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2020 (8) TMI 535 - AT - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of loan - main plea taken on behalf of the Appellant is that inasmuch as the ‘Recovery Certificate’ was issued based on the ‘Compromise Terms’ and the said ‘Recovery Certificate’ became final and binding upon the Respondent - Effect of an ‘Acknowledgment’ in writing as per Section 18 of the Limitation Act, 1963 - HELD THAT:- Any sum which is due and payable by a Corporate Debtor to the Bank (Financial Creditor) is a ‘Financial Debt’ as per Section 5 (8) (a) of the Code. With a view to sustain an Application under Section 7 of the I&BC, 2016 an Applicant is to establish an ‘Existence of Debt’, which is due from the ‘Corporate Debtor’. A dispute is to be a bona fide, reasonable/genuine one, of course, based on tangible materials. The ‘Debt’is not due, if it is not payable in law or on facts. A Corporate Debtor has an option to point out that the ‘Default’ had not occurred (inclusive of a disputed ‘claim’ and the same is not due. An ‘Adjudicating Authority’ is to ascertain whether the record is complete or otherwise, whether there is a ‘Debt’ and ‘Default’ was committed by the ‘Corporate Debtor’. It is an established fact that existence of an ‘Undisputed Debt’ is a condition precedent for commencement of ‘Corporate Insolvency Resolution Process.’ Effect of an ‘Acknowledgment’ in writing as per Section 18 of the Limitation Act, 1963 - HELD THAT:- It cannot be gain said that ‘Acknowledgment of Liability’ is to be in writing, signed by a person against whom the property or right is claimed and the same must be within the period of Limitation. Suffice it for this Tribunal to relevantly point out that to bring an acknowledgment within the meaning of Section 18 of the Limitation Act, 1963, it ought to be an unqualified one which gives a fresh cause of action - As per Article 62 of the Limitation Act, 1963, a suit to enforce the mortgage is to be filed within Twelve years from the date when money fell due, unless the limitation period is extended in terms of any provision of the Limitation Act. It is to be borne in mind Article 137 of the Limitation Act, 1963 not only applies to the Civil Procedure Code but also to the Special Acts. As a matter of fact, Article 137 constitutes a Residuary Article pertaining to ‘Applications’. As such it can be safely and securely be said that Article 137 will apply to the Civil Procedure Code or in respect of any other special statute. What Article 113 of the Limitation Act, 1963 relates to suit, the Article 137 of the Limitation Act, pertains to ‘Application’. Appeal dismissed without costs.
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