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2020 (3) TMI 1185 - AT - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Period of limitation - Financial Debt - Corporate Debtor failed to make repayment of its debt - HELD THAT:- An Acknowledgment does not create any new right and it extends the limitation period as per decision P. SREEDEVI VERSUS P. APPU [1990 (8) TMI 412 - KERALA HIGH COURT] - When a Debtor makes an acknowledgment of his liability to pay a Debt, it would mean that he was admitting a subsisting liability to pay. The burden lies on the Creditor to prove that an acknowledgment was made within time. An acknowledgment in writing must indicate Jural Relationship as that of ‘Debtor’ and ‘Creditor’ between the parties. As far as the present case present case is concerned the pendency of OA No. 310 of 2010 (filed on 14.7.2010) before the Debt Recovery Tribunal -III Kolkata will not preclude the first Respondent/bank to file the application under Section 7 of the Code before the Adjudicating Authority. If a party claiming the benefit of the Section 14 of the Limitation Act, 1963 had failed to secure relief in favour of earlier proceeding not because of any defect or Jurisdiction or some other cause of like nature, he cannot derive the benefit of the ingredients of Section 14 of the Act. By virtue of Deed of Guarantee Corporate Debtor being a‘Corporate Person’ owes debt to the Bank.In the present case the ‘Corporate Debtor’ is the Guarantor and in the year 2008, undertook to repay the debt in case of default by the Principal Borrower. As per Section 3(8) of the Code ‘Corporate Debtor’ means a Corporate Person who owes debt of any person. This Tribunal keeping in mind the present facts and circumstances of the instant case in an integral fashion, which float on the surface case comes to an inescapable conclusion that there is an acknowledgment of ‘Debt’ on various dates like 2.2.07, 17.2.07, 3.8.07 for the loan facilities availed by Mahaveer Construction the Letters of Guarantee Acknowledged by the Corporate Debtor (M/s Surana Metals Ltd.) on 16.9.10, 3.3.12, 27.5.15, 24.10.16 executed by the Appellant and on 8.12.18 by the Surana Metals Ltd. etc. This apart, here is an acknowledgment of Debt by the Principal Borrower but also the Corporate Debtor on 27.5.15 & 8.12.18 respectively.The object of specifying time limit for limitation is undoubtedly based on ‘Public Policy’.The application projected before the Adjudicating Authority(NCLT) Kolkata Bench, on 13.2.19 is well within limitation and not barred by Limitation. Appeal dismissed.
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