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Indiabulls Housing Finance Limited vs. Revital Realty Private Limited - (NATIONAL COMPANY LAW APPELLATE TRIBUNAL) (24 May 2023)

Application under Section 7 of the IBC is filed only when the right to apply against default accrues and for every default, there is a fresh period of limitation

MANU/NL/0494/2023

Insolvency

The present appeal has been filed under Section 61 of the Insolvency & Bankruptcy Code, 2016 (IBC) against the 'impugned order' passed by the 'Adjudicating Authority' whereby the 'Adjudicating Authority' dismissed the application of the 'Appellant' treating as barred by limitation. Aggrieved by the same, the 'Appellant' has preferred the present appeal.

The 'Financial Creditor' gets rights for filing an Application under Section 7 of the IBC when the right to apply against default accrues and for every default, there is a fresh period of limitation. It seems that the 'Adjudicating Authority' has taken the date of 9th May, 2016 as the date of default presuming that the first instalment was due, payable and not paid and therefore, date of default became 9th May, 2016. Present Tribunal take note from the 'List of Dates' which has been filed along with the present appeal that, 9th May, 2016 is the date when entire loan was disbursed by the 'Appellant' to the 'Corporate Debtor'. It seems that, the 'Adjudicating Authority' has further wrongly presumed that it is the first default which is only relevant date for counting limitation period and has ignored the subsequent defaults which give fresh and new cause of default / defaults.

Therefore, it emerges that either of the date i.e. 19th August, 2018 i.e., the date on which the instalment was due, resulting into default payable and not paid or the date of 28th March, 2022 when the entire loan account stood defaulted in terms of Loan Recall Notice dated 25th March, 2022, would have been and is covered within the limitation period. The 'Adjudicating Authority' clearly erred in taking the date of default as 9th May, 2016 for computing the limitation for filing the Section 7 Application.

Present 'Appellate Tribunal' has no hesitation in holding that the 'impugned order' was incorrect and is set aside. Section 7 Application is revived before the 'Adjudicating Authority' to be heard and decided in accordance with law. Appeal allowed.

Tags : PERIOD OF LIMITATION   INSOLVENCY AND BANKRUPTCY CODE  

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