TMI Blog2020 (6) TMI 660X X X X Extracts X X X X X X X X Extracts X X X X ..... lity could only be made within a period of limitation; i.e. three years. It is clear that on the day of filing the petition U/S 7 of the Code, there was a subsisting liability on the corporate debtor, and due to the acknowledgement of debt in writing, though the account of the corporate debtor which was classified as NPA on 15th Dec 2012, its validity got extended from time to time by acknowledgement of debt in writing and a fresh period of limitation started after the acknowledgement of debt as per provision of Sec 18 of the Limitation Act - the petition filed by the Respondent Oriental Bank of Commerce is not barred by limitation. Appeal dismissed. - Company Appeal (AT) (Insolvency) Nos. 940 And 941 of 2019 - - - Dated:- 14-2-2020 - Venugopal M., Judicial Member And V.P. Singh, Technical Member For the Appellant : Abhijeet Sinha, Rajat Sahgal, Mandavya Kapoor, Vikas Mehta and Saikat Sarkar, Advs. For the Respondent : Piyush Beriwal and Ankit Raj, Advs. JUDGMENT V. P. SINGH, TECHNICAL MEMBER. 1. These two Appeals emanates from the common order passed by the Adjudicating Authority/National Company Law Tribunal, Kolkata Bench, Kolkata in C.P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er2018 and the account of the 'Corporate Debtor' had been classified as an NPA as on 15th December 2012 when the amount of ₹ 5,31,14,402/- was due. 4. The 'Corporate Debtor' had stood guarantee for the loan of M/s Bahubali Commercial Private Limited for a sum of ₹ 3,03,17,328/-inclusive of interest till 27th March 2014, M/s Safal Dealers Private Limited for a sum of ₹ 3,84,05,667.60 inclusive of interest till 27th March 2014, M/s Gandhyanya Properties Private Limited a sum of ₹ 94,26,284.23 inclusive of interest till 30th April 2012, M/s Purushotam Trade Promotion Private Limited a sum of ₹ 89,05,156.85 inclusive of interest till 30th April 2012 and M/s Rameshwaram Trexim Private Limited a sum of ₹ 2,78,89,937.53 till 30th April 2012 the outstanding total comes to ₹ 19,04,12,812.21 (Rupees Nineteen core four lacs twelve thousand eight hundred twelve and twenty-one paisa only) In support of the claim of the Financial Creditor has filed a copy of the Certificate of Registration for modification of charge registered with the Registrar of Companies, Kolkata in respect of the Corporate Debtor as on 2nd November 2015 which conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ured its loan by the creation of equitable mortgage of the immovable properties of the Company including land . 8. During argument Ld. Counsel for the Appellant emphasizes on the para 14 of Short Reply filed on behalf of the Oriental Bank of Commerce, filed through Diary No.16582, dated 03rd December 2019, which is given hereunder for ready reference: The particulars of the accounts are given herein below: Sl. No. Account Date of Default Date of NPA Amount Outstanding Remarks M/s RDH Technologies Pvt. Ltd. Page No.84 of Appeal paper book Volume-1 16-9-2012 15-12-2012 ₹ 7,54,68,438/- Acknowledgement of debt and security on 01-08-2017 (page No.317 318 of appeal paper book volume 2) (ii) Demand notice on 26-9-2018 (page No.323 to 325 of appeal paper book volume 2) M/s Bahubali Comm. Pvt. Ltd. (page No.85 of Appeal paper book volume-1 19-2-2011 19-5-2011 ₹ 3,03,17,328/- As per paras No.10 11 herein before. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edgement in writing is given below for ready reference: 18. Effect of acknowledgement in writing. - (1) Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgement of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgement was so signed. (2) Where the writing containing the acknowledgement is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872 (1 of 1872), oral evidence or its contents shall not be received. Explanation. - For the purpose of this section, - (a) an acknowledgement may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come or is accompanied by refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to set off, or is addressed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was a deed of mortgage which was executed between the parties in this case. We may point out that an application under section 7 of the Code does not purport to be an application to enforce any mortgage liability. It is an application made by a financial creditor stating that a default, as defined under the Code, has been made, which default amounts to ₹ 1,00,000/- (Rupees one lakh) or more which then triggers the application of the Code on settled principles that have been laid down by several judgments of this Court. (Quoted verbatim) 13. Hon'ble Supreme Court has laid down the law that article 137 of Limitation Act, providing three years limitation period, while Article 62 of the Limitation Act, for recovery of debts secured with immovable property, provides 12 years period for limitation, but article 137 will apply to the Application filed under section 7 of the I B Code, even when the debt is secured by mortgaged or otherwise charged upon movable property. 14. The Learned Counsel for the Respondent - Financial Creditor contended that Hon'ble Supreme Court in case of Gaurav Hargovindbhai Dave v. Asset Reconstruction Co. (India) Ltd. [2019] 109 ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention to admit such jural relationship. Such intention can be inferred by implication from the nature of the admission, and need not be expressed in words. If the statement is fairly clear then the intention to admit jural relationship may be implied from it. The admission in question need not be express but must be made in circumstances and in words from which the court can reasonably infer that the person making the admission intended to refer to a subsisting liability as at the date of the statement. Stated generally courts lean in favour of a liberal construction of such statements though it does not mean that where no admission is made one should be inferred, or where a statement was made clearly without intending to admit the existence of jural relationship such intention could be fastened on the maker of the statement by an involved or far-fetched process of reasoning. In construing words used in the statements made in writing on which a plea of acknowledgment rests oral evidence has been expressly excluded but surrounding circumstances can always be considered. 7. The effect of the words used in a particular document must inevitably depend upon the context in whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of ₹ 50,000 as damages for breach by the employer and the said suit is filed beyond three years from completion of work and submission of the bill but within three years from the date of acknowledgment, the suit will be saved from bar of limitation only in regard to the liability that was acknowledged, namely, ₹ 75,000 and not in regard to the fresh or additional claim of ₹ 50,000 which was not the subject-matter of acknowledgment. What can be acknowledged is a present subsisting liability. An acknowledgment made with reference to a liability, cannot extend limitation for a time-barred liability or a claim that was not made at the time of acknowledgment or some other liability relating to other transactions. Any admission of jural relationship in regard to the ascertained sum due or a pending claim, cannot be an acknowledgment for a new additional claim for damages. (Quoted verbatim) 17. Based on the above judgment of the Hon'ble Supreme Court, it is apparent that section 18 of the Limitation Act, provides that where before the expiration of the prescribed period of limitation for a suit or application in respect of any property or right, an acknowl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aced reliance on agreement stipulating liquidation of claims of the Financial Creditor - Oriental Bank of Commerce with the Corporate Debtor RDH Technologies (P.) Limited dated 04th March 2015. Copy of the said agreement is annexed with the Appeal as Annexure A-5 (at page 245) of the Appeal paper book. 21. On perusal of the above document, it is clear that the Financial Creditor entered into an agreement stipulating liquidation of claims whereby the Financial Creditor revised the original sanction plan of ₹ 23 crores at the request of the Corporate Debtor, and it was agreed to release the residual portion of the term loan sanctioned to the Respondent herein. It is stated in the said agreement that the Corporate Debtor RDH Technologies (P) Limited has utilized the loan only to the extent of ₹ 7,38,61,086, against the sanctioned limit of ₹ 23 crores. After the modification revised sanctioned plan is being approved and the bank has agreed to release the residual portion of the term loan. It is also stated in the said agreement that the lending bank has agreed to release 1 to 9 floors in favour of the borrower to repay the lending bank proportionately from the outc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 03-2017 30,00,000 9. 29-07-2017 99,000 Based on the above part payment in the loan account, it is clear that the Corporate Debtor-Financial Creditor made the last payment on 29th July 2017. 27. The Learned Counsel for the appellant has placed reliance on the following judgments. In case case of Gaurav Hargovindbhai Dave (supra) at page 574 Hon'ble Supreme Court held that: 6. Having heard the learned counsel for both sides, what is apparent is that Article 62 is out of the way on the ground that it would only apply to suits. The present case being an application which is filed under section 7, would fall only within the residuary Article 137. As rightly pointed out by the learned counsel appearing on behalf of the appellant, time, therefore, begins to run on 21-7-2011, as a result of which the application filed under section 7 would clearly be time-barred. So far as Mr Banerjee's reliance on para 11 of B.K. Educational Services (P.) Ltd. [B.K. Educational Services (P.) Ltd. v. Parag Gupta and Associates, (2019) 11 SCC 633] , suffice it to say that the Report of the Insolvency Law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Court. In M.P. Steel Corpn. v. CCE [M.P. Steel Corpn. v. CCE, (2015) 7 SCC 58: (2015) 3 SCC (Civ) 510], this Court held: (SCC pp. 97-101, paras 54-60) 54. It is settled law that periods of limitation are procedural in nature and would ordinarily be applied retrospectively. This, however, is subject to a rider. In New India Insurance Co. Ltd. v. Shanti Misra [New India Insurance Co. Ltd. v. Shanti Misra, (1975) 2 SCC 840], this Court held: (SCC p. 844, para 5) A perusal of this judgment would show that limitation, being procedural in nature, would ordinarily be applied retrospectively, save and except that the new law of limitation cannot revive a dead remedy. This was said in the context of a new law of limitation providing for a longer period of limitation than what was provided earlier. In the present case, these observations are apposite in view of what has been held by the Appellate Tribunal. An application that is filed in 2016 or 2017, after the Code has come into force, cannot suddenly revive a debt which is no longer due as it is time-barred. In case of Jignesh Shah v. Union of India, (2019) 10 SCC 750 : (2020) 1 SCC (Civ) 48 : 2019 SCC OnLine SC 1254 at page ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 29. In this case, it is clear that on the day of filing the petition U/S 7 of the Code, there was a subsisting liability on the corporate debtor, and due to the acknowledgement of debt in writing, though the account of the corporate debtor which was classified as NPA on 15th Dec 2012, its validity got extended from time to time by acknowledgement of debt in writing and a fresh period of limitation started after the acknowledgement of debt as per provision of Sec 18 of the Limitation Act. 30. The Learned Counsel for the Appellants have assailed the impugned order only on the Limitation point. Based on the discussion as above, we are of the considered opinion that the petition filed by the Respondent Oriental Bank of Commerce is not barred by limitation. Hence Appeals are rejected. No order as to costs. 31. By the order of this Tribunal dated 11th September, 2019 the IRP was restrained from Constitution of Committee of Creditors'. Since Appeal has failed therefore, IRP is directed to proceed with the CIRP forthwith. Copy of the order may be communicated to the Adjudicating Authority/National Company Law Tribunal, Kolkata Bench, Kolkata by e-mail so that CIRP may be st ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
