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2021 (12) TMI 628 - AT - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Application was filed beyond three years from the date on which the Account was classified as ‘Non Performing Assets’ - demand made under Section 13(2) of SARFAESI Act, 2002 - time limitation - acknowledgment of liability - HELD THAT:- The object of Section 18(2) of the Limitation Act, 1963 is to ascertain the real date written and signed acknowledgment for the purpose of saving limitation and to exclude fraudulent testimony. Apart from that, unconditional acknowledgment is an implied promise to pay the debt, that is the logical inference, if nothing is uttered to the contrary, as opined by this Tribunal. It is by now well settled that the pendency of the proceeding under SARFAESI Act, 2002 is not a bar in initiating ‘CIRP’ under I&B Code, 2016. It is to be borne in mind that the Respondent/Financial Creditor/ Applicant had given a ‘Reply’ on 30.03.2016 for the proposed ‘One Time Settlement’ made by ‘Corporate Debtor’. Continuing further, it is to be remembered that the Respondent/Financial Creditor had addressed Reply letter to the ‘Corporate Debtor’ dated 19.02.2018 for ‘One Time Settlement’ of the loan amount which was accepted by the Respondent based on Terms and Conditions specified in the Sanction Letter dated 28.02.2018 - It cannot be gainsaid that the Respondent/Financial Creditor, after considering the proposal of the Appellant for ‘One Time Settlement’ through its letter dated 19.02.2018 granted said settlement in and by which the ‘Corporate Debtor’ was required to pay ₹ 2 Crores as against its liability of ₹ 17.12 Crores as on 01.12.2015. As such it is crystalline clear that the new contract had come into play on 19.02.2018 and further that the Application was filed by the Respondent/Applicant (under Section 7 of IBC) on 25.10.2018 which is within period of limitation. The ‘OTS’ proposal of the ‘Corporate Debtor’’ dated 28.02.2018 was accepted by the authorised signatory of the ‘Corporate Debtor’ to the Terms and Conditions and it is brought to the fore that through a letter dated 07.06.2018 of the Respondent/Financial Creditor/Applicant addressed to the ‘Corporate Debtor’, the ‘OTS Letter’ was revoked because of the non-payment of settlement sum by the ‘‘Corporate Debtor’’ in spite of there being loss of time. Suffice to it, to the Tribunal to point out that in the present case, as per new contract, the ‘Corporate Debtor’, apart from the fact that it paid ₹ 1 crore, committed a default in regard to the upfront payment of sum of ₹ 9 Crores in response to the settlement of loan amount and in any event, in law, the new promise had given new cause of action enabling the Respondent/’Corporate Debtor’/Applicant to initiate CIRP under IBC resulting in filing of Application under Section 7 of IBC against the ‘Corporate Debtor’, which is well within period of limitation. Appeal dismissed.
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