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2020 (8) TMI 543 - AT - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and default or not - Appellant proceeds to point out that in the present case in Form-1, the date of default is shown as 01.11.2012 and that the Application was filed under Section 7 of the ‘Insolvency and Bankruptcy Code’ on 06.09.2018 - time limitation - HELD THAT:- It cannot be gainsaid that as per Section 18 of the Limitation Act, 1963, an ‘acknowledgement’ is not limited in respect of the debt only, but in relation to ‘any property or right’, which is the subject matter of ‘LIS’ between the parties. Needless for this Tribunal to point out that there has to be an ‘acknowledgement’, as per ingredients of Section 18 of the Limitation Act, 1963 and it must be an unqualified one and the same will create fresh cause of action to a party/ litigant to cement its claim on such ‘acknowledgement’. The ‘acknowledgement’ must be an ‘acknowledgement’ of an existing liability - More importantly, an ‘acknowledgement of debt’ must relate to an admission of existing relationship of a Debtor and Creditor and then intention to continue it should also be evident. An ‘acknowledgement’ is to be in writing, the same is to be within the period of limitation and is to be signed by a litigant party whom the property or right is claimed - In the present case, the 1st Respondent/ Bank had provided adequate opportunity to the ‘Corporate Debtor’ to pay the balance amount and also admittedly issued a legal notice dated 26.06.2017 whereby and whereunder it was mentioned that they had sanctioned additional loan of ₹ 5 crores in the larger interests of the purchasers of the apartments to complete ‘Phase-I works’. The fact of the matter is that the ‘Corporate Debtor’ had failed to complete the Phase-I works, although additional fund was granted and because of the non-completion of the Phase-1 work, the persons who had thought of purchasing the apartments had not deposited the money in respect of BWSSB and BESCOM. The impugned order dated 16th July, 2019 passed by the Adjudicating Authority (NCLT), Bengaluru Bench admitting Section 7 Application is free from any legal error. Also, the plea of the Appellant that Application under Section 7 of the IBC is barred by limitation is also negatived by this Tribunal because of the fact that the said Application was filed before the Adjudicating Authority (National Company Law Tribunal), Bengaluru Bench on 05.09.2018, well within time, from the date of defaulted and stopped payment from 31.5.2017 - Appeal dismissed.
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