TMI Blog2019 (10) TMI 1272X X X X Extracts X X X X X X X X Extracts X X X X ..... ended on 31.03.2016, the Corporate Debtor has categorically admitted the amount outstanding, amount of instalment payable and default in payment of interest. Copy of the 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 - 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 31 st March, 2016 of the Corporate Debtor amounts to valid acknowledgement of the loan, hence, limitation has to be counted from this date - in this view of the matter there is no need to seek condonation of delay under Section 5 of Limitation Act, 1963 in filing of application as canvassed by the Corporate Debtor. As per Regulation 8(2) of IBBI ( Insolvency Resolution Process for Corporate person) Regulation, 2016, the existence of debt due to the Financial Creditor may be proved on the bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ault 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 containing the notes of account forming part of Financial Statement of as 31 st March, 2016, where amount of loan due, details of security, the terms of repayment of loan were given in paras 3,3.1 and 3.2. He specifically drew our attention to para 3.3, wherein it was clearly mentioned that the Company had made certain defaults in payment of interest on term loan. Based upon such presentation in the balance-sheet and notes forming part thereof, he claimed that it was a case of acknowledgement of debt and, therefore, the petition was well within time as the debt was not barred by limitation. In support of this claim, he placed reliance on the decision of Mumbai Bench of NCLT in the case of TJSB Sahakari Bank Ltd. Vs Unimetal Castings Ltd. wherein, it was held that when the liability was shown in the balance-sheet, then that would amount to acknowledgement of debt by the Corporate debtor. He drew our attention to para 8 of the order, wherein the Tribunal had relied on various decisions in arriving at such conclusion. 4. The learned counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oposition 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 pending proceeding under other Act which was itself barred by limitation. He further placed reliance on the decision of the NCLT Kolkata Bench in the case of M/S Prowess International (P) Limited Vs M/S Shyam Steel Industries Limited passed in CP (IB) No. 159 / KB/ 2018 vide order dated 11 th May, 2018 for the proposition that presentation in the financial statements do not amount of acknowledgement of debt. 5. In the Rejoinder, the learned counsel for the Financial Creditor relied on the observations of the Hon'ble Supreme in para 19 of the order in the case of Jignesh Shah another Vs. Union of India another (Supra) for the proposition that Corporate Debtor had acknowledged the amount of loan in balance-sheet and consequently limitation stood extended as per the provisions of Section 18 of the Limitation Act, 1963. As regard to the proper authority of the person to file application Under Section 7 of the IBC, it was submitted that Mr. Arvind Kumar Gupta was competent to act on behalf of the Punjab National Bank and to institute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 Hon'ble Supreme Court in the case of Jignesh Shah another and B.K. Educational Services Pvt. Ltd.( Supra). 9. It is not in dispute that provisions of Limitation Act, 1963 are applicable to the proceedings under IBC,2016. In the above cases, the Hon'ble Supreme Court has held that in case of delay, the limitation could be extended Under Section 18 of Limitation Act, 1963 by the act of parties as prescribed thereunder and the application can be filed after getting condonation of delay under Section 5 of Limitation Act, 1963. The findings of the Hon'ble Supreme Court in the case of B.K. Educational Services in para 48 of the order are reproduced as under: 48. It is thus clear that since the Limitation Act is applicable to applications filed under Sections 7 and 9 of the Code from the inception Of the Code, Article 137 of the Limitation Act gets attracted. The right to sue , therefore, accrues when a default occurs. If the default has occurred over three years prior to the date of filing of the application, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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, 1963 in filing of application as canvassed by the Corporate Debtor. 11. Having the said so, we further find that as per Regulation 8(2) of IBBI ( Insolvency Resolution Process for Corporate person) Regulation, 2016, the existence of debt due to the Financial Creditor may be proved on the basis of record available in information utility or other relevant documents or financial statements showing that the debt has not been paid. Thus, on this basis also existence of debt due and payable in alive mode stands proved. 12. As far as the reliance on the decision by Corporate Debtor on the decision of the NCLT Kolkata Bench in the case of M/S Prowess International (P) Limited Vs M/S Shyam Steel Industries Limited upra) is concerned, the said decision is no longer holds the field for the reason of subsequent judicial decisions, wherein presentation of debt in financial statements has been held as acknowledgement. We further consider it pertinent to point out that in the case of M/S Prowess International (P) Limited Vs M/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 sector regulator. vii. The order of moratorium shall have effect from the date of admission till the completion of the corporate insolvency resolution process. viii. Provided that where at any time during the corporate insolvency resolution process period, if the Adjudicating Authority approves the resolution plan under sub-section (1) of Section 31 or passes an order for liquidation of corporate debtor under Section 33, the moratorium shall cease to have effect from the date of such approval or liquidation order, as the case may be. ix. Necessary public announcement as per Section 15 of the IBC, 2016 may be made. x. Shri Animesh Mukhopadhyay , having registration No.IBBI/ IPA-OOI/1P-P00124/2017-18/10266 email id animesh_fca@yahoo.co. is appointed as Interim Resolution Professional for ascertaining the particulars of creditors and convening a Committee of Creditors for evolving a resolution plan. The Financial Creditor to pay a sum of ₹ 3,00,00,000/- ( Rs.Three Lakhs) to IRP as adva ..... X X X X Extracts X X X X X X X X Extracts X X X X
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