TMI Blog2019 (9) TMI 1296X X X X Extracts X X X X X X X X Extracts X X X X ..... t outstanding is denied. With the Application, there were already sufficient documents showing existence of debt and particulars were given of the litigations pending and thus, the Adjudicating Authority should not have dismissed the Application holding that the debt was time barred. The matter is remitted to the Adjudicating Authority (National Company Law Tribunal, New Delhi Bench) - The Application under Section 7 is restored. - Company Appeal (AT) (Ins) No.785 of 2018 - - - Dated:- 4-9-2019 - Justice S.J. Mukhopadhaya [Chairperson], Justice A.I.S. Cheema Member (Judicial) Kanthi Narahari Member (Technical) For Appellant: Shri Sumesh Dhawan, Ms. Vatsala Kak and Ms. Geetika Sharma, Advocates, Ms. Seema Jungid, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Bench. Adjudicating Authority by short Order proceeded to dismiss the Application. 4. Aggrieved by the Impugned Order, the present Appeal has been filed. The Appellant is relying on the various documents Appellant had filed along with the Application under Section 7 as well as additional documents which have been produced (with Diary No.8538) and claims that the amount in default could not be said to be debt not legally enforceable. It is the case of the Appellant that even the balance sheet for the Financial Year 2015 2016 of the Respondent Corporate Debtor (Page 147 Diary No.8538) showed that the Company was still showing that the secured loans of the Axis Bank and IDBI Bank were there. The Appellant also referred t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant. 5. Against this, the Respondent Corporate Debtor has submitted that the loan of IDBI became NPA on 30th June, 2007 and recalled the IDBI loan vide Notice dated 13.07.2012 and that date must be treated as date of default and thus, the Application under Section 7 must be said to be time barred. As regards Axis Bank, it is argued that the account became NPA on 5th January, 2007 and the bank recalled loan on 25th November, 2007 and thus, the claim with regard to loan from Axis Bank also must be said to be barred by limitation. Relying on the Judgement in the matter of B.K. Educational Services Pvt. Ltd. vs. Parag Gupta and Associates (AIR 2018 SC 5601) passed by Hon ble The Supreme Court of India, it is argued that deb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mortgage of immovable property by the Corporate Debtor on 20.01.2003 (Annexure A-5 Page 106). The Application shows that on 06.08.2003 Corporate Debtor asked for additional loan of ₹ 100 Lakhs and term loan was sanctioned. Agreement in this regard was executed along with further documents on 12.11.2003 and there was further mortgage of property by the Corporate Debtor. It is stated that IDBI recalled entire loan outstanding on 13.07.2012. It appears Notice dated 28.03.2008 under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI - in short) was issued. The Application No.02/2010 was filed before the District Magistrate of Khurda, Bhubneswar. Against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tober, 2006 along with acknowledgement and when there was default, Axis Bank approached DRT filing OA 18/2009. Respondent does not show as to how when DRT was moved, the claim of Axis Bank could be said to be time barred. As regards the claim by IDBI, admittedly there were documents of mortgage in existence. There is mortgage dated 12th November, 2003 and it appears that IDBI took action under SARFAESI in 2010. There is no substance in the argument of the learned Counsel for the Respondent that Article 62 of the Limitation Act cannot be referred to because the said Article refers to Suit. Under IBC, relevant factor for the purpose of limitation is to consider if the debt is enforceable in law or not. Under Article 62 of the Limitation Act t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation, there were already sufficient documents showing existence of debt and particulars were given of the litigations pending and thus, the Adjudicating Authority should not have dismissed the Application holding that the debt was time barred. 10. For reasons mentioned, we allow the Appeal. The Impugned Order is quashed and set aside. The matter is remitted to the Adjudicating Authority (National Company Law Tribunal, New Delhi Bench). The Application under Section 7 No.(IB)-1243(ND)2018 is restored. The Adjudicating Authority is directed to admit the Application (after Notice to the Corporate Debtor, in case the Corporate Debtor is desirous of paying the dues before admission Order). No orders as to costs. - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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