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TMI Blog2019 (10) TMI 1272X X X X Extracts X X X X X X X X Extracts X X X X ..... 12. The Corporate Debtor also submitted a proposal for revival on 16.02.2015 to the consortium. The Corporate Debtor, however, could not meet its obligation leading to classification of its account as N.P.A. as on 13.06.2015 by the Financial Creditor. The Financial Creditor also sent a notice on 19.01.2016 requiring the Corporate Debtor to pay outstanding sum as on 31.12.2015 with further interest. 3. The learned counsel appearing on behalf of the Financial Creditor narrated these basic facts and drew our attention of page 681 of V-3 containing balance confirmation by the Corporate Debtor as on 30.04.2013. Thereafter, he referred to page 826 to drew our attention to the proposal of revival sent by the Corporate Debtor on 16.02.2015, wherein acknowledgement of debt had been done. Thereafter, he drew our attention to page 897 containing CIBIL report showing the amount payable by the Corporate Debtor to the Financial Creditor. In this regard, he further referred to page 898 and 901 contending details of classification of account and nature of default with amount due. To further support his claim with the debt was not barred by limitation, he drew our attention of pages 930 and 931 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fault then also that was barred by limitation, as the application under section 7 had been filed on 11.09.2018. He further contended that as per the decision of the Hon'ble Supreme Court in the case of B.K.Educationat Services Pvt. Ltd. as reported in (2018 SCC online SC 1921) time barred petition could be filed only after obtaining condonation of delay in filing of the petition as per the provisions of Section 5 of the Limitation Act, 1963. In this regard, he drew our attention to para 48 of the said order. In support of his claim of debt being time barred, he further relied on the decision Hon'ble Supreme Court in the case of Gaurav Hargovindbhai Dave in Civil Appeal No. 4952 of 2019 order dated 18th September, 2019 and Jignesh Shah & another Vs. Union of India & another in Writ Petition (Civil) No. 455 of 2019) order dated September 25,2019. He also placed reliance on the decision of the Hon'ble Calcutta High Court in the case of Dr. Dipankar Chakraborty Vs Allahabad Bank as reported in 2017 SCC online Calcutta 874 for the proposition that if a proceeding was barred by imitation on the date of its initiation could not be held as valid for the reason that there was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporate Debtor in regard to competency of person, who has signed and filed application under section 7 of IBC, 2016. We have perused the contents of the relevant documents, which are wide enough in scope and also authorise the signatory of the petition to initiate Corporate Insolvency Resolution Process against the Corporate Debtor. ln this regard particular reference of para d(iv) read with para d(ii) can be taken. We are further of the view that the decision of the Hon'ble NCLAT in the case of Ramesh Chander Gupta(Supra) also supports the claim of the Financial Creditor. We are further of the view that in sum and substance, the authority appears to have been vested in the person who has acted in bonafide manner then such technical reasons should not be given an overriding effect on the merits of case. It is noted that the Board Resolutions authorizing the applicant is also attached. Thus, in view of above discussion, we do not find any merit in this contention of the Corporate Debtor and therefore,we reject the same. 8. The second plea is that the debt is barred by limitation, hence, petition cannot be filed. In this regard reliance has been placed on the decision of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e relevant pages have been placed on pages 930 and 931 of Paper Book. It is also not in dispute that Corporate Debtor submitted a proposal for revival on 16.02.2015 in which the amount of loan has been admitted. The limitation, if counted from that date, ends on February 15, 2018. As per provisions of Section 18 of the Limitation Act, 1963 if the acknowledgement of debt happens before the expiry of said period, the limitation gets extended. As held in catena of decisions that presentation of debt in the balance-sheet amounts to acknowledgement of debt. Thus, taking into consideration of provisions of Section 18 of Limitation Act, 1963 and this legal proposition together, the presentation of outstanding loan and fact of default in the balance-sheet as on 31st March, 2016 of the Corporate Debtor amounts to valid acknowledgement of the loan, hence, limitation has to be counted from this date. This view is guided by the ratio of the decision of the Hon'ble Supreme Court in the case of Jignesh Shah & another as mentioned in para 19 reproduced hereinbefore. We further hold that in this view of the matter there is no need to seek condonation of delay under Section 5 of Limitation Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 14 of the Insolvency & Bankruptcy Code, 2016 prohibits the following: a) The institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; b) Transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; c) Any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002); d) The recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. v. The supply of essential goods or services to the corporate debtor as may be specified shall not be terminated, suspended, or interrupted during moratorium period. vi. The provisions of sub-section (1) shall not apply to such transactions as may be notified by the Central Government in consultation with any financial secto ..... X X X X Extracts X X X X X X X X Extracts X X X X
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