S.No.

5
IN THE NATIONAL COMPANY LAW TRIBUNAL
HYDERABAD BENCH – 1
ATTENDANCE CUM ORDER SHEET OF THE HEARING HELD ON
20-10-2023 AT 10:30 AM

CP (IB) No. 391/7/HDB/2022

u/s. 7 of IBC, 2016

IN THE MATTER OF:

Edelweiss Asset Reconstruction Company Limited …Financial Creditor

VS

GVK Gautami Power Limited …Corporate Debtor

C O R A M:-
DR. VENKATA RAMAKRISHNA BADARINATH NANDULA, HON’BLE MEMBER (JUDICIAL)
SH. CHARAN SINGH, HON’BLE MEMBER (TECHNICAL)

ORDER

Orders pronounced. In the result, the CP is admitted under section 7 of the IBC
ordering initiation of CIRP against the CD/ GVK Gautami Power Limited,
declaring moratorium and appointed Mr. Anil Kohli having Registration No.
IBBI/IPA-001/IP-P00112/2017-2018/10219 as Interim Resolution Professional.

Sd/- Sd/-
MEMBER (T) MEMBER (J)

Apoorva
 NATIONAL COMPANY LAW TRIBUNAL,
BENCH, AT HYDERABAD

C.P. (IB) No.391/07/HDB/2022

PETITION U/S 7 OF IBC, 2016 TO INITIATE CORPORATE

INSOLVENCY RESOLUTION PROCESS UNDER THE
INSOLVENCY AND BANKRUPTCY CODE, 2016

BETWEEN:
Edelweiss Asset Reconstruction Company Limited,
(acting in its capacity as a Trustee of EARC Trust SC 341)
Represented by its Authorized Signatory Vaishnavi Macherla
Edelweiss House,
Off C.S.T Road,
Kalina, Mumbai,
Maharashtra- 400098.
…. Financial Creditor
AND

GVK Gautami Power Limited

Plot # 10, Paigah Colony, Phase-I, Sardar Patel Road,
Secunderabad Hyderabad, Telangana – 500003
…. Corporate Debtor

Date of order: 20.10.2023

Coram:

Dr. N.Venkata Ramakrishna Badarinath, Hon’ble Member Judicial

Shri Charan Singh, Hon’ble Member Technical
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Appearance:

For Petitioner: Shri Shabbeer Ahmed, along with Shri.

Indraprateek Naidu, Advocates

For Respondent: Shri Ch.Pushyam Kiran, Advocate

PER BENCH
ORDER

1. This Petition is filed under Section 7 of Insolvency and

Bankruptcy Code (hereinafter to be referred as “Code”), read

with Rule 4 of Insolvency and Bankruptcy (Application to

Adjudicating Authority) Rules, 2016, by Financial Creditor

i.e. Edelweiss Asset Reconstruction Company Limited,

seeking admission of the Petition for initiation of Corporate

Insolvency Resolution Process (CIRP), granting moratorium

and appointment of Interim Resolution Professional as

prescribed under the Code and Rules thereon, contending

that the Respondent/ GVK Gautami Power Ltd, defaulted in

the payment of alleged debt of Rs. 1447,15,01,731/- (Rupees

One Thousand Four Hundred and Forty-Seven Crores Fifteen

Lakhs One Thousand Seven Hundred and Thirty-One Only)

which includes the Principal amount of Rs. 746,57,08,033/-

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and interest amount of Rs. 700,57,93,698/- as on

15.11.2022.

2. The averments in the Petition in brief are:-

2.1 The Corporate Debtor (CD) availed various loan facilities

from several lenders over the years for the purpose of setting

up a 469 MW gas based combined cycle power plant and

related facilities near Kakinada, Andhra Pradesh (Project).

The said loan facilities included rupee term loans of Rs. 1042

Crores and foreign currency loans for US$ 30 million.

2.2 The Corporate Debtor in the year 2010, owing to the

difficulties faced by the Corporate Debtor in servicing the

principal and interest to the then existing lenders, had

approached Infrastructure Development Finance Company

Limited (Assignor Bank) for grant of a Rupee Term Loan for

partial refinancing of existing loans of the CD (which were

obtained from various lenders.)

2.3 Accordingly, the Assignor Bank extended three Rupee

Loans:
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a. Rupee Loan – I of Rs. 500 Crores

b. Rupee Loan – II of Rs. 150 Crores
c. Rupee Loan – III (Funded Interest Term Loan) of Rs. 153
Crores

2.4 After extending the credit facilities of Rs. 650 Crores to the

CD through Rupee Loan – I and Rupee Loan – II, the

Assignor Bank became the lead lender and after the

withdrawal of Power Finance Corporation Limited i.e. the

erstwhile Security Agent and Facility Agent, the existing

lenders of the CD unanimously decided to appoint the

Assignor Bank to act as the Facility Agent and the Security

Agent. After Assignor Bank was appointed as the Facility

Agent and the Security Agent, Rupee Loan – III was

extended to the CD. Rupee Loan – III was specifically

granted for the purpose of financing the interest for a period

starting from 01.01.2014 to 29.02.2016 on the existing

loans disbursed by the Assignor Bank i.e. Rupee Loan – I

and Rupee Loan – II.

2.5 The Corporate Debtor availed a total of Rs. 803 Crores from

the Assignor Bank sanctioned as rupee term loans.

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However, the total amount disbursed to the CD is Rs.

746,57,08,033/-. Due to various defaults committed by the

CD, the CD’s loan account with the Assignor Bank was

declared as a Non-Performing Asset on 15.07.2014 by the

Assignor Bank.

2.6 The Financial Creditor/petitioner submits that in order to

settle its outstanding dues with all the lenders including the

Assignor Bank, the Corporate Debtor issued One Time

Settlement Proposals dated 07.03.2018 and 20.06.2018.

However, the said proposals were never materialized.

2.7 On 05.02.2018, the Corporate Debtor issued Revival Letter

to the Assignor Bank, acknowledging its liability to the

Assignor Bank.

2.8 Over the years, the CD has issued two One Time Settlement

Proposals to the Assignor Bank, one revival letter to the

Assignor Bank and one revival letter to the Financial

Creditor while acknowledging the debt of the Assignor

Bank/Financial Creditor in all its annual statements since

2015.
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2.9 The Assignor Bank assigned the Corporate Debtor’s debt to

the Financial Creditor herein vide Assignment Agreement

dated 24.08.2018.

2.10 Subsequently, a Revival Letter was issued by the Corporate

Debtor to the Financial Creditor on 25.06.2020,

acknowledging its outstanding debt due to the Financial

Creditor.

2.11 Later, a loan recall notice was issued by the Financial

Creditor to the Corporate Debtor on 21.01.2022 followed by

a notice under Section 13(2) of the SARFAESI Act.

2.12 According to the Financial Creditor/ Petitioner, the

outstanding is Rs. 1447,15,01,731/- (Rupees One

Thousand Four Hundred and Forty-Seven Crores Fifteen

Lakhs One Thousand Seven Hundred and Thirty-One Only)

which includes the Principal amount of Rs.

746,57,08,033/- and interest amount of Rs.

700,57,93,698/- as on 15.11.2022 and the date of default

is reckoned as 15th October, 2016 which is the date by

which the Corporate Debtor was obligated to make the first

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tranche as per the Amortisation Schedule of Rupee Loan -

III.

3. Counter is filed by Corporate Debtor inter-alia, contending as

follows:-

3.1 That the Corporate Debtor is the successful bidder to develop

and operate the 440 MW combined cycle power project at

Vetlapalem, Samalkot Mandal, East Godavari District and for

setting up, for operating and for collection of tariff, it had

entered into Power Purchase Agreement (PPA) approved by

Andhra Pradesh Electricity Regulatory Commission (APERC)

with Power Distribution Companies of Andhra Pradesh

(APDISCOMs) on 31.03.1997. Further the Corporate Debtor

had entered into several Agreements with GAIL, RIL etc.

However, since the Corporate Debtor faced many issues with

APDISCOMs, several litigations have been filed before various

forums claiming a sum of Rs. 1400 crores and is pessimistic

of succeeding in these litigations. It is further stated that from

the date of the first drawdown i.e. 15.06.2004 till the date of

filing the present petition, the Corporate Debtor had repaid a

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sum of Rs. 1,497.97 crores on term loans. Subsequently, the

account of Corporate Debtor was declared as NPA by IDFC

Bank on 15.07.2014. The Corporate Debtor has not offered

any comments on the Deed of Assignment dated 24.08.2018

that was entered between IDFC and the Petitioner as it is

unaware of the same as it was not a party to the same.

3.1.1 Petition is barred by limitation:

According to the Corporate Debtor, the present petition is not

maintainable as the Petitioner failed to exercise its rights

within the period of limitation. Further according to the

Corporate Debtor, the cause of action had arisen on

15.07.2014, but the present petition is filed on 07.12.2022.

The amount claimed by the Petitioner in the present petition

is not reflected in the audit reports and balance sheets of the

Respondent for the years 2015-16, 2016-17 and 2018-19,

though certain amount shown to be in default by the

Respondent to the Petitioner in the audit report for the year

2018-19. Further it is stated that the audit report is of

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16.05.2019 and even if this date is taken into consideration,

the present petition is barred by limitation.

3.1.2 According to the Corporate Debtor, the letters relating to one

time settlement issued to the Consortium of Banks including

IDFC (but not the petitioner herein) on 07.03.2018 &

20.06.2018 and the Revival Letter dated 05.02.2018 issued to

IDFC Bank (but not to the Petitioner), cannot be considered as

acknowledgement of debt.

3.1.3 The Corporate Debtor further submits that the revival letter

dated 25.06.2020 issued by the Petitioner is beyond the period

of three years from the date of default i.e. 15.07.2014 (NPA) as

there is a specific reference in the said letter with regard to

date i.e. 30.09.2017 for the purpose of Section 18 of the

Limitation Act, 1963. As such the petition according to the

Corporate Debtor is barred by limitation.

3.1.4 The Corporate Debtor further contended that the Petitioner

has claimed the date of default as 15.10.2016, however

according to the Corporate Debtor, the date of declaration of

NPA should be reckoned as date of default which is

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15.07.2014. The Corporate Debtor further submitted that even

assuming but not admitting, if 15.10.2016 is taken as the date

of default, even then the Petition is barred by limitation.

3.2 Suppression of material facts:-

Prior to filing of the present petition, the Petitioner had filed

OA No. 593 of 2022 before the Debts Recovery Tribunal-I

Mumbai with respect to the same claim and pending

adjudication. However, the Petitioner had suppressed the said

fact in the petition and allege that the Petitioner has

approached this Tribunal with unclean hands.

3.3 It is further submitted that huge sum of money is due from

APDISCOMs and claims to the tune of Rs. 1,400 crores is

pending adjudication.

3.4 Thus submitting, prayed this Tribunal to take into

consideration the circumstances stated in the counter while

deciding the present case.

4. Rejoinder is filed by the Financial Creditor rebutting to the

contentions raised in the counter, as under:-

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4.1 In response to the averments stated in the counter that the

Corporate Debtor has initiated several legal proceedings

against the DISCOMs and other Governmental authorities

claiming a sum of Rs. 1400 crores and there is a likelihood of

Corporate Debtor succeeding in those proceedings, the

Financial Creditor submits that no material is placed on

record to demonstrate that the Corporate Debtor would

succeed in its endeavor.

4.2 It is further contended that this Tribunal while deciding

Section 7 IBC petition, only has to see whether there is debt

and default but not the operational difficulties being faced by

the Corporate Debtor. In the present case, the Corporate

Debtor not only failed to repay the debt, but had acknowledged

the debt by way of One Time Settlement letters issued to IDFC

Bank (Assignor Bank) and Loan Revival Letters issued to the

Assignor Bank and the Petitioner/Financial Creditor. It is

further stated that the proceedings initiated by the Corporate

Debtor against the DISCOM authorities before various courts

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can still be continued by the Resolution Professional during

CIRP.

4.3 The Petitioner contends that the Corporate Debtor has only

repaid a part of the debt that is owed to the Financial Creditor

and a substantial amount is still pending. The Independent

Audior’s Report of the Corporate Debtor for the Financial Year

2018-19 annexed at page 1255 of the petition shows

demonstrate the same.

4.4 In response to the contention of the Corporate Debtor that the

Petition is barred by limitation, the Petitioner submits that

though the Assignor Bank declared the loan account of the

Corporate Debtor as NPA on 15.07.2014, however, the said

date of NPA was pertaining to loan accounts for Rupee Loan-1

and Rupee Loan-II. Thereafter, the Assignor Bank extended

Rupee Loan-III for Rs.153 crores specifically granted for

financing the interest for the period from 01.01.2014 to

9.02.2016 on the existing loans disbursed by the Assignor

Bank. The first instalment for repayment of the loan was

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15.10.2016 as per the Amortisation Schedule. Further the

Corporate Debtor has periodically acknowledged its debt due

to the Assignor Bank in the Independent Auditor’s Reports for

the years 2015-16 and 2016-17, annexed at page 1203 to the

petition, Loan Revival Letter to the Assignor Bank on

05.02.2018 annexed at 1142, One Time Settlement letters

dated 07.03.2018 and 20.06.2018 and the Loan Revival letter

dated 25.06.2020, which extends the limitation to the

Petitioner to file the present petition. To buttress its case, the

Petitioner further placed reliance on the Suo Motu Writ

Petition (civil) No. 3/2020 whereby limitation period was

extended with effect from 15.03.2020 till 28.02.2022.

Therefore, according to the Petitioner, the present petition is

within limitation.

4.5 In response to the contention of the Corporate Debtor that the

Petition has approached this Tribunal with unclean hands, the

Petitioner submits that it is a matter of record that OA No. 593

of 2022 has been initiated by Financial Creditor before DRT

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Mumbai-1, however it does not bar the Financial Creditor to

initiate proceedings before this Tribunal under IBC.

5. Clarificatory Memo by the Financial Creditor

The record reflects that upon hearing the Ld. Counsels for both

sides, this Tribunal had directed the Ld. Counsel for the

Financial Creditor to explain how the limitation aspect is saved

as the revival letter of Corporate Debtor has been purportedly

executed after three years from the last date on which payment

is due. Accordingly, the Financial Creditor filed clarificatory

memo stating that the date of default in an application under

Section 7 of IBC need not be the date on which the loan

account of the Corporate Debtor was notified as NPA by relying

on the ruling of Hon’ble Supreme Court of India in re Laxmi

Pat Surana Vs.Union Bank o India (2021 8 SCC 481.

Further the Petitioner emphasized acknowledgement of debt

owed by Corporate debtor by way of OTS letters dated

07.03.2018 and 20.06.2018 issued by the Corporate Debtor to

the Assignor Bank. As such, according to the Petitioner, fresh

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period of limitation is reckoned from the issuance of the OTS

letter dated 20.06.2018. Though the petitioner ought to have

filed the petition before 19.06.2021, the present petition is

filed on 07.12.2022, as according to the Petitioner, the

limitation is saved by virtue of Hon’ble Supreme Court of India

in Suo Motu (C) No. 3/2020, whereby period from 15.03.2020

till 28.02.2022 was excluded for the purpose of computation

of limitation. Therefore, the Financial Creditor had limitation

till 31.05.2023.

6. Additional Counter by the Corporate Debtor to the

clarificatory memo filed by the Petitioner.

The Corporate Debtor submits that there is no

acknowledgement of liability by the Respondent as required

under Section 18 of Limitation Act, 1963 within a period of

three years from 15.07.2014. It is further stated that the

judgements relied upon by the Petitioner are different from the

present case. It is alleged that the Petitioner in order to bring

the present petition within limitation has recorded the date of

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default as 15.10.2016 instead of 15.07.2014. According to the

Corporate Debtor the revival letter dated 05.02.2018 cannot

be considered as acknowledgement of debt by the Corporate

Debtor for the purpose of extending limitation u/s 18 of

Limitation Act as it is beyond three years from the date of

default i.e. 15.07.2014 and because the loan agreements

referred to in the revival letter are not the loan agreements on

the basis of which the present petition is filed. Rest of the pleas

taken in the additional counter have already been made in the

main counter.

7. Written submissions are filed by both the parties reiterating

the averments made in the Petition and rebuttal by way of

counter. The judgements relied by both the parties are as

under: -

Financial Creditor/Petitioner

(1) Hon’ble Supreme Court of India in re Laxmi Pat Surana vs

Union Bank of India (2021) 8 SCC 481, wherein it has used

the expression “default” which has been defined in Section 3

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(12) of IBC and does not mention that such a “default” shall

mean the date on which the loan account of the CD was notified

as NPA.

(2) Hon’ble NCLAT in re Abhay Narendra Lodha vs Bank of

Baroda in Company Appeal (AT)(Insolvency) No. 997/2022

and in re Edelweiss Asset Reconstruction Company

Limited vs Perfect Engine Components Pvt Ltd, 2022 SCC

OnLine NCLAT 1622 wherein the case of Laxmi Pat Surana

was referred to and reiterated the principles laid down therein

that the date of declaration of NPA need not be the date of

default.

(3) Hon’ble Supreme Court of India in re Khan Bahadur

Shapoor Freedom Mazda s Durga Prasad Chamaria and

ORs AIR 1961 SC 123, wherein it was held that

Acknowledgement of debt should relate to a present subsisting

liability indicating a “Jurial relationship” between the Debtor

and the Creditor.

(4) Hon’ble Supreme Court of India in re Innoventive Industries

Ltd Vs ICICI Bank and Anr (2018) 1 SCC 407, wherein it

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has held that in a Section 7 Application, the Adjudicating

Authority is satisfied that there exists a debt due and default,

then the petition is fit for admission.

(5) NCLAT order in Suzlon Synthetics Ltd Vs Stressed Asset

Stabilization Fund and Anr in Company Appeal (AT)

(Insolvency) No. 662-663 of 2022, wherein it was held that

in an application under Section 7 of IBC, the exact amount of

financial debt is immaterial as long as the amount admitted

by the Corporate Debtor is more than the threshold amount of

Rs. 1 crore.

(6) NCLAT order in Asset Reconstruction Company (India)

Limited vs Uniworth Textiles Limited in Company Appeal

(AT) (Insolvency) No. 991 of 2020, wherein it was observed

that while looking at the entries of a balance sheet, one should

consider the overall scenario after taking into account the

Director’s Report, Auditor’s report, notes to the accounts etc.

(7) Hon’ble Supreme Court of India, in Suo Motu Writ Petition

(Civil) No. 3 of 2020, held that while computing the period of

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limitation, the period from 15.03.2020 till 28.02.2022 shall

stand excluded.

Respondent/Corporate Debtor
(1) Hon’ble Supreme Court of India in Dena Bank vs C.

Shivakumar Reddy (2021) 10 SCC 330 142-143, wherein it

was held that a petition under Section 7 of IBC has to be filed

within three years from the date of declaration of the loan

account of the Corporate Debtor as NPA unless there is an

acknowledgement of debt under Section 18 of the Limitation

Act, 1963, by the Corporate Debtor within a period of three

years from the date of declaration as NPA.

(2) Hon’ble Supreme Court of India in re Gaurav Hargovindbhai

Dave vs. Asset Reconstruction company (I) Ltd, (2019) 10

SCC 572, wherein it was held that the right to sue accrued on

21.07.2011 (NPA date) and therefore, the period of limitation

expired in 2014.

(3) Hon’ble NCLAT in Harsukhbhai P. Lakkad vs. Bank of

Baroda in Company Appeal (AT) (Insolvency) No. 32 of

2020, wherein it was held that the date of declaration of the

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account of the Corporate Debtor is the date of default and that

the Petitioner cannot show a subsequent date as the date of

default to derive advantage of filing the Section 7 petition

within limitation.

(4) Hon’ble NCLAT in Deepak Vegpro Pvt Ltd vs. Shree Hari

Agro Industries Ltd (Company Appeal (AT) (Insolvency) No.

1085 of 2019, wherein the Hon’ble NCLAT held that the loan

amount shown in the balance sheets is vastly different from

the amount being claimed in the petition filed under S.7 of IBC

and that, therefore, it would not amount to an unequivocal

and unqualified acknowledgement of debt.

(5) Hon’ble Supreme Court in re Vidarbha Industries Power

Limited vs Axis Bank Limited (2022) 8 SCC 352, the

Hon’ble Supreme Court held that the Tribunal under Section

7 of IBC has been conferred with the discretion regarding the

admission of a petition even though there is a default on the

part of the Corporate Debtor.

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8. In the light of the contest, the only issue that arises for

consideration is:

Whether the financial debt which is due and payable by the

Corporate Debtor is barred by limitation?

9. We have heard Shri Shabbeer Ahmed, Ld. Counsel for the

Financial Creditor and Shri Pushyam Kiran, Ld. Counsel for

the Corporate Debtor, perused the record and case law.

Point:-

Whether the financial debt which is due and payable by

the Corporate Debtor is barred by limitation?

10. According to the Ld. Counsel for the Financial Creditor, the

account of the Corporate Debtor has been declared as NPA on

15.07.2014 by the Lender Bank, consequent to the defaults

committed. Ld. Counsel further states that, as per the

Amortisation Schedule of the Rupee Loan-III Agreement, the

Corporate Debtor was obliged to make the first tranche of

payment on 15.10.2016, which the Corporate Debor failed to

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pay. Therefore, the date of default in this case is 15.10.2016

but not 15.07.2014, the date of NPA (as sought to be

contended by the Ld. Counsel for the Corporate Debtor).

11. Ld. Counsel further submitted that post 15.10.2016, the

Corporate Detor has regularly acknowledged the deb in its

annual reports and the independent audit reports of the

financial years 2015-16, 2016-17 and 2018-19, copies of

which are filed. The Ld. Counsel further states that, apart

from acknowledging the debt, the Corporate Debtor also on

15.02.2018 executed a Revival Letter dated 25.06.2020

acknowledging the debt. All these debt acknowledgements

being within 3 years from the date of default and the present

petition having been filed on 08.02.2022 is well within the

prescribed period of limitation. Therefore, the plea that the

subject debt is barred by limitation is unsustainable and

untenable. In support of the plea that the date of default

cannot be the date of NPA, the Ld. Counsel relied on the

following rulings: -
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1. Hon’ble NCLAT in re Abhay Narendra Lodha vs Bank of

Baroda in Company Appeal (AT)(Insolvency) No. 997/2022

2. Edelweiss Asset Reconstruction Company Limited vs

Perfect Engine Components Pvt Ltd, 2022 SCC OnLine

NCLAT 1622.

12. Per Contra, the Ld. Counsel for the Corporate Debtor while

strongly contending that the date of NPA being 15.07.2014,

the default cannot be postponed to 15.10.2016 as contended

in this case. Therefore, the contention of the Ld. Counsel for

the Financial Creditor that the date of default is 15.10.2016 is

untenable. Ld. Counsel while accepting that the entries in the

balance sheet would constitute acknowledgements of debt,

only when such an entry is categorically and unequivocally

and not when there is some serious discrepancies as regards

the amount payable. Accordingly, to the Ld. Counsel, the date

of default in this case since required to be reckoned from

15.07.2014 i.e. the date of NPA, the acknowledgement of debt

if any, shall be within 3 years from 15.07.2014. The two audit

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reports and extract of balance sheets which are within three

years from 15.07.2014 are of the years 2015-16 and 2016-17.

According to the Ld. Counsel, a perusal of the Audit Reports

for the year 2016-17 would show that no principal amount

stated as being due to IDFC Bank/lender bank and the

interest amount of Rs. 2.79 crores is shown as amount of

default. Ld. Counsel contended that the audit report for the

year 20116-17 shows the default amount as Rs.

35,84,71,483/-. However, extract of the balance sheet for the

year 2016-17 does not provide any figure as being due to the

Financial Creditor and the claim which is due and payable in

the present petition is Rs. 746,57,08,033/- which is

substantially higher to what was been reflected in the Audit

Reports for the year 2015-16 and 2016-17. The Ld. Counsel

submits that the balance sheet cannot be relied upon,

therefore, the claim is barred by limitation. In support of his

contentions, the Ld. Counsel relied on the following rulings.

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(i) Hon’ble NCLAT in Harsukhbhai P. Lakkad vs. Bank of

Baroda in Company Appeal (AT) (Insolvency) No. 32

of 2020, wherein it was held that the date of declaration

of the account of the Corporate Debtor is the date of

default and that the Petitioner cannot show a subsequent

date as the date of default to derive advantage of filing

the Section 7 petition within limitation.

(ii) Hon’ble NCLAT in Deepak Vegpro Pvt Ltd vs. Shree

Hari Agro Industries Ltd (Company Appeal (AT)

(Insolvency) No. 1085 of 2019, wherein the Hon’ble

NCLAT held that the loan amount shown in the balance

sheets is vastly different from the amount being claimed

in the petition filed under S.7 of IBC and that, therefore,

it would not amount to an unequivocal and unqualified

acknowledgement of debt.

13. Barring the plea of limitation, no other plea is urged before us

by the Corporate Debtor.

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14. In the light of the contest as afore-stated, we have carefully

perused the record. The date to be reckoned for the purpose

of calculating the limitation in a petition filed under section 7

of IBC is no longer res-integra as held in catena of rulings,

including in the ruling of Dena Bank (Now Bank Of Baroda) vs

C. Shivakumar Reddy (2021) 10 SCC 330 142-143, wherein

Hon’ble Supreme Court of India has categorically held as

under:-

A petition 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.

Therefore, the argument that the date of NPA shall be reckoned

for the purpose of calculating the limitation cannot be

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accepted. Having said so, it has been seen that the

acknowledgement of debt claimed by the Corporate Debtor are

as per Section 18 of the Limitation Act, lest the limitation

cannot be saved, though there is controversy.

14. As regards the amount shown in the balance sheets for the

years 2016-16 & 2016-17, as per the Corporate Debtor, the

Revival Letters dated 05.02.2018 and 25.06.2020 are not in

dispute. The first revival letter dated 05.02.2018 is certainly

within three years from the date of default. So also, the second

revival letter dated 25.06.2020. The present petition since filed

on 08.02.2022 is well within the period of limitation.

The point is answered accordingly.

15. In the light of our discussion on the above point, we are of the

considered view that the Petitioner had satisfied there is a

Financial Debt due and payable by the Corporate Debtor and

its default. We also found that this Petition is in order. Hence,

the Adjudicating Authority hereby admits this Petition under

Section 7 of IBC, 2016, declaring moratorium for the purposes

referred to in Section 14 of the Code, with following directions:

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ORDER

(1) The Bench hereby prohibits the institution of suits or

continuation of pending suits or proceedings against the
Corporate Debtor including execution of any judgment, decree
or order in any court of law, Tribunal, arbitration panel or other
authority; Transferring, encumbering, alienating or disposing of
by the Corporate Debtor any of its assets or any legal right or
beneficial interest therein; any action to foreclose, recover or
enforce any security interest created by the Corporate Debtor in
respect of its property including any action under Securitization
and Reconstruction of Financial Assets and Enforcement of
Security interest Act, 2002 (54 of 2002); the recovery of any
property by an owner or lessor where such property is occupied
by or in possession of the corporate Debtor;
(2) That the supply of essential goods or services to the Corporate
Debtor, if continuing, shall not be terminated or suspended or
interrupted during moratorium period.
(3) That the provisions of sub-section (1) of Section 14 shall not
apply to such transactions as may be notified by the Central
Government in consultation with any financial sector regulator.
(4) That the order of moratorium shall have effect from date of this
order till the completion of the Corporate Insolvency Resolution
Process or until this Bench approves the Resolution Plan under
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Sub-Section (1) of Section 31 or passes an order for liquidation

of Corporate Debtor under Section 33, whichever is earlier.

(5) That this Bench hereby appoints Shri Anil Kohli having IBBI
Registration No. IBBI/IPA-001/IP-P00112/2017-2018/10219
as Interim Resolution Professional, whose contact details are:

e-mail : insolvency@arck.in
Address: Flat No. 409, 4th Floor Ansal Bhawan
16 Kasturba Gandi Marg, Connaught Place
New Delhi – 110001
Mob No. 9810071182
as Interim Resolution Professional to carry the functions
as mentioned under the Insolvency & Bankruptcy Code.
Proposed IRP to file Form-2 within 2 days of receipt of this
order. Authorisation for Assignment is valid till 28-03-
2024. This information is also available in IBBI Website.
Thus, there is compliance of Regulation 7A of IBBI
(Insolvency Professionals) Regulations, 2016, as amended.
Therefore, the proposed IRP is fit to be appointed as IRP
since the relevant provision is complied with.
(6) That the Public announcement of Corporate Insolvency
Resolution Process shall be made immediately as specified
under section 13 of the Code.
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(7) The Petitioner is directed to deposit an amount

Rs.2,00,000/- with the IRP to meet the initial CIRP
expenses including the fee of IRP.
(8) The Financial Creditor is directed to communicate this
order to the IRP appointed in this case.
(9) The Registry of this Tribunal is directed to send a copy of
this order to the Registrar of Companies, Hyderabad for
marking appropriate remarks against the Corporate
Debtor on website of Ministry of Corporate Affairs as being
under CIRP.

The Petition is admitted accordingly.

SD/- SD/-
(Charan Singh) (Dr. N. V. Ramakrishna Badarinath)
Member (Technical) Member (Judicial)

Binnu