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TMI Blog2020 (4) TMI 515X X X X Extracts X X X X X X X X Extracts X X X X ..... or defaulted in payment of debt/loan facility availed by the Corporate Debtor. 3. Learned Counsel for the Appellant submitted that the Application filed by the Respondent No. 1 herein before the Adjudicating Authority was contested by filing objections to the said Application and took a specific stand that the Application filed by the Financial Creditor was time barred. He submits that the Adjudicating Authority admitted the Application and initiated Corporate Insolvency Resolution Process (in short 'CIRP') of the Corporate Debtor. 4. Learned Counsel for Appellant submitted that the Adjudicating Authority did not consider the objections taken by the Corporate Debtor. Hence, the present Appeal has been filed on the grounds as mentioned in Appeal at paragraph-9. 5. Learned Counsel for the 1st Respondent filed Reply Affidavit to this Appeal and vehemently opposed the grounds raised by the Appellant that the Application filed by them is time barred. He submits that though the date of default was mentioned in statutory form-1, as per the rules, shown as 05.11.2014. However, the Application was filed before the Adjudicating Authority on 30.08.2018 is within limitation period for the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Adjudicating Authority, after hearing the parties observed as under: ... "19.2 The CD has defaulted in making repayment of loan/cc to the Petitioner Bank and the date of default is 05.01.2014. the Statement of Accounts and the CIBIL Reports submitted by the Applicant Bank confirm the default committed by the Corporate-Debtor. 19.3 The Petitioner Bank has filed the petition within the period of limitation, as the date of mortgage of the property is 18.11.2010, SARFAESI proceeding initiated in 2014, DRT proceedings started in 2017, Onetime settlement (OTS) revised offer (from Rs. 12.00 Crores to Rs. 14.56 Crores) letter dated 01.06.2016 was submitted by the Corporate Debtor to the applicant Bank and the Credits have come into the loan accounts on 31.03.2017. 19.4 The present I.B. Petition is filed by duly authorised official of the Petitioner Bank in a prescribed format under Section 7 of the I.B. Code annexing copies of loan documents confirming the existence of debt default and proposed a name of Resolution professional to act as an Interim Revolution Professional (IRP) 20. Considering the material, papers filed by the Petition Bank and the facts mentioned in the para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven by the Appellant by using the words as "without prejudice". However, it is contended by the Respondent No. 1 herein, that in the OTS Proposal dated 01.06.2016 there is no use of word "without Prejudice". Therefore, the second OTS Proposal dated 01.06.2016 can be treated as an acknowledge for the purpose of limitation. However, we are not inclined to accept such submission made by learned Counsel for the Respondent No. 1 herein. 10. Learned Counsel for the Respondent No. 1 further submitted that the Guarantors have transferred the amount of Rs. 1,26,619/- and Rs. 1,28,654/- to the Account of the Corporate Debtor on 01.04.2017, therefore the period of limitation is to be counted from 01.04.2017. It is the argument of the learned Counsel for the Appellant that the amounts have been appropriated by the Respondent No. 1 and therefore, appropriation of the Amount by the Respondent No. 1 herein from the Guarantor will not extend the period of limitation. In this regard, Section 19 of the Limitation Act need to be referred: "Section 19 in The Limitation Act, 1963 19. Effect of payment on account of debt or of interest on legacy.-Where payment on account of a debt or of interest o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Respondent No. 1 also taken a stand that the Appellant filed an Application under Section 17 of 'SARFAESI' Act wherein the Appellant admitted the fact of taking loan and failed to repay the same. Therefore, he submits that the same acts as an acknowledgment for the purposes of limitation. 13. We have perused the Application filed by the Appellant before the DRT, Ahmedabad and at page 25 of the Reply filed by Respondent No. 1, sub-para 2 of paragraph-5 that "the Respondent Bank states that the Principal Company had availed various facilities from the Respondent- Bank." Further the Respondent No. 2 sanctioned the said facilities towards hypothecation, mortgage of movable and immovable properties owned by the borrower Guarantor, Mortgager as per the Respondent No. 1. In the grounds of the Application, the Applicant (Appellant herein) has taken the technical grounds that the notices have not been served on all the borrower as per Section 13(2) of 'SARFAESI' Act and also taken various other objections which cannot be presumed that there is an acknowledgment by the Appellant herein to the Bank. Therefore, even on this count, the Respondent No. 1 failed to establish the Application f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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