour of the Appellant for recovery of amount of Rs. 8,68,64,184.29/-. • On an Application O.A. No. 274 of 2001 filed by IDBI Bank, another Financial Creditor of the Corporate Debtor, decree was passed on 26th July, 2004 for recovery of sum of Rs. 8,97,47,340/-. • On 07th August, 2006, the Corporate Debtor submitted a proposal for 'One Time Settlement' offering an amount of Rs. 13.16 Cr. A notice under Section 13(2) of SARFAESI Act, 2002 was served by the Appellant for repayment of outstanding debt along with interest. On 03.09.2009, Appellant served possession notice. On 04.11.2009, the Corporate Debtor again submitted a proposal for One Time Settlement. Revised OTS Proposal was submitted. On 17th June, 2013 and 06th March, 2019, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l for the Appellant contends that Application filed under Section 7 by the Appellant was hopelessly barred by time. The Account was declared NPA on 01.10.1994 and after passing the decree by the DRT dated 10th April, 2000, Appellant could have availed the limitation of three years till 09th April, 2003. The decree by DRT in favour of IDBI Bank-another Financial Creditor of the Corporate Debtor is not relevant for purposes of computation of the Limitation for filing the Section 7 Application. The period of limitation for taking the action on basis of decree dated 10th April, 2000 came to end and any subsequent acknowledgement shall not save the limitation for the Appellant. Appellant cannot be permitted to take a case for explaining the limitation which was not mentioned in Form-A and the enclosures thereto. With regard to argument based on Section 25(3) of the Contract Act, Learned Sr. Counsel submits that no plea was taken before the Adjudicating Authority and for the first time in the Rejoinder-Affidavit filed in this Appeal, Section 25(3) has been referred to. The IBC is a complete Code in itself and has overriding effect on provisions inconsistent with IBC. The provisions of Se....
X X X X Extracts X X X X
X X X X Extracts X X X X
....any other financial creditors of the corporate debtor. 2. Issue Notice to the Respondent through Speed Post as well as Email. Requisites along with process fee, if not filed, be filed within three days. Reply Affidavit may be filed within two weeks. Rejoinder, if any, may be filed within two weeks, thereafter. List this Appeal 'For Admission (After Notice)' on 22nd April, 2022. Looking to the nature of the issues raised in the Appeal, Appeal may itself be decided on the next date." 8. The principal submission which has been placed by Mr. Abhijeet Sinha is that computation for period of limitation should be on the basis of decree passed by DRT in the suit filed by IDBI Bank dated 26th July, 2004. Learned Counsel for the Appellant has relied on Section 7(1) proviso and the Explanation. Section 7(1) is as follows: "7. (1) A financial creditor either by itself or jointly with other financial creditors, or any other person on behalf of the financial creditor, as may be notified by the Central Government may file an application for initiating corporate insolvency resolution process against a corporate debtor before the Adjudicating Authority when a default h....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e decree dated 26th July, 2004 in O.A. No. 274/2021 filed by the IDBI Bank is taken into consideration, the Application is within time. Copy of the Application filed under Section 7 is part of the record of this Appeal as Annexure BB. 12. We need to look into the Application under Section 7 to find out as to for what "default" the Application under Section 7 has been filed. Part-IV of the Application deals with particulars of financial debt. Entire Part-IV of the Application is as follows: "Part-IV Particulars of Financial Debt 1. Total amount of debt granted and Date of disbursement of loan The total amount granted by the Applicant Financial Creditor to the Corporate Debtor under the respective facility is as under: Sr. No. Date of Sanction Nature of Facility Total Amount (In Rs.) 1. *02-11- 1989 Overdraft against Book Debts 1,25,00,000 2. *02-11- 1989 Working Capital Loan 2,00,00,000 3. 02-01- 1990 Term Loan 55,00,000 4. 02-11- 1989 Working Capital Term Loan 1,24,00,000 5. 18-11- 1989 In Land Letter of Credit 30,00,000 6. 20-08- 1985 Deferred payment Guarantee Limit 1....
X X X X Extracts X X X X
X X X X Extracts X X X X
....her the Application is specifically filed confined to the default of the Corporate Debtor of the Financial Facilities extended by the Appellant, we do not find any substance in the submission of Learned Counsel for the Appellant that limitation for filing Section 7 Application be computed on the basis of decree of the IDBI Bank passed in favour of IDBI Bank dated 26th July, 2004. The Decree passed by the DRT dated 26th July, 2004 on the Application filed by the IDBI was not even filed before the Adjudicating Authority and for the first time the decree has been filed along with this Appeal. Mere filing decree in this Appeal shall not entitle the Appellant to compute the limitation for filing Section 7 Application in question on the basis of decree dated 26th July, 2004. We thus are of the view that the decree dated 26th July, 2004 passed in the O.A. of IDBI is irrelevant for the purposes of computation of limitation for filing Section 7 Application by the Appellant. The Adjudicating Authority has rightly come to the conclusion that Section 7 Application which was filed on 16th March, 2020 is barred by time. Limitation which was available to the Appellant on the basis of decree of DR....